Last week, Mrs Justice Lieven delivered a judgment in a case concerning puberty blockers. This post explains a little about what that judgment says, and what it may mean for teenagers undergoing this treatment or who want to start / resume their treatment. It follows on from the case of Bell v Tavistock (R (Quincy Bell) and A  v Tavistock and Portman NHS Trust, and others [2020] EWHC 3274) in December last year, which we wrote about here. Mrs Justice Lieven was one of the three judges involved in the Bell decision. Here, she said explicitly that nothing in this judgment changes or undermines anything that the court said in Bell but, as you will see below, not everybody thinks that is correct.

The background

This case is called AB & CD, and the full decision can be read here AB v CD & Ors [2021] EWHC 741 (Fam). Although they don’t appear in the title of the case, the Tavistock & Portman NHS trusts were again involved, but in this case there was a greater degree of consensus between the various parties about the particular issue the case was deciding, meaning that the case was possibly not fully argued from all angles (although Cafcass did instruct counsel to act as ‘advocate to the court’). The application was brought by the parents (AB & CD) and the issue was whether they could consent to the treatment of their teenage child (XY, aged 15 and born a boy) with puberty blockers or whether the decision should come before the court, either as a matter of legal requirement or as a matter of good practice. Teenagers like XY who had been receiving treatment prior to Bell via the Tavistock are currently having to go through a process of clinical review as a result of Bell and there was some uncertainty about whether GPs will continue to be happy prescribing in the meantime. The Bell appeal might change things but isn’t being heard until June. This application was brought therefore to ensure that XY didn’t have to go through an unplanned break in her treatment, which (it was said) would have been distressing and might have potentially irreversible consequences in terms of a resumed development of male characteristics.

In Bell the focus was on the validity of consent of a ‘Gillick competent’ child (we explain Gillick competence in our earlier post here). This court noted that the question of whether parents could consent to the treatment had not been considered in Bell, because on the evidence presented in that case it appeared that the administration of puberty blockers by the Tavistock would not continue on the basis of parental consent alone in any event. In Bell the treatment was offered on the basis of the child’s consent and the issues were whether or not that was sufficient consent, or whether proper steps had been taken to ensure the consent was valid. Here though, there was a concern that a teenager who was already in receipt of puberty blockers might find themselves unable to continue their treatment because medical practitioners were unsure if they could legally continue to prescribe, without a court order The child wished to continue the treatment and the parents were willing to give consent, but – given that Bell meant the doctors couldn’t rely upon the child’s consent – could the doctors safely rely upon the consent of the parents instead?

The decision

The judgment is long and detailed, but the upshot is that parents can indeed offer their consent for this sort of treatment even in circumstances where the child is Gillick competent as long as the child is not objecting, and as long as there is no coercion of the parents i.e. the parents are not themselves being coerced into giving consent against their better judgment. Parental consent can’t be used to authorise treatment that a competent child is refusing or objecting to (it’s not a ‘trump card’), but it can be used to authorise treatment the child is not objecting to, therefore obviating the need to worry about Gillick competence or coming to court. It can also be used to authorise treatment where the child can’t or won’t give a view (e.g. if they are unconscious or just want someone else to decide). It was suggested XY was Gillick competent but the court steered clear of affirming that assertion. And, because the judge had decided the parents were able to consent without the approval of the court, it was also not necessary for her to decide whether the treatment was in the best interests of XY – i.e. the court didn’t make it’s own welfare decision.

On the question of whether or not certain types of treatment decisions fall into a category that ought to be put before the court for a decision, the judge drew a distinction between treatment in the context of a terminal condition and puberty blockers:

If the child, or incapacitated adult, has a condition for which there is only one possible treatment, particularly if the condition is fatal, then it is easy to see that experimental treatment would generally not require Court approval. The factual, clinical and ethical issues surrounding PBs are different, as is explained at length in Bell. In particular, the child is not facing a terminal illness, and the treatment has life-changing and life-long consequences, the implications of which are not fully understood.

[pa 97]

She went on to say that :

There are particular issues in relation to PBs and there may well be justification for clinicians taking a very cautious approach in individual cases and erring on the side of having Court consideration and authorisation. However, the need for caution in imposing blanket rules, even for the most difficult categories of case, is important to have closely in mind.

[pa 99]

The judge said she placed some weight on a series of Australian cases where :

The court concluded that here was no reason to place PBs in a special category where the Court’s approval was required. However, for Stage 2 treatment, i.e. cross-sex hormones, Court approval was required because of the irreversibility of that treatment.

[pa 100]

This is interesting, because in Bell the court treated PBs, cross-sex hormones and surgical steps as part of a continuum in the sense that there was an almost inevitable progression, whereas here the thrust is to separate them. We think that this ‘inevitability point’ may be one of the areas of challenge in the forthcoming appeal.

The judgment surveys the existing regulatory framework within the NHS, and also touches briefly on an interesting discrimination point – without ultimately dealing with it. We are told that it was argued that :

any requirement (or presumably practice) of needing Court authorisation for PBs would not be “in accordance with law” for the purposes of article 14 and thus would be discrimination under the Human Rights Act 1998 […and] that it would amount to discrimination contrary to article 8 and 14 and thus the Human Rights Act.

[pa 111]

The judge had asked the advocates to the court, led by Victoria Butler-Cole QC to assist her, and records her gratitude for ‘the two detailed notes that she (together with Mr Ruck Keene and Ms Apps) produced and have filed with the Court’. She says only that :

It is apparent from the written submissions that I have received that this argument raises complex issues of discrimination law both under the Equality Act 2010 and the Human Rights Act 1998. It also appears to me that a very similar argument might be raised in the Bell appeal.

