Children under 16 with gender dysphoria are unlikely to be able to give informed consent to undergo treatment with puberty-blocking drugs, three UK High Court judges have ruled, reports the BBC.
The case was brought against Tavistock and Portman NHS Trust, which said it was "disappointed" but immediately suspended such referrals for under-16s. The NHS said it "welcomed the clarity" the ruling would bring.
One of the claimants, Keira Bell, said she was "delighted" by the judgment. Ms Bell, 23, from Cambridge, had been referred to the Tavistock Centre, which runs the UK's only gender-identity development service (GIDS), as a teenager and was prescribed puberty blockers aged 16. She argued the clinic should have challenged her more over her decision to transition to a male as a teenager.
In a ruling, Dame Victoria Sharp, sitting with Lord Justice Lewis and Mrs Justice Lieven, said: "It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers."
"In respect of young persons aged 16 and over, the legal position is that there is a 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, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment."
"The court is not deciding on the benefits or disbenefits of treating children with GD (gender dysphoria) with PBs, whether in the long or short term.
The second claimant, known only as Mrs A, is the mother of a 15-year-old girl with autism, who is awaiting treatment at the clinic. Speaking to the BBC prior to Tuesday's ruling, she said: "My fear is – it's not that she transitions – it's that she gets it wrong."
She said it was "frightening" there was so little exploration of why a child might be feeling they were the wrong sex before puberty blockers were given. "It is distressing to have to wait and to try and convince someone that your identity warrants medical intervention. However, I think the downside of getting it wrong, the outcomes of getting it wrong, are also catastrophic."
At a High Court hearing in October, lawyers representing the claimants said there was "a very high likelihood" children who start taking hormone blockers will later begin taking cross-sex hormones, which they say cause "irreversible changes".
The trust – as well as University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospital NHS Trust, to which Tavistock refers children and young people experiencing gender dysphoria – argued taking puberty blockers and later cross-sex hormones were entirely separate stages of treatment.
For the first time the ruling places a strong legal framework around the prescribing of puberty blockers, writes the BBC. The judges have effectively split the issue into stages. They concluded a child under 13 is "highly unlikely" to be able to give informed consent and at 14 and 15 it is still "doubtful" they can fully understand the implications of the medication.
Even for 16 and 17-year olds the ruling says it may be appropriate to involve the courts in the decision.
The judges point to the lack of evidence about the long-term effects of puberty blockers as adding to the difficulty of consent, but in effect, the courts will now play a much greater role in decisions, which are already highly emotionally charged.
Paul Conrathe, the solicitor for both claimants, said the ruling was "an historic judgment that protects children who suffer from gender dysphoria". He said the judgment showed "that a culture of unreality has become embedded in the Tavistock".
"This may have led to hundreds of children receiving this experimental treatment without their properly informed consent," he said.
Lui Asquith, from trans children's charity Mermaids, said the ruling was a "devastating blow" and "a potential catastrophe for trans young people across the country". The charity said: "We believe very strongly that every young person has the right to make their own decisions about their body and that should not differ because somebody is trans."
An NHS spokesperson said: "We welcome the clarity which the court's decision brings. The Tavistock have immediately suspended new referrals for puberty blockers and cross-sex hormones for the under-16s, which in future will only be permitted where a court specifically authorises it."
In September, the NHS announced an independent review into gender identity services for children and young people.
The Tavistock and Portman NHS Trust said it was "disappointed by today's judgment and we understand that the outcome is likely to cause anxiety for patients and their families". The trust would seek permission to appeal against the judgment.
In a separate case, a 14-year-old transgender boy has begun legal action against NHS England over delays to gender reassignment treatment.
SUMMARY JUDGMENT
R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274(Admin)
1 December 2020
Judges: Dame Victoria Sharp P., Lord Justice Lewis, Mrs Justice Lieven
1. This claim for judicial review concerned the lawfulness of the practice of the Tavistock and Portman NHS Trust, through its Gender Identity Development Service (GIDS) of prescribing puberty- suppressing drugs to children who experience gender dysphoria. Gender dysphoria is a condition where persons experience distress because of a mismatch between their perceived identity and their natal sex, that is, their sex at birth. Such persons have a strong desire to live according to their perceived identity rather than their natal sex. The puberty blocking drugs were prescribed to children as young as 10 to halt the process of puberty, that is the biological processes that would otherwise occur and would lead to the development of the primary and secondary sexual characteristics.
2. There were two claimants. Quincy Bell was born a female and, at about the age of 15, was 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 undergoing surgery. A is the mother of a 15 year old girl. A is concerned that her daughter may be referred to the Gender Identity Development Service and may be prescribed puberty blockers. The claimants contended that the practice of prescribing puberty-blocking drugs to children under 18 was unlawful as they lacked competence to give valid consent to the treatment.
3. The court in this case was concerned with the legal requirements for obtaining consent for the carrying out of medical treatment. The court was not concerned with deciding whether there were benefits or disbenefits in treating children with gender dysphoria with puberty blocking drugs. The legal issue in the case concerned identifying the circumstances in which a child was competent as a matter of law to give valid consent to treatment.
4. 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.
5. The court considered that it was highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. 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.
6. In respect of young persons aged 16 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.
7. The court has granted a declaration to reflect the points on which the application succeeded.
NOTE: This summary is provided to assist in understanding the Divisional Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Divisional Court is the only authoritative document.
[link url="https://www.bbc.com/news/uk-england-cambridgeshire-55144148"]Full BBC report[/link]
[link url="https://www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf
"]Full UK Divisional Court judgment[/link]