Treating children for gender dysphoria: Bell v Tavistock & Portman NHS Trust

Background

Bell & Anor v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 has little, ostensibly, to do with “religion”, but relates to an issue which some would feel had moral and social dimensions – the treatment of children for gender dysphoria, defined by the Court of Appeal as

“a complex condition that occurs in both children and adults. It involves, in the simplest terms, a strong desire to be and to be treated as being of the gender other than their natal sex at birth. Those diagnosed with it suffer associated significant distress or impairment in function. A range of clinical interventions may be prescribed” [2].

The Trust (“Tavistock”) operates a Gender Identity Development Service (GIDS) for patients up to the age of 18 suffering from gender dysphoria, and the Court noted that

“The treatment of children for gender dysphoria is controversial. Medical opinion is far from unanimous about the wisdom of embarking on treatment before adulthood. The question raises not only clinical medical issues but also moral and ethical issues, all of which are the subject of intense professional and public debate” [3].

The first claimant in the judicial review proceedings was a former patient of Tavistock who had been treated with puberty blockers as a 16-year old, had begun surgical intervention as an adult to transition from female to male, and had ended her treatment having changed her mind. The second was the mother of a child with gender dysphoria who had been referred to Tavistock but had not yet had an appointment [4].

The Court described “an odd feature of the claim”:

“… Contrary to its underlying premise, Tavistock does not prescribe puberty blockers. Patients with gender dysphoria are referred to Tavistock from all over the country for assessment. There is usually a wait of between 22 and 24 months before they can be seen for a series of assessment appointments. If, following assessment, Tavistock is satisfied that it is medically appropriate to do so, the patient is referred to the paediatric endocrinologists at either University College London Hospitals NHS Foundation Trust (“UCH”) or Leeds Teaching Hospitals NHS Trust (“Leeds”) (together, the “Trusts”). A referral takes place only if Tavistock assesses that the child would benefit from treatment and is capable of giving consent to puberty blockers (the first step in any such treatment). Referral requires the consent of the child and of the parents. Each Trust thereafter, independently of Tavistock, makes its own clinical assessment and prescribes puberty blockers only after deciding that to be the proper medical course and after obtaining what each considers to be valid consent from the child. Consent is obtained not only from the child in question but also from the parents of the child. It was not suggested that there was any criticism of the consent-taking process at either of the Trusts. Neither Trust was joined by the claimants as a defendant or interested party in these proceedings but instead intervened because it was their actions in prescribing puberty blockers that were under attack…” [5].

The Divisional Court had found no illegality in the policy or practice of Tavistock or of UCH or Leeds [6] and had rejected a subsidiary claim “that the information provided by [Tavistock] and the Trusts is inadequate to form the basis of informed consent.” It had had “no problem” with the information given but expressed concern about the ability of children to understand and weigh that information [7]. Rather than dismissing the claim for judicial review, however, it had made a declaration specifying precisely what informed consent would require in those circumstances. It had also given extensive “guidance” at para [138] of its judgment:

“… to achieve Gillick competence  [summarised at [52] to [57]] the child or young person would have to understand not simply the implications of taking [puberty blockers] but those of progressing to cross-sex hormones. The relevant information therefore that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to [puberty blockers], would be as follows: (i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking [puberty blockers] go on to [cross-sex hormones] and therefore that s/he is on a pathway to much greater medical interventions; (iii) the relationship between taking [cross-sex hormones] and subsequent surgery, with the implications of such surgery; (iv) the fact that [cross-sex hormones] may well lead to a loss of fertility; (v) the impact of [cross-sex hormones] on sexual function; (vi) the impact that taking this step on this treatment pathway may have on future and life-long relationships; (vii) the unknown physical consequences of taking [puberty blockers]; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain” [8].

