We are delighted that the Court of Appeal has overturned the decision of the High Court in the case of Bell v Tavistock. You can find more detail about the history of the case, which has for the past nine months effectively stopped puberty blocking treatment for trans children on the NHS, on our blog.
In a scathing judgment, the Court of Appeal has ruled that the High Court was wrong to require transgender children to understand the implications of potential future treatments (hormones and surgery) in order to provide consent to puberty blockers, and to say that the court should instead step in to say whether treatment was in the child’s best interests in every case. It has said that the High Court should not have tried to give blanket age limits on adolescents’ ability to consent, and that applications to the court should be exceptional rather than the norm. In simple terms, decisions about children’s treatment are best left to doctors and not judges.
The Court of Appeal rebuked the High Court for having allowed the claimants, who sought a court declaration that transgender children and young people were incapable of consenting to treatment with puberty blockers, to use evidence from their chosen experts. The Court of Appeal noted that “none of [the evidence] complied with the rules regarding expert evidence and a good deal of it is argumentative and adversarial” – and indicated that the High Court did not take into account a well-established legal principle that unless an Act of Parliament says otherwise, “a minor’s capacity to make his or her own decisions depends upon the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit”.
However, there is still a long way to go before transgender children can readily access the life-saving medical care that they need. When the High Court decision was handed down the NHS suspended all treatment of transgender children and young people receiving puberty blockers or cross-sex hormones within days pending the introduction of additional controls. The NHS has not yet reversed these measures – and those affected by the initial ruling have endured nine months of additional gatekeeping and uncertainty that they can’t get back. Many will have undergone further pubertal development that could have been avoided and even now don’t know when they will be able to access treatment.
By the time the case reached the Court of Appeal permission had been granted for Brook (which provides sexual health services including pregnancy advice), Gendered Intelligence (a transgender charity) and the Endocrine Society to intervene.
The Court of Appeal highlighted a number of errors in the High Court’s approach. In particular, the High Court had relied on untested “expert” evidence submitted by Keira Bell’s lawyers, which did not meet the court’s rules, and had wrongly relied on that evidence. The High Court had also, it said, conflated correlation and causation by concluding that the fact that many patients on puberty blockers go on to have cross-sex hormones meant that prescribing puberty blockers inevitably caused a transition to those later separate treatments (which are only available after the age of 18 but have more permanent effects on things like fertility), rather than concluding that the common correlation was simply because of effective filtering of patients by the Tavistock at an early stage . The Court of Appeal said it was not the role of judicial review proceedings to resolve “contested issues of fact, causation and clinical judgment”. The Court of Appeal also noted that even the High Court had not ruled the Tavistock’s practices unlawful and that its wider comments should therefore never have been made, and the case should have been thrown out.
The High Court had also considered the case of Gillick, which establishes what must be shown before a child or young person can consent to medical treatment themselves rather than a doctor seeking parental consent. Gillick concerned a girl under 16 seeking contraceptive advice, and in that case the court held that this would be lawful provided that she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment, including what the treatment involves (such as the risks to her health and the emotional impact of terminating a pregnancy).
In reviewing Gillick and other case law, the High Court had concluded that since many patients who take puberty blockers also proceed to cross-sex hormones then in order to consent to puberty blockers a minor would also need to understand the effect of taking cross-sex hormones. The court thought that it would be difficult for a child to weigh up the benefits of puberty blockers against loss of fertility or “full sexual function”, and therefore indicated that it would be “highly unlikely” a 13 year old could ever consent to puberty blockers. The court was “very doubtful” that 14 and 15 year olds could consent, and hinted that in cases of 16-18 year olds clinicians might still wish to apply to court before commencing treatment.
However, the Court of Appeal said this was incorrect, and observed that when the case was decided in the 1980s the proposal to provide under 16s with contraception was also “highly controversial”. The court held that nothing about Keira Bell’s case allowed for a real distinction to be made between her case and Gillick. The High Court was therefore wrong to give blanket guidance about ages at which patients were likely to be Gillick competent, and in doing so wrongly placed additional limits on the Gillick test for competence.
Keira Bell’s legal team have indicated that they intend to appeal to the Supreme Court, though it is not clear whether such permission will be given.
Despite the positive result from the Court of Appeal, which has been a source of relief for trans people and their allies, the damage of the initial High Court decision is far-reaching.
Within hours of the High Court decision in December 2020, the NHS updated its service specification to suspend all new referrals for puberty blockers for under 16s unless a court had made a best interests order. Any patient under 16 already being treated with puberty blockers was required to undergo a clinical review before receiving any more treatment (whether blockers or cross-sex hormones), and even then a court order would be necessary first.
This sudden withdrawal of treatment services left many trans adolescents in extreme distress with no information about if or when the time-sensitive treatment they had been expecting would be available. Parents were devastated about the impact on their children’s mental health, particularly in cases where treatment was essentially being withdrawn and they had seen a significant improvement in their children’s wellbeing.
In a separate challenge to the High Court’s decision, a parent of a trans child brought a case in March 2021 asking the court to rule that, even if children could not consent to their own treatment, their parents could do so instead. The court held that parents and carers who have parental responsibility can give the necessary consent on a child’s behalf. However, the NHS did not reinstate a straightforward pathway to treatment services on the basis of parental consent following this judgment, ruling that a new panel of experts would instead need to review every case. Up to the point of the Court of Appeal decision this month, we understand that not a single case has yet been considered by this new panel.
Therefore, although the Court of Appeal’s unequivocally clear ruling is extremely welcome, it now needs to be put into practice with a swift reinstatement of NHS services for trans children.
Tags: Bell v Tavistock, Court of Appeal, GIDS, Gillick, puberty blockers, Tavistock, trans, transgender