On 1 December 2020, the UK High Court ruled on the issue of whether a child or young person (between the age of 16-18 in England and Wales) could give valid consent to the administration of puberty-blocking drugs (PBDs) for treatment of gender dysphoria (GD). Children and young persons suffering with GD are referred to the Gender Identity Development Service (GIDS) located at The Tavistock Centre, Tavistock Portman NHS Foundation Trust, the defendant of the case.

 Quincy Bell and Mrs. A were the claimants in the case. The former concerned Kiera Bell who was prescribed puberty blocking drugs at the age of 15 to deal with her GD. Mrs. A is a mother who was concerned that her 15-year-old daughter with GD would be referred by GIDS for the prescription of PBDs, akin to Kiera Bell. Both claimants questioned the competence of children and young persons under the age of 18 to give consent to the administration of such drugs. Both claimants contended the information given to ensure informed consent was both misleading and insufficient and addressed an absence of procedural safeguards, resulting in an infringement of the rights of children and young persons under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

A child or young person’s competency to give valid consent to treatment and the process of obtaining said treatment was the sole legal issue in the case and the court’s primary concern.

CONTEXT

 The NHS Foundation Trust (the defendant) employs specialist staff and since 1989 has provided a gender identity development service to provide care for patients up to 18-years-old suffering from GD. GIDS was commissioned by the National Health Service Commissioning Board.

 Under section 3B of the NHS Act 2006, the Secretary of State has exercised powers that NHS England must arrange for the provision of services, including a gender identity development service specifically for children and adolescents in addition to gender dysphoria services more generally.

 Under Schedule 2, Part A of the NHS Standard Contract, the service is to provide specialist assessment, consultation, and care, including psychological support and physical treatment in order to “help reduce the distressing feelings of a mismatch between their natal (assigned sex and their gender identity), whilst also providing support to family and carers of the children and young persons affected.”

 GIDS receives many referrals throughout England and Wales. If a child is successful, they will be placed on the waiting list for a wait period of 22 to 26 months. GIDS prescribes three stages of physical intervention for children and young persons with GD. Firstly, children who have reached “Tanner Stage 2” (beginnings of physical development of puberty) will be administered GnRHa (a form of puberty blocker). Secondly, the treatment of administering cross-sex hormones (CSH) will be prescribed only for those around the age of 16. Thirdly, the stage of gender reassignment is available only to those over the age of 18, upon legally becoming an adult.

The assessment process takes approximately three to six sessions over a period of six months or longer, depending on the age of the child, after which a care plan will be agreed upon with the child or young person and their family. If the young person has reached Tanner Stage 2, GIDS will refer the young person for consultations and physical assessment with an endocrinologist to be prescribed PBDs. This is discussed with the young person beforehand; the consent of the child must be given before any prescription of PBDs can be administered. The decision must come from the young person themselves.

 In 2011, the Gender Identity Development Service (GIDS) started referring children between the ages of 12 and 15 (once established in puberty) for puberty blockers, described as an “early intervention stage”. For the year of 2019/2020, 161 children were referred for puberty-blocking drugs (PBDs). 26 of those children were 13 or younger, and 95 of those children were under 16-years-old—a number that increases significantly each year. GIDS advises it is a physically reversible treatment if stopped, although the court established the current reversibility was unclear and that as part of the clinical path, a high proportion of young people who started PBDs moved onto CSH (stage 2 of GIDS treatment plan).

THE COURT’S CONCLUSION 

The main consideration before the court was whether a child or young person could achieve competence in respect to the decision to take PBDs for gender dysphoria (GD).

Firstly, the court questioned the extent to which a child or young person can comprehend or fully understand the short and long-term effects of the “experimental treatment” of PBDs as the court defines it, due to the limited and lack of evidence of its efficacy. The purpose of the treatment was the court’s second concern. The defenders contended that the PBDs gave the child or young person suffering from gender dysphoria the ability to “pause to think in a ‘hormone neutral’ state”. However, the court questioned whether this was the intended purpose as opposed to preventing the effects of puberty, which would later require surgical and chemical intervention. Thirdly, the court highlighted the “complex and life changing consequences of the treatment going to ‘heart of an individual’s identity’”.

