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Bell v Tavistock: Informed consent, bodily autonomy and the future of Gillick competence

Date posted: 23 February 2021

Family caseworker Kauser Fadal considers this recent high profile decision of the family court.

 

In Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112, the House of Lords considered the lawfulness of the state policy on giving contraceptive advice to children without parental consent. The House of Lords held by a majority that a doctor could lawfully give contraceptive advice and treatment to a girl aged under 16 if : –

(a) she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment.

 

The decision in Gillick gave rise to the concept of ‘Gillick Competence’ – when a child can in theory give consent to medical treatment. This case, R (on the application of) Quincy Bell and A -v- Tavistock and Portman NHS Trust and others [2020] EWHC 3274 (Admin), considers the use of puberty blocking treatments on children under the age of 16 and whether these children are able to achieve ‘Gillick Competence’ for the purposes of consenting to puberty blocking treatments.

 

The case was brought by Keira Bell who had been administered with puberty blockers at the age of 16 and in adulthood engaged in more invasive gender affirming treatments. It is worth noting that on the fact pattern presented to the High Court, the position of Mrs A was that she was concerned her daughter would seek treatment from the Gender Identity Development Service (‘GIDS’) without parental consent despite this not being possible given that her daughter would not have met the threshold for being referred to GIDS. Similarly, the Policy of GIDS was that treatment should not be provided without parental consent. As such, the eventuality envisioned by Mrs A would not have been possible on the facts of the case.

 

The claimants Keira Bell and Mrs A argued that children and young persons under 18 are not competent to give consent to the administration of puberty blocking drugs and that the information given to those under 18 by the defendant (Tavistock and Portman NHS trust) is misleading and insufficient to ensure such children or young persons are able to give informed consent.

 

Tavistock and Portman argued that the care and treatment provided at GIDS fell within the terms of the Service Specifications laid down by NHS England (NHSE) and within other international frameworks, that the “vast majority” of the children referred for Puberty Blockings treatments are 15 or older and the information given is varied depending on the age and maturity of the child or young person. They further argued that where the assessment is that the individual is not initially Gillick competent, time is taken to see if their understanding develops and competency can be achieved. The information that is given is what is salient for that individual at that age.

 

In considering the case and evidence, the court looked at Gender Dysmorphia, the effects of Puberty Blockers, the relationship between Puberty Blockers and Cross-Sex Hormones (CSH), the ages of children referred to GIDS for treatment; and the submissions of the claimants and defendant including the testimony of young people treated by GIDS whose experiences with the service were positive.

 

The court made a number of assessments in considering when a young person becomes Gillick Competent for the purposes of being administered with puberty blockers and it was decided that to achieve Gillick competence the child or young person would have to understand not simply the implications of taking puberty blockers but those of progressing to Cross-Sex Hormones. It is worth noting that you cannot consent to the use of Cross Sex Hormones before the age of 18 and that the treatment in question was the administering of puberty blockers before the age of 18.

 

In the conclusion to the judgment it was noted that: –

 

‘‘We do not think that the answer to this case is simply to give the child more, and more detailed, information. The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree. There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.’’

 

So why did the court decide as it did? Well the answer lies within the assessment of the processes within the Gender Identity Development Service. It was found that children, some as young as 10, who had been administered with puberty blockers could not have met the test of informed consent determined in the 1986 judgment in the case of Gillick v West Norfolk and Wisbech Area Health Authority. The Court analysed the process in which GIDS would seek to determine that the child was Gillick competent and found that they were not sufficient.

 

One criticism raised in this judgment is quite concerning in the assumption that more people referred to the service somehow means that the service is not operating correctly. Instead of focusing on the waiting list for an initial assessment being almost 22- 26 months and the psychological impact this wait must have on the young people seeking treatment, the court instead considered evidence to suggest that increasing numbers of young people were seeking treatment due to “cultural factors, including material on the internet and social media’’. In reality, an increase in the number of young people seeking gender affirming treatment is indicative of more acceptance and visibility of Trans identifying people across all sectors.

 

It is hard not to sympathise with the position of Keira Bell after all changing your natal sex is undoubtedly one of the most drastic and life altering decisions that a person can make. Whether those prescribed with puberty blockers should be limited to adults over the age of 18 and young people between 16 and 18 is the central issue at the heart of this case. This Judicial Review into the processes and practices of the Gender Identity Development Service at the NHS’s Tavistock and Portman Clinic will have far reaching consequences for all children irrespective of whether they are affected by gender dysmorphia as the judgment impacts upon the ability of all children to consent to medical treatment. As a result of this Judgment, GIDS together with the University College London Hospitals and Leeds Teaching Hospitals teams will undertake a clinical review of all endocrinology patients in 2021 and in the meantime, there will be no new referrals to the service.

 

If you have a family case you need assistance with please contact Mavis on 020 8885 7986 for an appointment.