A commentary on the recent case of AB and CD and The Tavistock and Portman NHS Foundation Trust and University College London NHS Foundation Trust and XY [2021] EWHC 741 (Fam) concerning treatment of transgender children with puberty blockers
In our recent article on the Bell v Tavistock case, in which the court questioned children and young people’s capacity to consent to puberty-blocking treatment and has resulted in the restriction of services to this vulnerable section of society, we questioned the Portman and Tavistock NHS Trust’s approach to consent, which was stated before the Court to be not to rely on parental consent, thereby turning the focus on the Gillick competence of the children or young persons. We expressed the view that this appeared to depart from practice in other areas of children’s medicine where parental consent is sufficient and there is normally no need to seek input from the courts before providing treatment.
It was clear that Bell was going to cause significant difficulties for those both already on care pathways managed by the Tavistock and those on the waiting list.
In the case of AB and CD and The Tavistock and Portman NHS Foundation Trust and University College London NHS Foundation Trust and XY [2021] EWHC 741 (Fam) heard before Mrs Justice Lieven on 1-3 March 2021 with Judgment handed down on 26 March, consideration of the position of a young person already receiving puberty blockers came to court. That this was taken seriously by all concerned may be judged by the fact that no fewer than 5 QCs and seven junior barristers appeared in the case. Mrs Justice Lieven was one of the judicial panel who decided Bell.
‘XY’ is a 16 year-old trans girl who is on puberty blockers, and has been for some time, since puberty was seen to commence. She is plainly articulate and thoughtful, as are her parents, ‘AB’ and ‘CD’. The evidence showed that they have engaged fully with the uncertainties. ‘XY’ and her parents, and the treating clinicians all believe that it is best for ‘XY’ to continue on puberty blockers.
The case focused on consent and reviewed the relevant UK case law. The Judge also expressed herself to be strongly influenced by the Australian cases, in particular Re Jamie [2013] Fam CAFC 110 and Re Kelvin [2017] CAFC 258.
Mrs Justice Lieven conclusions were that:
Importantly Mrs Justice Lieven stated that:
“In my view, the factors identified in Bell , which I fully agree with, do not justify removing the parental right to consent. The gravity of the decision to consent to PBs is very great, but it is no more enormous than consenting to a child being allowed to die. Equally, the essentially experimental nature of PBs should give any parent pause for thought, but parents can and do routinely consent on their child’s behalf to experimental treatment, sometimes with considerable, including life-changing, potential side-effects. It is apparent from Bell that PBs raise unique ethical issues. However, adopting Lady Black in NHS v Y , I am wary of the Court becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific, basis.”
With regard to the nature of PBs, Mrs Justice Lieven noted that additional safeguards might be introduced into decision making, such as the requirement for an independent second opinion, noting that a second opinion “is likely to be a better safeguard for the very vulnerable children concerned rather than removing the ability in law of the parents giving consent”. Any such requirement was a matter for the Cass review and/or others with regulatory or other oversight.
She did however express concerns that parents might feel especial pressure to consent from a child’s strongly expressed view and suggest that, if the clinicians, or indeed any one of them, is concerned that the parents are being pressured to give consent, then such a cases should be brought to Court. She stated that equally if the clinicians consider the case to be finely balanced, or there is disagreement between the clinicians, then the case should be brought to Court. However, she was clear that she did not consider that these issues justify a general rule that PBs should be placed in a special category by which parents are unable in law to give consent.
What implications does this have?
First, for those already on the treatment pathway managed by the Tavistock, where the wishes on the young person, the parents (fully informed) and clinicians align, court references will not be necessary. Many of those young persons are formally prescribed by their local GP and this should provide comfort for them.
In a small number of cases, perhaps involving differences of opinion between parents, or local authorities exercising parental responsibility, references to court will still be necessary.
Secondly, this provides strong support for those awaiting assessment by the Tavistock, whose appointments were put on hold within hours of the Bell judgment. Calls have been made for the NHS commissioning authority to review their position urgently, and certainly in advance of the Cass Review, expected to report later in the year.
Finally, the Bell appeal, due in April, will need to consider this judgment. If parental consent returns to the centre of the Tavistock’s assessment, then aspects of the Bell case will be relegated to an historical backwater, although its findings about the experimental nature of the treatment and the paucity of evidence will continue to have force until appropriate studies fill that gap.
A certainty is that parents of gender variant children will continue to have difficult choices to make and they and their children will need help and support in making those choices.
Robin Moira White and Nicola Newbegin.
Old Square Chambers
