On September 17, 2021, the Court of Appeal in England overturned a controversial decision from the High Court in the case of Bell v. Tavistock and Portman NHS Foundation Trust et al. In the case that was the subject of the appeal, the High Court originally ruled that patients under the age of 16 years old seeking treatment for gender dysphoria were unlikely to be able to understand, retain, and give weight to several criteria required for them to be competent to provide informed consent to receive a referral to endocrinologists. These endocrinologists, located at two National Health Service (NHS) trusts (Tavistock and Portman) that provide specialized care, are responsible for considering whether the patient should be provided with puberty-blocking drugs. As a result of the High Court’s ruling, which was stayed pending the appeal, it was difficult for patients under the age of 16 to demonstrate they understood the long-term effects of puberty blockers and give their informed consent. Consequently, a court order was needed for these patients to proceed with this type of treatment.
The single question before the Court of Appeal was whether the lower court was correct to make the declaration and provide the guidance it gave.
The Court of Appeal stated in its decision that it had
not been required to determine whether treatment for gender dysphoria is wise or unwise. Such policy decisions are for the National Health Service, the medical profession and its regulators and Government and Parliament. It was not suggested in these proceedings that the use of puberty blockers to treat gender dysphoria was unlawful. It was, however suggested by the claimants that the court’s consent should always be obtained before they were prescribed.
The Court of Appeal determined that the High Court’s declaration covered areas of fact, expert evidence, and medical opinion, which should not have been determined during judicial review proceedings. The Court of Appeal noted that a declaration in judicial review proceedings had never been granted by any court where the legal challenge had failed. The Court of Appeal found that the High Court had not held that the law required a court order before the prescribing of puberty blockers, nor had it held that guidance from the trust was unlawful for not requiring a court application. Instead, the High Court had declared 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 puberty-blocking drugs.
The Court of Appeal did reference a Care Quality Commission report that criticized the NHS’s Gender Identity Development Service policy of obtaining consent, but noted that “the fact that the report concluded that Tavistock had, in certain respects, fallen short of the standard expected in its application of the service specification does not affect the lawfulness of that specification; and it would not entitle a court to take on the task of the clinician.”
The lord chief justice ruled that it was inappropriate for the High Court to make the declaration and issue the guidance that it did because the effect was to “require applications to the court in circumstances where the [High Court] itself had recognised that there was no legal obligation to do so.” By doing this, it placed patients, parents, and clinicians in a difficult position, as the Court of Appeal found that “[i]n practice the guidance would have the effect of denying treatment in many circumstances for want of resources to make such an application coupled with inevitable delay through court involvement.” The Court of Appeal noted that the law, as established in Gillick v. West Norfolk and Wisbech Health Authority, provides that it should be clinicians who make the decision as to whether the patient is competent to provide consent rather than the courts, and ruled that once the High Court did not find any illegality in the actions of the trusts, the declaration and guidance from the High Court “placed an improper restriction on the Gillick test of competence.”
After the decision was published, the Tavistock Trust stated:
The judgment upholds established legal principles which respect the ability of our clinicians to engage actively and thoughtfully with our patients in decisions about their care and futures. It affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment.
The individual who filed the initial judicial review case stated that they planned to seek leave to appeal the Court of Appeal’s decision to the Supreme Court.