The transgender community has responded with shock and concern to the decision of the High Court in Bell v Tavistock, judgment for which was handed down on 1 December 2020. The case was a judicial review taken against the Tavistock and Portman Gender Identity Development Service (GIDS) in respect of its referrals of children under 16 and young people under 18 to NHS trusts for the prescription of puberty blockers (PBs). The Administrative Court’s decision has placed a question mark over whether trans children and young people will continue to be able to access PBs on the NHS in the UK.
The claimants, former GIDS patient Kiera Bell and the mother of a 15 year old autistic child currently on the GIDS waiting list, argued that GIDS should not be referring children and young people under the age of 18 for PBs because they were not competent to consent. The claimants stressed the vulnerability of trans children and young people, and the life-changing significance of PBs which, they said, were almost always a path to further irreversible treatment with cross-sex hormones.
GIDS argued that transgender children and young people were capable of giving consent and that their procedures and policies ensured they were given all necessary information to do so. GIDS gave detail about their specialist professionals who took time, in an age appropriate way, to discuss with each child about their gender dysphoria. GIDS was clear that if it did not consider a child to be “Gillick competent” (having sufficient understanding and intelligence to understand the nature of treatment) it would simply not proceed with PB treatment. Very little focus was placed by GIDS on whether parents (with parental responsibility) could consent to treatment since it was their policy to take consent directly from the child or young person.
The issue is a tricky one, since the legal capacity of children and young people to consent to medical treatment is individual and children reach ‘Gillick competence’ at different ages. However, since PBs are used to pause puberty changes, age is a factor and clinically it may be best to give treatment earlier: for obvious reasons, it makes little sense to defer prescription of PBs until after someone reaches the age of 18.
The court accepted that gender dysphoria existed and acknowledged that it could cause extreme distress which may be alleviated by PBs. However, it found that in order for a child to have the requisite competency to consent to PB treatment the child or young person would need to understand, retain and weigh up the following 8 factors:
The court concluded that it was ‘highly unlikely’ that a child aged 13 or under would ever be competent to give legally-valid consent, and ‘very doubtful’ that a child aged 14 or 15 could properly understand and weigh up the long term risks and consequences. For young persons aged 16 and 17, the court acknowledged the legal presumption of consent, but nonetheless said there may be cases in which questions over competency should be raised by clinicians.
Following the judgment, NHS England published an ‘amendment’ to its service provision for GIDS which has said that children under 16 should not now be referred by GIDS for PBs unless a ‘best interests’ court order has been made. NHS England has also asked clinical reviews to be conducted in respect of children and young people already being prescribed PBs to consider whether court applications need to be made to authorise continuing treatment.
This has understandably sparked immediate concern for trans children and young people, with fears they may find it more difficult going forward to access treatment which would have previously been available to them (or is already being provided). There are, according to the judgment, 161 children currently receiving PBs through GIDS and more than 2,500 children and young people on the waiting list for treatment. Many families are very worried about what the judgment means for them.
However, the judgment itself (made by the Administrative Division of the High Court) is unclear about precisely what it means for families in practice, and how any ‘best interests’ application made to the Family Division of the High Court would work.
As specialists in LGBT family law, NGA Law is looking closely at these issues. We are committed to supporting transgender young people and their families to access the treatment they need as easily and practically as possible. We are able to offer expert family law advice to those who need it and encourage you to contact us if you are affected by the judgment.
You may also wish to contact the charity Mermaids which is helping families by providing support and information.Tags: Bell v Tavistock, best interests order, GIDS, High Court, judicial review, Keira Bell, Mermaids, non-binary, puberty blockers, Tavistock and Portman, trans, transgender