Bell v Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)

Competence/capacity and puberty blockers (1) The relevant information 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 he or she 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 PBs; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain. (2) Gillick competence is treatment- and person-specific but the court gave clear guidance that it is highly unlikely that a child aged 13 or under, and very doubtful that a child aged 14 or 15, would ever be Gillick competent to give consent to being treated with puberty blockers. (3) There is a presumption that young people aged 16 or over have capacity to consent but, given the long-term and potentially irreversible consequences and the experimental nature of the treatment, clinicians may well consider that it is not appropriate to move to treatment such as puberty blockers or cross-sex hormones without the involvement of the court, and it would be appropriate to involve the court when there may be any doubt about long-term best interests.

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[2020] WLR(D) 655B

Queen’s Bench Division

Regina (Bell and another) v Tavistock and Portman NHS Foundation Trust (University College London Hospitals NHS Foundation Trust and others intervening) [2020] EWHC 3274 (Admin)B

2020 Oct 7, 8; Dec 1

Dame Victoria Sharp P, Lewis LJ, Lieven J

Children— Medical treatment— Consent— Puberty-blocking drugs prescribed to children experiencing gender dysphoria— Whether lawful— Whether children below age of 18 having capacity to consent to such treatment— Family Law Reform Act 1969 (c 46), s 8

The defendant NHS trust operated a gender identity development service (GIDS) for children who were referred to it experiencing gender dysphoria, a condition where persons experienced distress because of a mismatch between their perceived identity and their sex at birth and had a strong desire to live according to their perceived identity rather than their natal sex. After assessing a young person GIDS might in turn refer such children to one of two other NHS trusts (the first and second interveners) whose clinicians might be prepared to undertake medical interventions, including the administration of gonadotropin-releasing hormone agonists which were hormone or puberty-blocking drugs to suppress the physical developments that would otherwise occur during puberty. Until 2011 such treatment was only available at GIDS for those aged 16 or older but it then started to be prescribed for those aged 12–15 and in mid-puberty. This was first done between 2011 and 2014 under an approved research study known as the Early Intervention Study, as the first of three possible stages of physical intervention. The second was the prescription of cross-sex hormones, which could only be prescribed from around the age of 16, while the third stage was gender reassignment surgery which was only available via adult services to people aged over 18. Puberty-blocking drugs for gender dysphoria had been prescribed to children as young as 10 through the services provided by the defendant. It was the practice of the defendant, through GIDS, to require the informed consent of those children and young persons to whom such drugs were prescribed. The first claimant had been born female and, at about the age of 15, had been prescribed puberty-blocking drugs to halt the process of developing female sexual characteristics. She eventually transitioned to a male, having taken cross-sex hormones to promote male characteristics and then undergone surgery, but later wished to revert to change legal sex back to female. The second claimant was the mother of a 15-year-old girl who was concerned that her daughter might be referred to the GIDS and be prescribed puberty blockers. By a claim for judicial review the claimants challenged the defendant’s practice of prescribing puberty-blocking drugs to children under 18 as being unlawful on the ground, inter alia, that young people below that age lacked competence to give valid informed consent to the treatment, and that cases of children under 18 ought to be referred to the Court of Protection. The results of the Early Intervention Study had not been published by the time the claim was heard.

On the claim—

Held, claim allowed. (1) The question whether a person under the age of 16 was competent to make the relevant decision would depend on the nature of the treatment proposed as well as that person’s individual characteristics. Where the decision was significant and life-changing then there was a greater onus to ensure that the child understood and was able to weigh the information. Efforts ought to be made to allow the child or young person to achieve competency where that was possible and clinicians ought therefore to work with the individual to help them understand the treatment proposed and its potential implications in order to help them achieve competence. It was important not to set the bar too high and thus it was not appropriate to equate the matters that a clinician needed to explain to the matters that a child needed to understand to achieve competence. However, the child or young person needed to be able to demonstrate sufficient understanding of the salient facts and, in deciding what facts were salient and what level of understanding was sufficient, it was necessary to have regard to those matters to which weight objectively ought to be given weight in the future, although the child might be unconcerned about them now. Not every very individual under 16 might be able to achieve competence in relation to the treatment proposed and, where the consequences of the treatment were profound, the benefits unclear and the long-term consequences to a material degree unknown, it might be that competence could not be achieved however much information and supportive discussion was undertaken (paras 126–132) , 139, 145, 151).

