Bell v Tavistock And Portman NHS Foundation Trust  EWCA Civ 1363
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Court of Appeal
Regina (Bell and another) v Tavistock and Portman NHS Foundation Trust (University College London Hospitals NHS Foundation Trust and others intervening)B
2021 June 23, 24; Sept 17
Lord Burnet of Maldon CJ, Sir Geoffrey Vos MR, King LJ
Children— Medical treatment— Consent— Puberty-blocking drugs prescribed to children experiencing gender dysphoria— Whether lawful— Whether court entitled to grant declaratory relief— Whether children and young persons under 18 competent to consent to such treatment— Family Law Reform Act 1969 (c 46), s 8
The defendant NHS trust operated a gender identity development service providing specialist care to children and young persons up to the age of 18 who experienced gender dysphoria. After assessment the service might refer such persons 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 certain hormone or puberty-blocking drugs to suppress the physical developments which would otherwise occur during puberty. Between 2011 and 2014 such drugs started to be prescribed for those aged 12 to 15 and in mid-puberty under an approved early intervention research study, as the first of three possible stages of physical intervention; the second stage being the prescription of cross-sex hormones from around the age of 16, and the third stage being gender reassignment surgery for those aged over 18. The results of the research study, and the efficacy of such treatment for children and young persons with gender dysphoria, had yet to be published. For the year 2019/2020, 161 persons under the age of 18 were referred by the defendant’s service for puberty blockers, 95 of whom were aged 10 to 16. It was the practice of the defendant, through its service, to require the informed consent of children and young persons recommended for such treatment. 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 undergone surgery, but later wished to revert to being female. The second claimant, the mother of a girl aged 15, was concerned that her daughter might be referred to the defendant’s service 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 persons 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 Divisional Court of the Queen’s Bench Division allowed the claim. Although the court found no illegality in the defendant trust’s policy or practice and that the information it supplied was not inadequate to form the basis of informed consent, it granted a declaration as to the relevant information that a child under 16 would have to understand in order to have the requisite competence to consent to puberty-blocking drugs being administered to him/her.
On appeal by the defendant—
Held, appeal allowed. (1) Although the court had a broad discretion to grant declaratory relief in public law judicial review proceedings enabling it to make an advisory declaration in appropriate cases, the claim was not for such an advisory opinion or declaration from the court. Rather the failed claim was for a declaration that the court was obliged to intervene exercising its best interests jurisdiction before puberty blockers could be prescribed. The declaration made was in terms which not only stated the law but also identified an exhaustive list of factual circumstances which had to be evaluated in seeking consent from a child and specified some matters as conclusive facts. It came close to providing a checklist clinicians were required to adopt for the indefinite future in language which was not capable of clear and uniform interpretation and in respect of which there were evidential conflicts. In effect, the declaration covered areas of disputed fact, expert evidence and medical opinion. The legal issue before the Divisional Court was not a general inquiry into the content of information and understanding needed to secure a child’s informed consent. The policy and practice under consideration required the informed consent of both child and parents before the defendant referred to the other hospital trusts, again before either trust prescribed puberty blockers and once more before prescription of sex-hormones. The court should not have made the declaration (paras 69–84).
Gillick v West Norfolk and Wisbech Area Health AuthorityB, HL(E) and R (Burke) v General Medical Council (Official Solicitor intervening) B, paras 21–22, CA applied.
(2) Although the Divisional Court was understandably concerned for the welfare of children suffering from gender dysphoria who it was common ground were highly distressed and vulnerable, the court was not in a position to generalise about the capability of persons of different ages to understand what was necessary for them to be competent to consent to the administration of puberty blockers. The effect of the guidance was to require applications to the court in circumstances where there was no legal obligation to do so, and it placed patients, parents and clinicians in a very difficult position. Since it was for clinicians rather than the court to decide on competence, it was inappropriate for the court to give the guidance when a court application would be appropriate and to reach general age-related conclusions about the likelihood or probability of different cohorts of children being capable of giving consent. Having concluded that the defendant’s policies and practices were not unlawful and rejected the legal criticism of its materials, the court should have dismissed the claim (paras 85–91, 94).
Per curiam. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. They will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested (paras 92–93).
Fenella Morris QC and Nicola Kohn (instructed by DAC Beachcrift LLP) for the defendant
Jeremy Hyam QC, Alasdair Henderson and Darragh Coffey (instructed by Sinclairslaw) for the claimants.
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 remaining interveners, Brook, Gendered Intelligence, The Endocrine Society, Dr David Bell, The Association of Lawyers for Children, and Liberty, made written submissions.
The interested party, the National Health Service Commissioning Board (NHS England), did not appear and was not represented.
Robert Rajaratnam, Barrister
Family Law Reform Act 1969 (c 46), s 8