The Court of Appeal has heard an appeal brought by the Tavistock Centre in the “puberty blockers” case: R (Bell and another) v. Tavistock and Portman NHS Foundation Trust.
The Tavistock and Portman NHS Trust (“the Tavistock Centre”), which runs the only Gender Identity Development Service (“GIDS”) for children and young people in England, has appealed the decision of the High Court made last year that children and young people under 16 considering gender reassignment are not competent to give informed consent to being prescribed drugs (known as “puberty blockers”) to suppress the physical development that would otherwise take place during puberty.
Who brought the “puberty blockers” case?
The “puberty blockers” case, involving the Tavistock Centre, was brought by two applicants: Keira Bell, who had undergone gender reassignment treatment including puberty blockers as a teenager but subsequently regretted doing so and reverted to living as a woman, and the mother of a 15-year-old autistic young woman experiencing gender dysphoria (a mismatch between their perceived identity and their sex at birth) who was on the waiting list for gender reassignment (but would not have been eligible for treatment at the GIDS service of the Tavistock in any event).
The two applicants argued that informed consent could not properly be given by young people under 16, the use of puberty blockers was controversial and experimental, there was limited evidence of the benefit of such treatment, which had life-changing and lifelong consequences, and that such treatment should only be given if the court authorised it.
What was the High Court’s finding?
In December 2020, the High Court found that children/young people under the age of 16 experiencing gender dysphoria are unlikely (and in the case of children aged 13 and under, highly unlikely) to be mature enough to understand the long-term risks and consequences, so as to be able to provide informed consent to being prescribed puberty blockers.
The High Court made a distinction between children and young people under and over the age of 16 (there being a legal presumption of competence to consent to medical treatment in relation to the latter) but even queried whether the court should always be involved where consideration is being given to puberty blockers being administered to young people over 16.
However, following the decision of another recent case, AB v CD and others, it is clear that court oversight of the administration of puberty blockers is not required, except where there is a disagreement between the parents, the child/young person and the clinicians, and parents can validly consent to the administration of puberty blockers on behalf of children under 16.
As a result of the High Court decision, the Tavistock Centre suspended all new referrals to their GIDS service for puberty blockers and cross-sex hormones to be administered to children and young people under 16; their policy being to rely on the consent of the child or young person being treated, rather than that of their parents.
What are the Tavistock Centre’s grounds of appeal?
The Tavistock Centre have challenged the decision of the High Court in the Court of Appeal, arguing that children and young people under 16 are capable of giving consent to such treatment, depending on their age and understanding, saying that they ensure that such children are given all the necessary information to enable them to make their consent valid.
Their legal team, led by Fenella Morris QC, submitted to the Court of Appeal that the decision of the High Court “countered the statutory presumption of the ability of young people aged 16 and 17 to consent to medical treatment… ..undermined the entitlement of children under the age of 16 to make decisions for themselves when they have been assessed individually as competent to do so by their treating clinician….” (and) “…intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.”
They criticised the quality of the expert evidence that had been submitted by the applicants to the High Court and argued that that the High Court had been wrong to accept that the treatment of gender dysphoria with puberty blockers was experimental, when there was more than 20 years’ evidence of its effectiveness.
The judgement of the Court of Appeal in this controversial and interesting appeal case (heard in June 2021) is now awaited.
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