On 23 and 24 June 2021, the Court of Appeal heard the appeal of Bell v Tavistock. The hearing was live streamed on YouTube. At the time of writing, the videos are still available online and can be found here. We reported on the judgment of the lower court at the end of last year. Our blog post can be read here.
A quick refresher of the case facts and High Court judgment
The case concerned a judicial review of the practice of prescribing puberty blocking treatment to children at the GIDS centre, part of the Tavistock and Portman NHS Trust, including whether the information provided to children was enough to enable them to provide valid consent to treatment.
The High Court held that in order for a child to be competent to give informed consent to puberty blockers, the child would have to understand, retain and weigh the following information:
- the immediate consequences of the treatment in physical and psychological terms;
- the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, on a pathway to much greater medical interventions;
- the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery;
- the fact that cross-sex hormones may well lead to a loss of fertility;
- the impact of cross-sex hormones 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 puberty blocking drugs; and
- the fact that the evidence base for this treatment is as yet highly uncertain.
The Court had suggested that it is ‘highly unlikely’ that a 13 year old could give informed consent and that it was ‘doubtful’ whether a child aged 14 or 15 could weigh up the long-term implications. It was also suggested that a clinician seek court authorisation before treating any child under 18, although the legal position was updated in the recent case of AB v CD & Ors [2021] EWHC 741 (Fam) such that court authorisation was not necessary if the child, their parents and the clinician all agreed that treatment was the best course of action. (See also here).
The appeal hearing – What was it about?
The appeal was brought by the Tavistock. It is important to emphasise that the original application was for judicial review. This was something the appeal court judges emphasised throughout the hearing, interjecting during submissions of Counsel for the appellant to remind the court that a judicial review cannot be about whether puberty blocking treatment is a good idea or not. The judicial review was of the lawfulness of the NHS service specifications followed by the Tavistock, and the appeal was considering that decision only.
Some of the points discussed by Counsel at the hearing are outlined below.
Counsel for the appellant
The crux of the argument on behalf of the Tavistock was to reinstate the legal position prior to the High Court judgment and quash the declaration that Keira Bell had secured. This would have the effect of confirming Gillick as the correct legal approach, without any additional criteria or the need for court authorisation.
Counsel began by setting out their 8 grounds of appeal:
- Ground 1: Error of law: improper restriction imposed, despite binding authority of Gillick
- Ground 2: Error of law: wrongful application of the law on mental capacity as it applies to Gillick
- Ground 3: Error of law: conclusion on 16-18 year olds incompatible with statute – Family Law Reform Act 1969 and Mental Capacity Act 2005
- Ground 4: Error of fact: the use of puberty blockers (PBs) for gender dysphoria (GD) is not ‘experimental’
- Grounds 5 & 6: Error of fact: correlation between the use of PBs and progression to use of cross sex hormones (CSH) does not indicate causation – the effects of PBs are not “lifelong” and “lifechanging”; serious procedural irregularity: reliance upon impermissible expert evidence
- Ground 7: Serious procedural irregularity: impermissible resolution of issues of clinical opinion
- Ground 8: Error of law: breach of the Human Rights Act 1998
Counsel for the appellant explained that national and international guidelines recommend the use of puberty blockers. This included guidelines produced by WPATH (World Professional Association for Transgender Health), NICE (National Institute for Health and Care Excellence) and specialist and wider guidelines across the NHS. It was argued that the NHS service specification is in line with the recommended best practice of national and international guidelines, including WPATH, which itself emphasises that decisions for treatment referral are not based on the child’s age but rather their developmental stage. The guidelines highlight that there is improved psycho-social functioning for the child following a staged programme of treatment and an increased ability for children with gender dysphoria to function in their daily life in relation to their gender as well as improved experiences of social inclusion. Puberty blockers give a child more time to explore their options and allow for more meaningful conversations about issues such as fertility. If they are not treated, it is said (in the guidelines by WPATH) that the psycho-social effects can be worsened.
Counsel for the appellant emphasised the distinction between the different stages of treatment. It was argued that the taking of puberty blockers is not causative of further treatment. There are a multitude of clinical pathways, with specialist care from a multidisciplinary team. Competency is especially considered in depth in order to make a decision about referral. There is no suggestion that there is one pathway, and the practice to assessing competency should recognise that the needs of each person are different. Thus, it was argued that there was a problem with the way the lower court made generalisations about a child’s competency to consent to puberty blocking treatment. Counsel argued that each individual is having a unique internal experience, every 12-year-old is different, and there are special kinds of different. There shouldn’t be any lines drawn except by Parliament. We should not single out one particular type of treatment with a different approach. It is a highly fact sensitive question. Counsel stated, ‘Gillick is good for everything’. But, it was suggested, Gillick had not been dealt with correctly by the High Court.
Accordingly, it was also stated that the court had been wrong to import the approach from the Mental Capacity Act 2005, and that any generalised list is wrong because of Gillick. If there was any place for a list, it should be devised by clinicians not judges (unless they are first advised by clinicians).
Counsel for the appellant then referred to the Family Law Reform Act 1969, section 8(1) of which states that 16- and 17-year-olds can consent to medical treatment as if they were of full age. She referred to this as a presumption of competence and argued that we cannot deviate from statute by sowing a seed of doubt in clinicians resulting from the suggestion that court authorisation is a pre-requisite to the prescription of puberty blockers.
Counsel also highlighted that puberty blocking treatment should not be considered experimental, given that it is around 30 years old. Evidence was given to show that it is not uncommon to use puberty blockers off-licence.
Ultimately, counsel for the appellant suggested that the approach should be governed by the Family Law Reform Act 1969, Gillick, the recent case of AB, and the NHS, GMC and CQC guidelines. It was suggested that the approach of the lower court should be abandoned.
Counsel for the Respondent
Counsel for the respondent (Keira Bell) expressed concerned that the Tavistock’s process for giving information and ascertaining competency was not in-depth enough for a child to be able to understand. Counsel suggested that the approach adopted by the lower court struck an appropriate balance between three strands of public interest: the autonomy of the child, the best interests of the child and the rights of the child and others.
Counsel thus defended the criteria set out by the lower court and suggested that this was not incompatible with the approach set out in Gillick. It was argued that the lower court had properly understood and applied Gillick. Referring to the judgments of Lord Scarman and Lord Fraser in Gillick and reciting the well-known ‘Gillick competence’ principle, counsel highlighted that a child must understand ‘fully’ what is proposed. The criteria in the lower court in Bell is ensuring this full understanding and he suggested that Gillick should be adopted for more complex issues.
Counsel for the respondent maintained the lower court’s position that puberty blockers are experimental due to the lack of evidence base indicating otherwise.
Comparison was made to sterilisation cases, in which it is considered to be a good idea to involve the court.
The judges did not specify when the judgment is to be handed down but stated that it will be ‘some time’ before it is published.
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