By Rithiga Rahulotchanan
In a judgment delivered by the High Court earlier in early December, it was ruled that children under the age of sixteen with gender dysphoria are unlikely to be able to give informed consent to be prescribed puberty-blocking drugs.
Puberty blockers are the first of three possible stages of treatment for children with gender dysphoria. After receiving puberty blockers, a significant majority go on to receive cross-sex hormones. In the UK, the treatment is administered by two NHS trusts following referrals from the Tavistock Centre, which runs the UK's only gender-identity development service. Until 2011, puberty blockers were only available at GIDS for those aged sixteen or older. In the year 2019-20, of 161 children referred to GIDS, 3 were aged ten or eleven, and 95 were under the age of sixteen.
R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020]
The case at hand reviewed the Tavistock and Portman NHS Foundation Trust’s Gender Identity Development Service’s (GIDS) practice of obtaining consent for administering puberty blockers to children with gender dysphoria. The claim was brought before the Court by Quincy Bell, a woman who began taking puberty blockers at the age of sixteen before later de-transitioning, and the mother of a fifteen-year-old girl currently on the waiting list for treatment. The claimants contended that the practice of prescribing puberty-blocking drugs to children under eighteen was unlawful as they lacked competence to give valid consent to the treatment.
The court was concerned with the legal requirements for obtaining consent for the administration of medical treatment. The legal issue involved identifying the circumstances in which a child was competent as a matter of law to give valid consent to treatment. The court was not concerned with deciding whether there were pros or cons in treating children with gender dysphoria with puberty blocking drugs.
When the case was initially heard in October, the claimants made the argument that children who had not yet gone through puberty were not able to properly understand the “lifelong medical, psychological and emotional implications” of taking puberty blockers and cross-sex hormones. The argument was also made by the claimants that in 97% of cases, the use of puberty blockers in children led to further treatment, and argued that the use of hormone blockers to address gender dysphoria did “not have any adequate base to support it”. Jeremy Hyam QC, the claimants’ barrister, stated that “nobody could sensibly think that a child of thirteen or under who cannot in law give valid consent to sexual acts could possibly give informed consent to treatment of dubious benefits … and lifelong consequences.” The claimants wanted puberty blockers to be prescribed only after a court order had been issued.
Fenella Morris QC, representing the trust, described the argument that children could not give informed consent to being prescribed hormone blockers as “a radical proposition”; the claimants sought to “impose a blanket exclusion” on children under the age of eighteen to being able to consent to medical treatment. She argued that the use of puberty blockers is rarely used in children under the age of thirteen and is a “safe and reversible treatment with a well-established history”. The trust, as well as University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospital NHS Trust, also argued that taking puberty blockers and later cross-sex hormones were entirely separate stages of treatment.
Judgment in Bell v Tavistock
The court held that in order for a child to be competent to give valid consent the child would have to understand, retain and weigh the following information:
(i) the immediate consequences of the treatment in physical and psychological terms;
(ii) the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, 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 puberty blocking drugs; and
(viii) the fact that the evidence base for this treatment is as yet highly uncertain.
The court considered that it was highly unlikely that a child below the age of thirteen would be competent to give consent to the administration of puberty blockers. It was also doubtful that a child aged fourteen or fifteen could understand and weigh the long-term risks and consequences of the administration of puberty blocking drugs.
Regarding young persons aged sixteen and over, the legal position is that there is a statutory presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, the court recognised that clinicians may well regard these as cases where the authorisation of the court should be sought before starting treatment with puberty blocking drugs.
Wider Effects of the Judgment
The consequence of this, the Court held, is that an application to the court should be made to determine whether administering puberty blockers would be in a child’s best interests. The judges suggested that this approach may also be appropriate for young people aged sixteen and seventeen.
In the seemingly never-ending debate regarding the ability of children to provide informed consent for medical treatment, this judgment certainly throws a spanner in the works. During the case, the lawyer for the defendant noted that the claimants wished to overhaul the ‘Gillick competence’ test, which states that parents’ right to decide on medical treatment ends “when the child achieves sufficient understanding and intelligence to fully understand what is proposed”. Therefore, the ruling of the court in this case throws into question the boundaries of the Gillick test, creating uncertainty regarding current case law.
After the ruling, Bell said she was “delighted” with the ruling: “This judgment is not political, it’s about protecting vulnerable children … I’m delighted to see that common sense has prevailed.” The solicitor who represented both claimants, said the ruling was “an historic judgment that protects children who suffer from gender dysphoria … This may have led to hundreds of children receiving this experimental treatment without their properly informed consent.”
However, the immediate effects of this ruling on the community of transgender children in the UK, as well as the ripple-like effects on the entire transgender community cannot be neglected. The trust said that it was "disappointed by today's judgment and we understand that the outcome is likely to cause anxiety for patients and their families". Furthermore, Lui Asquith, from the trans children’s charity, Mermaids, said: “It’s frankly a potential catastrophe for trans young people across the country and it cannot be exaggerated the impact that this might have, not only on the population of trans young people that require hormone blockers, but it may potentially open the floodgates towards other questions around bodily autonomy and who has the right to govern their own body.”
The question of the ability of children to provide informed consent remains somewhat unanswered. Whilst this judgment limits the ability of children considering gender reassignment to provide consent, it does not provide much clarification regarding the wider question of the general ability of children to provide informed consent in the medical setting.