The Divisional Court’s declaration affected only those under 16, though para [138] of its judgment did cover those aged between 16 and 18. The guidance, however, covered children of all ages and recommended that the sanction of the court should be sought before prescribing puberty blockers, even though there was no legal requirement to do so [9]. Further, it had stated in para [145] that

“… it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [puberty blockers]. In respect of children aged 14 or 15 we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent” [9]

Tavistock appealed against the declaration, submitting that the Divisional Court’s guidance was wrong in law. There were eight grounds of appeal:

Grounds 1 and 2 were that the court had misapplied the law in Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112.

Ground 3 was that the court’s conclusions were inconsistent with the Family Law Reform Act 1969.

Grounds 4 and 5 challenged the court’s conclusion that prescribing puberty blockers was “experimental” and that their effects were “lifelong” and “life-changing”.

Grounds 6 and 7 challenged the court’s reliance on expert evidence adduced by the claimants – without permission – which contradicted the evidence of Tavistock and the Trusts and making findings of fact upon it and relying on it to resolve clinical differences of opinion.

Ground 8 was that the approach of the court discriminated unjustifiably against children with gender dysphoria, contrary to Article 14 ECHR [6].

The judgment

The Divisional Court had accepted that, on a proper interpretation of Gillick, children under 16 and young people aged between 16 and 18 could consent to embark on a course of puberty blockers. It was lawful for Tavistock to refer such patients to UCH or Leeds and for those Trusts to prescribe puberty blockers following informed consent from the child and there was no legal obligation to seek a “best interests” ruling from the court [58]. Therefore, the question before the Court of Appeal was whether the Divisional Court, not having held that Tavistock’s and the Trusts’ policies and practices were unlawful, was right to make the declaration and give the guidance that it did [59].

At [80], the Court of Appeal quoted Lord Scarman in Gillick as follows:

“I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give consent valid in law.”

The Court concluded that whether or not valid consent had been given in any particular case was a question of fact dependent on “the individual circumstances of any child and the surrounding circumstances of the clinical issues” and that it was “a matter of clinical judgement, tailored to the patient in question, how to explain matters to ensure that the giving or refusal of consent is properly informed” [81]. The case was not concerned with a child who lacked capacity for the purposes of the Mental Capacity Act 2005. Such a child would not be treated through GIDS because informed consent was always required from the child before any treatment is given. A comparison between the exercise of assessing Gillick competence and the process envisaged under the Mental Capacity Act 2005 was of assistance:

“Moreover, since the declaration formally concerns those under 16 it is not concerned with children covered by section 8 of the 1969 Act” [83] and “the effect of the guidance was to require applications to the court in circumstances where the Divisional Court itself had recognised that there was no legal obligation to do so” [86].

As to whether or not the Divisional Court should have issued the guidance, the Court of Appeal recognised that it stemmed from the Court’s “understandable concern” for the welfare of children with gender dysphoria “who, it is common ground, are deeply distressed and highly vulnerable”. But the Divisional Court

“was not in a position to generalise about the capability of persons of different ages to understand what is necessary for them to be competent to consent to the administration of puberty blockers” [85] … Moreover, the effect of the guidance was to require applications to the court in circumstances where the Divisional Court itself had recognised that there was no legal obligation to do so” [86].

The Court of Appeal concluded, in short:

“… that it was inappropriate for the Divisional Court to give the guidance concerning when a court application will be appropriate and to reach general age-related conclusions about the likelihood or probability of different cohorts of children being capable of giving consent. That is not to say that such an application will never be appropriate. There may be circumstances where there are disputes between one or more of clinicians, patients and parents where an application will be necessary, even if they are difficult to envisage under the service specification and SOP with which this case is concerned” [89: emphasis added].

The appeal was allowed and the declaration set aside. In addition, the Court held that it had been inappropriate for the Divisional Court to provide the guidance [91].

FC & DP

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Cite this article as: Frank Cranmer and David Pocklington, “Treating children for gender dysphoria: Bell v Tavistock & Portman NHS Trust” in Law & Religion UK, 11 October 2021, https://lawandreligionuk.com/2021/10/11/treating-children-for-gender-dysphoria-bell-v-tavistock-portman-nhs-trust/.

 

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