The UK Court of Appeal has overturned High Court’s ruling that under-16s who have gender dysphoria were incapable of consenting to medical treatment which would pause puberty
Gender dysphoria is a condition where persons experience distress because of a mismatch between their perceived identity and their natal sex. Such persons have a strong desire to live according to their perceived identity rather than their natal sex. The Tavistock and Portman NHS Foundation Trust, which runs England’s only youth gender clinic, make referrals to pediatric endocrinologists at either University College London Hospitals (UCH) or Leeds Teaching Hospital (Leeds) who then can prescribe “puberty blockers” to young persons who have gender dysphoria; these drugs are used to pause puberty by suppressing the release of hormones which act as messengers telling the body to develop, inter alia, breasts, periods, facial hair and a deeper voice. Tavistock say that the purpose of pausing puberty is to allow a young person time to consider their options without the additional distress of unwanted changes in their bodies.
Last year, in December 2020, in what was considered a landmark judgment, the High Court ruled that persons under the age of 16 who were considering gender reassignment were unlikely to be mature enough to give informed consent to be prescribed puberty-blocking drugs. This is not to say that the High Court deemed the policies and practices of either Tavistock or the two hospitals to be unlawful. At the centre of the case is Ms Bell and a mother of a different child who is referred to only as Mrs A. Ms. Bell is a former patient of Tavistock who was treated with puberty blockers at age 16. She progressed to cross-sex hormones and began surgical intervention as an adult to transition from female to male. She terminated her treatment after having changed her mind and has expressed regrets having embarked upon the treatment path. Mrs. A’s child who has gender dysphoria is awaiting an appointment with Tavistock. Both Ms. Bell and Mrs. A argued that persons under the age of 18 were not capable in law of giving valid consent to the relevant treatment and thus, the courts should intervene in that respect to provide authorisation to the doctors to proceed. The High Court agreed.
The High Court gave landmark guidance on the matter:
- it was highly unlikely that under-13s would ever be competent to give consent to treatment with puberty blockers, and
- it was very doubtful if 14 and 15-year olds could understand the long-term risks and consequences so as to have sufficient understanding to give consent. In those circumstances, the Divisional Court said that clinicians “may well consider” that it is not appropriate to move to treatment without the involvement of the court.
- an application to the court in respect of 16 and 17-year olds would be appropriate if there were any doubt about the long-term best interests of the patient.
However, the Court of Appeal recently allowed Tavistock to challenge whether or not the High Court could give such guidance. Answering in the negative, the Court outlined, first of all, that the guidance covered areas of disputed fact, expert evidence and medical opinion, all of which were unsuitable for determination in judicial review proceedings. Secondly, it said that “the court should not be used as a general advice centre” and although it recognises the “difficulties and complexities” of the issue, it is ultimately a matter for the doctors to “exercise their judgment knowing how important it is that consent is properly obtained according to the particular individual circumstances”. Effectively, the Court of Appeal’s ruling has removed the courts from the decision-making process in all but the most difficult cases.
It was reported in the Irish Times that Ms Bell’s lawyer, Paul Conrathe, intends to seek permission to appeal the Court of Appeal’s ruling to the Supreme Court. He stated that: “We are both dismayed and surprised at the Court of Appeal’s decision which appears to us the epitome of the triumph of legal formalism over justice and common sense... at a stroke, the court’s decision removes a sensible, necessary, and proportionate protection for vulnerable young children against the poorly evidenced treatment with lifelong irreversible consequences.”
Click here to read the full judgement.
Click here to read a summary of the case.