Today, Tuesday 1st December 2020, judgment was delivered at the High Court in London in the case against The Tavistock and Portman NHS Trust concerning the legality of prescribing puberty blocking drugs to young persons as part of treatment to deal with gender dysphoria.
These are our first impressions of the judgment.
The case was brought by two claimants: Keira Bell and ‘A’.
Keira is a young woman who, at about the age of 15, was prescribed puberty-blocking drugs to halt the process of developing female sexual characteristics. She eventually transitioned to a masculine gender identity having taken cross-sex hormones to promote male characteristics and then undergoing surgery. A is the mother of a 15 year old girl. A is concerned that her daughter may be referred to the Gender Identity Development Service and may be prescribed puberty blockers. The claimants contended that the practice of prescribing puberty-blocking drugs to children under 18 was unlawful as they lacked competence to give valid consent to the treatment.
In its summary of the judgment the court highlighted eight key pieces of information that a child would have to understand, retain and weigh in order to be competent to give valid consent:
- 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, 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.
In considering these points the court considered it ‘highly unlikely’ a child 13 or under could give informed consent and ‘doubtful’ that a 14 or 15 year-old could weigh the long term risks.
It is the case that the law as it stands assumes that young people of 16 years and older can give informed consent. However, in recognising this constraint, the court said in its summary: “Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, the court recognised that clinicians may well regard these as cases where the authorisation of the court should be sought before starting treatment with puberty blocking drugs.”
This seems to be saying clinicians “should” seek the court’s authorisation – i.e. a guideline rather than an instruction. Taking a closer look at the full judgement the court says “We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.”
The implication here is that not involving the court would be considered ‘inappropriate’. Consequently, the effect is likely to be that clinicians will be obliged to seek the court’s approval.
For parents of children who have post-pubertal gender dysphoria (often called ROGD), this judgment might seem on the face of it to be too little, too late. Such parents are more concerned with the potential harms of cross-sex hormones and surgeries than of puberty blockers. However, this judgment does offer some cause for hope in that regard. The eight conditions given by the court consider cross-sex hormones and surgeries, and so those points, surely, must also apply in relevant cases. It might be the case that further legal cases will need to be brought to make such assumptions concrete. Alternatively, the legal departments of the Tavistock and Portman NHS Trust and co-defendant hospital trusts could decide that there is enough in this ruling to bring about the tighter restrictions on cross-sex hormones and surgeries that we all seek.
The High Court Judgment and its Summary can be found here: https://www.judiciary.uk/judgments/r-on-the-application-of-quincy-bell-and-a-v-tavistock-and-portman-nhs-trust-and-others/
