We are disappointed at the decision of the Appeal Court today to uphold the appeal of the Tavistock and Portman NHS Foundation Trust against the decision of the Divisional Court in Bell & Mrs A v Tavistock.
The Appeal was allowed on the basis that the Divisional Court did not hold that the use of puberty blockers to treat gender dysphoria is unlawful, and that the declaration and guidance issued by the Divisional Court covered areas of disputed fact, expert evidence and medical opinion, which were not suitable for determination in judicial review proceedings.
The Appeal Court judged that Gillick principles are based on the judgment of doctors and clinicians; it is not for judges to decide on the capacity of under-16s to consent to medical treatment.
“At the heart of Tavistock’s appeal is the submission that, in making the declaration, the Divisional Court departed from Gillick, which had established that children under 16 could make their own decisions if assessed individually as competent to do so by their treating clinician. Tavistock submits that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.””
In summation the Appeal Court judged that “the Divisional Court had placed an improper restriction on the Gillick test of competence.”
The judges rejected the idea that the use of puberty blockers for gender dysphoria in children is a unique case. At point 76 in the judgment it is even claimed that consent to puberty blockers is no different to consent to contraception:
“Nothing about the nature or implications of the treatment with puberty blockers allows for a real distinction to be made between the consideration of contraception in Gillick and of puberty blockers in this case bearing in mind that, when Gillick was decided 35 years ago, the issues it raised in respect of contraception for the under 16s were highly controversial in a way that is now hard to imagine.”
Overall, the judgment, although paying lip service to the fact that there are widely opposing views on this issue, accepts evidence from the Tavistock at face value. For example: the claim that only 16% of children are referred on for puberty blockers when previous statements from Dr Polly Carmichael have suggested that the overall figure is 41 – 45%; the claim that only 55% of children on puberty blockers progress to cross-sex hormones when on the GIDS website itself the figure is 98%; and the claim that “the primary purpose of puberty blockers was to give the patient time to think about gender identity” and “treatment with puberty blockers was separate from later treatment with cross-sex hormones,” when the Health Research Authority, in its investigation into the Tavistock’s Early Intervention Study states:
“It would have reduced confusion if the purpose of the treatment had been described as being offered specifically to children demonstrating a strong and persistent gender identity dysphoria at an early stage in puberty, such that the suppression of puberty would allow subsequent cross-sex hormone treatment without the need to surgically reverse or otherwise mask the unwanted physical effects of puberty in the birth gender.”
Although much is made of the fact that it is not the role of the courts to assess clinical evidence, it is inevitable that courts will be influenced by the evidence available to them. In the case of puberty blockers the evidence is so slight, the ethical considerations so serious and provision of alternative, less invasive treatments have not been made available by the Tavistock. Nor have the regulatory bodies questioned the ideological basis for a ‘gender affirming’ approach.
The judgment in Bell & Mrs A v Tavistock is quoted extensively in the Appeal Court judgment and none of its points are disputed except from a legal perspective. All the concerns still stand. The Appeal Court states:
“Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.”
The original judicial review and the subsequent Appeal have brought the issue of preventing puberty in children to global public, professional and political attention. Keira Bell has changed the discussion. Permission to appeal will be sought in the Supreme Court.
In collaboration with the Evidence Based Social Work Alliance (EBSWA) we have produced a document outlining our thoughts on where we can go from here. Our gratitude to EBSWA and Sarah Phillimore for all the work they have put into this. Download the document here: