(Mar. 19, 2021) On January 18, 2021, the High Court in England granted the Tavistock and Portman NHS Trust permission to appeal a High Court ruling that children under 16 cannot give informed consent to receive puberty-blocking treatments, which effectively stopped both treatment and referrals for children under the age of 16 to the trust’s Gender Identity Development Service (GIDS) without a court order. In response to permission being granted for the appeal, the trust stated “[w]e welcome the court’s decision to allow us to appeal against the ruling. Our priority is to work together with our partners to support our patients and their families while legal proceedings are ongoing.”
The decision under appeal was published on December 1, 2020, in the case of Bell v. Tavistock and Portman NHS Foundation Trust, and the NHS Trust sought permission to appeal the order on December 22, 2020. The court announced at that time that there would be a stay on the implementation of its judgment until the determination of any appeals.
This case involves an application for judicial review into the practice of GIDS, which prescribed puberty-blocking drugs (PBs) to suppress puberty in patients referred to GIDS who were from 10 to 18 years old and experiencing gender dysphoria.
The High Court ruled that patients under the age of 16 were unlikely to be able to understand, retain, and give weight to several criteria required for them to provide informed consent to receive PBs. The result of the ruling means that it will be difficult for patients under 16 to demonstrate they understand the long-term effects of PBs and give their informed consent, and that a court order will be needed for these patients to proceed with this type of treatment.
The court determined that, in order for children to be legally (“Gillick”) competent, they need to understand not just the implications of taking PBs, but also those of taking cross-sex hormones. The court stated that it did not believe 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.
The court held that, in order to give valid consent to medical treatment, the child must not only understand, but be able to retain and weigh the following criteria:
- the immediate consequences of the treatment in physical and psychological terms,
- the fact that the vast majority of patients taking PBs go on to CSH (cross-sex hormones) and therefore that s/he is on a pathway to much greater medical interventions,
- the relationship between taking CSH and subsequent surgery, with the implications of such surgery,
- the fact that CSH may well lead to a loss of fertility,
- the impact of CSH on sexual function,
- the impact that taking this step on this treatment pathway may have on future and life-long relationships,
- the unknown physical consequences of taking PBs, and
- the fact that the evidence base for this treatment is as yet highly uncertain.
The court did not consider that providing information and discussing it was sufficient to achieve Gillick competency. It ruled that it would be difficult for children under the age of 16 to fully understand and balance the information needed to provide informed consent and that “it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [PBs].” The court further ruled that it was doubtful that children aged 14 or 15 could understand and weigh all the criteria to “have sufficient understanding to give consent,” although it noted “the increased maturity of the child means that there is more possibility of achieving competence at the older age.”