The capacity of the child or young person to give consent in respect to achieving competence was considered in the case of Gillick v. West Norfolk and Wisbech Health Authority. Gillick considered the legality of giving contraceptive advice to a child without parental consent. The House of Lords held that if a girl under 16 had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment and certain conditions were satisfied, then a doctor could lawfully provide contraceptive advice and treatment to said child. The court stated that for Gillick competence to be achieved, the child or young person must understand the progression from PBDs to CSH. Specifically, the child or young person must be able to understand, retain, and evaluate:

(i)             the immediate consequences of the treatment in physical and psychological terms;

(ii)           the fact that the vast majority of patients taking PBDs go on to CSH and therefore that s/he is on a pathway to much greater medical interventions;

(iii)         the relationship between taking CSH and subsequent surgery, with the implications of such surgery;

(iv)          the fact that CSH may well lead to a loss of fertility;

(v)           the impact of CSH 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 PBDs; and

(viii)      the fact that the evidence base for this treatment is as yet highly uncertain.

The court concluded it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with PBDs. For children between the ages of 14 and 15, it was determined to be very doubtful that a child could understand the long-term risks and consequences of treatment so as to have sufficient understanding to give consent. The ability of a child or young adult to apprehend the effects of such treatment in their adult life is difficult to imagine. Combined with the limited knowledge, lack of evidence of the long-term consequences of taking PBDs is what the court considered to be the primary concern when analysing consent. This is why the court did not support the position that providing a child or young person with more information would enable the child to achieve Gillick competency, as was put forward by the defence.

However, as stated in the judgment, there is the “possibility of achieving competence at an older age”. For a young person over the age of 16, the court reiterates the presumption of capacity under section 8 of the Family Reform Law Act 1969, but this does not deter court intervention to protect the child’s best interests, as recognised in the case of Re W. Court intervention can be sought by clinicians if they consider it inappropriate to move forward with treatment of puberty-blocking drugs (PBDs) or cross-sex hormones (CSH). 

The defendants argued that the decision for a young person to receive treatment with PBDs should be made by the patient and not by the court, which would be considered an intrusion of a child’s autonomy. The court concurred, stating that the autonomy of a young person should be protected, but it also addressed its own role in protecting children, and particularly vulnerable children, with respect to the life-altering consequences of puberty blockers in treating gender dysphoria.

GILLICK COMPETENT AFTER ALL

As it stands, a child or young person under 16-years-old must be Gillick competent in consideration of the eight points of consent to use puberty blockers for treatment of gender dysphoria. For young people over the age of 16, court intervention can be pursued by the clinician as already mentioned. The court intends to supervise the use of PBDs whilst the “efficacy” of the treatment remains unsupported by necessary data.

The legal position of parental consent was omitted from the facts of this case, as the court was specifically focused on the competence of a child or young person to consent. However, clarification of parental consent was confirmed in the case of AB v. CD & Ors on 26 March 2021 in a private court application. The judgment did not affect the position of Bell, but it confirmed that parents can legally consent on behalf of their child as they are in a position to understand and consider the best interests of the child in the short and long term—omitting the need for court supervision. 

THE APPEAL

An appeal of Bell v. Tavistock, which was initially refused by the High Court, was awarded to NHS Trust in January of this year. The appeal began this month on 22 June and is currently underway. The respondents to the appeal have said the puberty blockers are a "controversial and quite possibly unique experimental treatment," as supported by a review of puberty blockers published by NICE earlier this year. Nonetheless, Brook, Gendered Intelligence and the Endocrine Society, UCL Hospitals NHS Foundation Trust, The Association of Lawyers for Children, and Liberty have all intervened in the appeal case. Liberty addressed the article 14 breach of the European Convention of Human Rights and warned of the long-term risk if trans children do not receive access to treatment.

The judgment is yet to be released.

Originally from York, Catriona studied an English literature degree at undergraduate level and then progressed to study her LLB (graduate entry) at the University of Edinburgh. She is passionate about human rights law and intends to start her Human Rights Law LLM in September.

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