Robin Moira White and Nicola Newbegin review the Court of Appeal’s judgment in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 handed down on Friday 17th September and examine its effect on transgender young people, the medical profession and applications for judicial review.
Summary
The Court of Appeal has overruled the controversial decision of the Divisional Court which gave guidance to the effect that it was ‘high unlikely’ that a child aged 13 or under, and ‘doubtful’ that a child aged 14 or 15 years old, would be competent to give consent to the administration of puberty blockers. Even in the case of 16- and 17-year-olds, who are presumed to have capacity by virtue of s 8 Family Law Reform Act 1969, the Divisional Court had stated that it would be ‘appropriate’ for clinicians to ‘involve’ the court where there might be ‘doubt’ about whether the best interests of a 16- or 17-year-old would be served by being prescribed puberty blockers. The Court of Appeal has held that it was wrong of the Divisional Court to provide that guidance. Instead, it held that treatment with puberty blockers fell within the usual Gillick competence rules and it was for clinicians to decide on a case-by-case basis whether a child under 16 was capable of giving consent. Importantly the Court of Appeal also endorsed the decision in AB v CD that parents could, as with most other medical treatment, consent on behalf of a child to treatment with puberty blockers.
Background
The Tavistock and Portman is the only NHS Trust in England running a referral service for gender dysphoric children. This service is known as GIDS. The very existence of that service is a matter of controversy for those who would seek to row back on trans rights in the UK. It is seen as a lifeline by many trans children and their families. The judicial review was brought primarily by Ms Bell, who had was treated with puberty blockers as a 16-year-old, progressed to sex hormones and began surgical intervention as an adult to transition from female to male. She terminated her treatment having changed her mind and regretted having embarked upon the treatment pathway. She sought to challenge the legitimacy of GIDS prescribing puberty blockers to children under the age of 18. Puberty blockers are used to delay puberty. Their use is supported by most practitioners in the field and by the World Professional Association for Transgender Health (‘WPATH’).
Judgment of the Divisional Court handed down on 1 December 2020
The Divisional Court did not declare the prescribing practice unlawful but instead considered the issue of patient consent. It examined the concept of Gillick competence and went on to issue guidance to the effect that it was ‘high unlikely’ that a child aged 13 or under, and ‘doubtful’ that a child aged 14 or 15 years old, would be competent to give consent to the administration of puberty blockers and that, even in the case of 16- and 17-year-olds, the court should be involved where there might be ’doubt‘ as to the child’s best interests.
The Court of Appeal did not consider the question of whether reliance could instead be placed upon parental consent, despite this being the norm in all other areas of medical treatment where a child is not considered to be Gillick competent. The stated reason for effectively ignoring parental consent was that the Tavistock’s protocol relied upon the consent of the child and not of the parents.
Within hours of the Divisional Court’s judgment, NHS England issued an amended service specification in respect of GIDS, effective from that day, the key provisions of which were that: under 16s could not be referred by GIDS for treatment with puberty blockers unless a ’best interests‘ order had been made by the Court and that GIDS must carry out a full clinical review of each patient aged below 16 who had been prescribed puberty blockers and, if it was decided that puberty blockers were in the patient’s best interests, then a best interest application would need to be made to the Court for a final determination in respect of the child’s needs.
The result was that Tavistock immediately suspended all new appointments for transgender young people, in some cases on only a few hours’ notice. Many of these young people had been waiting for months or even years for an appointment. This caused great anguish and distress.
Criticism by the Court of Appeal of the Divisional Court
The case was heard by Lord Burkett the Lord Chief Justice, Sir Geoffrey Vos Master of the Rolls and Lady Justice King. It would be hard to imagine a more senior court. They quashed the earlier judgment and ruled that the ‘guidance’ given by the Divisional Court should not have been given.
The Court of Appeal were scathing about the previous proceedings and judgment, identifying a number of failures of practice and logic.
First, the claim for relief referred to the Tavistock’s prescribing practice, whereas all the Tavistock ever did was to refer young persons on to specialist endocrinologists who took any decisions about prescriptions.
Secondly, since no illegality was found with anything the Tavistock did, the case should have ended there.
Thirdly, the Divisional Court departed from established judicial review practice in failing to confine itself to examining the decision-making process, rather than the disputed evidence base.
Fourthly, it allowed the calling of controversial ‘expert’ evidence by the claimants despite that ‘evidence’ not complying with the rules regarding expert evidence and instead being in large part argumentative and adversarial.
Fifthly, despite repeatedly saying it would not do so, it drew conclusions from that controversial ‘expert’ evidence, and in particular statistical aspects of the evidence that were non-sequiturs. In doing so it ‘implied factual findings’ that it was ‘not equipped to make’.
The correct position as held by the Court of Appeal
First, in holding that the Divisional Court should not have given the guidance it did, the Court of Appeal provided a resounding re-affirmation of the decision of the House of Lords in Gillick v West Norfolk and Wisbeck AHA [1985] 3 WLR 830, namely that a child under 16 has legal capacity to consent to medical examination and treatment if the particular child has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment. The test is child and treatment specific. The Court of Appeal confirmed that the ratio of Gillick is that it is “for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment”. The Court of Appeal held that there was nothing about the nature or implications of treatment with puberty blockers that took it outside of the ratio in Gillick.
Secondly the Court of Appeal endorsed the Tavistock’s own Standard Operating Procedures in the steps they take to ensure that informed consent to treatment is given. This should allow the Tavistock to rapidly return to providing its unique (and uniquely valuable) service.
Thirdly, the Court of Appeal at paragraphs 47-51 expressly endorsed the recent judgment of Lieven J (who had also been one of the Divisional Court judges in Bell) in AB v CD [2021] EWHC 741 (Fam). In AB v CD it was held that treatment with puberty blockers is not in any special category of treatment meaning that parental consent is vitiated and that, as such, parents / those with parental responsibility retained the right to consent to a child being treated with puberty blockers. (The result in AB v CD led to a public statement by NHS England that parental consent could be relied upon in limited circumstances by existing patients who had already been prescribed puberty blockers, it still did not enable GIDs to start referring new patients again for treatment with puberty blockers based on parental consent, despite the decision in AB v CD.)
What does this mean in practice for trans young children in future?
As far as the authors are aware, following the revised NHS England’s service specification, issued after the Divisional Court ruling in December 2020, no new referrals for treatment with puberty blockers have been made by GIDs. This has left children needing the services of GIDs in limbo which does not sit comfortably with the NHS Constitution’s commitment to the provision of comprehensive healthcare.
Given the unequivocal judgment of the Court of Appeal, it is to be hoped that NHS England will act quickly as it did after the Divisional Court’s judgment and amend its service specification to return to its pre-Divisional Court position.