[pa 113]

Ultimately, the judge concludes that PB treatment of children does not represent a ‘special category’ of cases in which court approval is automatically required – although that is not to say that court approval will never be required (see below on the question of coercion or disagreement). Lieven J notes that:

the only case where the Court has found a legal requirement to come to Court in respect of treatment of a child, where both parents consent, is Heilbron J in Re D, the case of a “non-therapeutic” sterilisation of an 11 year old. In all other contexts, including where the parental decision will lead to the child’s life ending, the Court has imposed no such requirement. There are a range of cases where there does have to be Court approval, but this is where there is a clinical disagreement; possible alternative treatment of the medical condition in issue; or the decision is, in the opinion of clinicians, finely balanced. These are fact specific instances rather than examples of any special category of treatment where the Court’s role is required simply because of the nature of the treatment.

[pa 116]

The judgment explains the distinction between the position for children from that of incapacitated adults : they have no person who is automatically able to offer consent on their behalf, as a parent may for a child, and ‘therefore the State has a protective function and the Court has a different legal role. The Court is not displacing some other person, namely the parents, with statutory and moral rights and duties’.

The judgment places some considerable weight on ‘the central role that parents must and should play in their children’s lives and the fact that parents will, in the vast majority of cases, be the people who know their children best and who are best placed to make decisions about them’, and also acknowledges the particular characteristics of this type of treatment that have given rise to controversy :

It might be argued that in the light of the Divisional Court’s analysis in Bell, PBs are sufficiently different from other forms of treatment to be treated differently. I accept that I am somewhat hampered by the fact that no party was putting this argument. The factors from Bell which would be relied upon in this regard would, I assume, be the poor evidence base for PBs; the lack of full and long term testing; the fact their use is highly controversial, including within the medical community; and the lifelong and life-changing consequences of the treatment, which in some ways are irreversible. The ratio of Bell is that a child is very unlikely to be in a position to understand and weigh up these factors.

[pa 119]

The ultimate conclusion is that even if a teenager is unable to make an informed decision and give valid approval of treatment, parents are generally in a position to understand and weigh up the issues and consider what is in the long and short term best interests of their child.

In my view, the factors identified in Bell, which I fully agree with, do not justify removing the parental right to consent. The gravity of the decision to consent to PBs is very great, but it is no more enormous than consenting to a child being allowed to die. Equally, the essentially experimental nature of PBs should give any parent pause for thought, but parents can and do routinely consent on their child’s behalf to experimental treatment, sometimes with considerable, including life-changing, potential side-effects. […] PBs raise unique ethical issues. However […] I am wary of the Court becoming too involved in highly complex moral and ethical issues on a generalised, rather than case specific, basis.

[pa 121]

Moving from the general to the particular, the evidence also strongly suggested that XY’s parents had fully considered these matters and come to a careful and informed decision and there was no suggestion that they had been placed under undue pressure to consent.

The potential coercion point was neatly summarised in this way :

…the pressure that may be placed by the children in issue upon their parents. Where a child has Gender Dysphoria and is convinced that s/he should be prescribed PBs, it is likely to be very hard for parents to refuse to consent. One does not have to be a child psychologist to appreciate the tensions that may arise within a family in this situation. I would describe this as “reverse pressure” and, although I have no evidence about it, it seems obvious that the problem could arise and the [NHS Trusts] are plainly alive to the issue.

[pa 125]

So, although there is no general requirement for cases like XY’s to be brought to court for approval, this would be different if there was a suspicion of parental coercion:

If the clinicians, or indeed any one of them, is concerned that the parents are being pressured to give consent, then I have no doubt such a case should be brought to Court.

[pa 127]

The judge raised another concern at the end of her judgment too, which was that within the structure of the NHS trusts ‘it may be that clinical difference and disagreement will not necessarily be fully exposed. The taking of strong, and perhaps fixed, positions as to the appropriateness of the use of PBs may make it difficult for a parent to be given a truly independent second opinion. However, in my view this is a matter for the various regulatory bodies […] to address when imposing standards and good practice on the [NHS Trusts]‘.

The judge went on to suggest that perhaps,

given the particular issues involved, additional safeguards should be built into the clinical decision making, for example by a requirement for an independent second opinion. […] The clinical expert who gave the second opinion could then have a role in advising whether or not the particular case should be brought to Court.

[pa 124]

Lieven notes that against a backdrop where ‘the division of clinical and ethical views has become highly polarised […] These are precisely the type of matters which are best assessed in a regulatory and academic setting and not through litigation.’ [pa 122]

Conclusion

Like Bell, this case is already drawing quite polarised responses. Some consider it a judgment which has undone some of the harm they perceive the Bell judgment caused :

whilst others view it as a concerning development which places vulnerable children at risk, and have called for it to be stayed pending the Bell appeal (apparently because it has partly undone what they saw as the positive impact of Bell, despite the judge saying it doesn’t) :

That seems unlikely to happen given everyone in the case was pretty much agreed on the outcome (so nobody involved will have an interest in it being stayed), as Victoria Butler-Cole explains here :

But as Butler-Cole also points out, no doubt these issues will arise in the Bell appeal, and so there may yet be another change in our understanding of the law. Butler-Cole also highlights that, insofar as this articulates the limits of parental consent for under 16s, the judgment really simply restates established law rather than saying anything particularly new.

Whoever is right and whatever happens, we will do our best to summarise any future decision for you.

Feature pic : by Sasha Freemind on Unsplash – thanks!

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