Parenting decisions and gender dysphoria: what is the impact of the Court of Appeal decision in Bell/Tavistock?
The Court of Appeal has overturned the High Court decision that children under 16 lack the capacity to consent to the use of puberty blockers.
High Court Ruling — December 2020
Puberty blockers are prescribed to children experiencing gender dysphoria and have the effect of “pausing” puberty by suppressing the release of hormones.
In December 2020 the High Court ruled that children under 16 lacked the capacity to consent to the use of puberty blockers.
The High Court judgment stated that it was “highly unlikely” that a child aged 13 or under would be able to give informed consent and that it was “very doubtful” that a child of 14 or 15 would fully understand the implications of proceeding with treatment of this nature.
The three High Court judges also suggested that the medics treating children under 18 may need to apply to the court for permission before prescribing puberty blockers.
The original case was brought by Keira Bell (referred to as Quincy Bell in the court documents) and the mother of a teenager who is on the waiting list for treatment. Keira Bell who is now in her mid-20s was prescribed puberty blockers at 16. Thereafter she was prescribed the male hormone testosterone and underwent surgery to remove her breasts. Although she was initially happy with the treatment she received, she later regretted her decision to transition and has criticised the Tavistock Clinic for failing to properly challenge her at the outset of the process.
Permission granted to appeal High Court judgment
Following the High Court ruling last December, The Tavistock Trust, which runs the UK's only youth gender identity clinic, sought to challenge the decision and was subsequently granted leave (permission) to appeal. Pending the outcome, they decided to suspend all new referrals for puberty blockers and cross-sex hormones for under 16s.
Human rights group Liberty, and several other interested organisations, intervened in the appeal. They argued that the High Court had imposed a serious restriction on the rights of transgender children and their ability to access essential treatment.
The Court of Appeal judgment
On 17 September the Court of Appeal held that it was inappropriate for the High Court to give such guidance as it had the effect of requiring applications to court in circumstances where the court itself had recognised that there was no legal obligation to take such action.
As a result, the High Court decision was overturned and the position predating December 2020 has been reaffirmed. The responsibility to determine whether a child has capacity to consent to medical treatment rests firmly with the doctors, as opposed to judges. This means that the courts are removed from the decision-making process in all but the most complex of cases.
In handing down their judgment the Court of Appeal judges recognised “the difficulties and complexities” involved in the case but that “it was for the clinicians to exercise their judgment knowing how important it is that consent is properly obtained according to the particular individual circumstances.”
Where does this now leave children experiencing gender dysphoria and their parents?
The Court of Appeal ruling means that children under 16 can now take puberty blockers without their parents’ consent provided the clinician is satisfied that they are “Gillick competent.” To be Gillick competent the child needs to be of sufficient maturity and intelligence to fully understand what is being proposed, the risks involved and the implications of proceeding with treatment.
Any child who has gender dysphoria will be seen by a multidisciplinary team at GIDS (Gender Identity Development Service). This team will normally include a psychologist, a psychiatrist, a family therapist and a social worker. The team will then undertake a detailed assessment of the child over a 3-to-6-month period, before deciding on the most suitable option/treatment for them. One such option is puberty blockers, but these are usually only considered appropriate in cases where the young person has been exhibiting signs of gender dysphoria for a prolonged period.
There is limited data available on the long-term side effects of puberty blockers and during the High Court hearing concerns were raised about the impact such drugs could have on the development of the teenage brain and children’s bones. They can in some instances also cause side effects such as hot flushes, fatigue and mood swings.
It follows that even in cases where the parents support their child’s decision to transition, they may have reservations about the steps which should be taken and the timing of any such steps. This in turn can lead to conflict within the family of a child experiencing gender dysphoria, either because both parents are opposed to the treatment proposed by the clinician and find themselves at odds with their own child, or because the parents themselves cannot agree on the best course of action.
Even if the child in question is considered to be Gillick competent, it is considered good practice for the clinician to meet with the parents and involve them in the decision-making process, providing the child agrees. The clinician will then encourage the family to try and reach a consensus with regards to the best way forward. Where that is not possible, but the clinician assesses the child to be Gillick competent, the clinician can proceed with treatment with only the child’s consent. It is not necessary for the clinician to obtain the consent of the parents.
In such circumstances, if one or both parents do not accept that the child is Gillick competent or that the treatment is in their best interests, it will be open to them to make a court application.
How has the Court of Appeal judgment been received?
The Court of Appeal’s decision has been welcomed by organisations such as Liberty and LGBTQ charity Stonewall. Nancy Kelly, CEO of Stonewall commented that the ruling was “a huge relief for trans people and their families, as well as the wider trans community.”
The Tavistock has indicated that it will continue to strive to improve the quality of care to its patients. It intends to set up an independent multi professional review group to confirm whether “clinical decision making has followed a robust consent process.”
Keira Bell, who has expressed her disappointment in respect of the ruling, now plans to seek leave to appeal to the Supreme Court.
For sensitive guidance on resolving disputes related to children and gender dysphoria, contact our child law solicitors.