(2) In the present case, the starting point for the consideration of competence was that the administration of puberty blockers to people going through puberty was a very unusual treatment in that (i) there was real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or quite what it was seeking to achieve, and it was thus properly described as experimental treatment, (ii) there was a lack of clarity over the purpose of the treatment, and in particular whether it provided a “pause to think” in a “hormone neutral” state or was a treatment to limit the effects of puberty and thus the need for greater surgical and chemical intervention later, and (iii) the consequences of the treatment were highly complex and potentially lifelong and life-changing in the most fundamental way imaginable, going to the heart of an individual’s identity, so that it was quite possibly unique as a medical treatment. While the fact that a treatment was experimental and had, as yet, an unknown impact did not of itself prevent informed consent being given, it went to the critical issue of whether a young person could have sufficient understanding of the risks and benefits to be able lawfully to consent to that treatment. The nature and the purpose of the medical intervention had also to be considered, it being relevant that the condition being treated, gender dysphoria, had no direct physical manifestation whereas the treatment provided for that condition had direct physical consequences, as the medication was intended to and did prevent the physical changes that would otherwise occur within the body, in particular by stopping the biological and physical development that would otherwise take place at that age. The clinical intervention was thus different in kind to other treatments or clinical interventions where medical treatment was used to remedy, or alleviate the symptoms of, a diagnosed physical or mental condition, and the effects of that treatment were direct and usually apparent. The consequences that flowed from taking puberty blockers for gender dysphoria had also to be considered in the context of informed consent and these fell into two interlinking categories, namely, those that were a direct result of taking the puberty blockers themselves, and those that followed on from progression to the second stage of taking cross-sex hormones, with the evidence showing that (i) the vast majority of children who took puberty blockers moved on to take cross-sex hormones, with the first and second stages forming parts of one clinical pathway so that once on that pathway it was extremely rare for a child to get off it, and (ii) the use of puberty blockers was not itself a neutral process by which time stood still for the child, whether physically or psychologically, but instead prevented the child going through puberty in the normal biological process so that the child was not undergoing the physical and consequential psychological changes which would contribute to the understanding of a person’s identity (paras 74, 134–137, 143).

(3) In light of the foregoing, in order to achieve competence the child or young person would have to understand not simply the implications of taking puberty blockers but also those of progressing to cross-sex hormones. The relevant matters therefore that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers were (i) the immediate consequences of the treatment in physical and psychological terms, (ii) the fact that the vast majority of patients taking puberty blockers went on to cross-sex hormones and therefore that they were 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 might well lead to a loss of fertility, (v) the impact of such hormones on sexual function, (vi) the impact that taking that step on that treatment pathway might have on future and lifelong relationships, and (vii) the unknown physical consequences of taking puberty blockers. It would obviously be difficult for a child under 16 to understand and weigh up such information. Although a child might understand the concept of the loss of fertility, for example, that was not the same as understanding how it would affect their adult life, since a child’s attitude to having biological children, and their understanding of what that really meant, was likely to change between childhood and adulthood. Further, the combination of lifelong and life changing treatment being given to children, with very limited knowledge of the degree to which it would or would not benefit them, gave significant grounds for concern. In many cases, however much information the child was given as to long-term consequences, they would not be able to weigh up the implications of the treatment to a sufficient degree. It was thus highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers and it was also doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blocking drugs (paras 132, 138, 139, 143–145, 150, 151).

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112B, HL(E) and In re S (A Child) (Child Parent: Adoption Consent) [2018] 2 WLR 1029B applied.

Montgomery v Lanarkshire Health Board [2015] AC 1430B, SC(Sc) distinguished.

(4) The legal position was different in respect of young persons aged 16 and over in that there was a presumption under section 8 of the Family Law Reform Act 1969 that they had the ability to consent to medical treatment. While that did not mean that a court could not protect the child under its inherent jurisdiction if it considered the treatment not to be in the child’s best interests, so long as the young person had mental capacity and the clinicians considered the treatment to be in the child’s best interests, then absent a possible dispute with the parents the court generally had no role. However, given the long-term consequences of the clinical interventions at issue in the present case, and given that the treatment was as yet innovative and experimental, clinicians might well regard such case as those where the authorisation of the court ought to be sought before starting treatment with puberty-blocking drugs. It would be appropriate for clinicians to involve the court in any case where there might be any doubt as to whether the long-term best interests of a 16 or 17-year-old would be served by the clinical interventions at issue in the present case (paras 146, 147, 149, 152).

In re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64Not on Bailii!, CA applied.

Jeremy Hyam QC and Alasdair Henderson (instructed by Sinclairslaw) for the claimants.

Fenella Morris QC and Nicola Kohn (instructed by DAC Beachcroft) for the defendant.

John McKendrick QC (instructed by Hempsons) for the first and second interveners.

Paul Skinner and Aidan Wills (instructed by Ai Law, Liverpool) for the third intervener, Transgender Trend Ltd.

The interested party did not appear and was not represented.

Catherine May, Solicitor

Referenced Legislation

Family Law Reform Act 1969 (c 46), s 8

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Medical treatment cases🔍

Date: 1/12/20🔍

Court: High Court (Administrative Court)🔍

Judicial history:

Cited by:

Judge(s):

Parties:

  • Quincy Bell🔍
  • Mrs A🔍
  • Tavistock And Portman NHS Foundation Trust🔍
  • NHS England🔍
  • University College London Hospitals NHS Foundation Trust🔍
  • Leeds Teaching Hospitals NHS Trust🔍
  • Transgender Trend Ltd🔍

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Published: 3/12/20 22:16

Cached: 2021-12-09 12:52:07