The Tavistock Appeal Court ruling

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:

This Post Has 11 Comments

  1. Sarah

    A very disappointing judgement. I wonder if this decision on judges having no legal say over clinical judgments on medical matters related to Gillick competence might be in any way related to the currently live issue of injecting children against a virus they are all but immune to already, with an experimental injection with no longterm safety studies and from which healthy children have already died and been seriously injured? (See, for example, Maddie du Garay, I think her name is.)
    This ruling – that judges have nothing to say if a clinician has decided a child has Gillick competence to assent to potentially dangerous treatment with negative consequences – may sadly prove useful in arenas outside the puberty blocker context.
    Thank you for standing up for the wellbeing of children.

  2. Ian Court

    At some point, the number of permanently damaged bodies and life chances will be impossible to ignore but that point, especially in the legal and medical professions, has obviously not yet been reached.Unfortunately, this judgement means that the temporary brake applied to the gender industry in the UK, has been removed; however, the zeitgeist has shifted and awareness is growing because of Keira and Mrs A and those who supported them. The Tavistock cannot surely think it is ‘back to business as usual’ ? The reference to Gillick is absurd and monstrous in its implications- on that basis, all underage children could be given access to puberty blockers without parent/carer knowledge or consent. It is a bizarre notion to conflate underage access to contraception with access to untested drugs with potentially devastating long term consequences.

  3. Gladiatrix

    I understand that a request for permission to appeal will be lodged but it seems to me that this judgement shows misconduct by the judges involved. They have wrongly described evidence, conflated medical treatments to the point of being untruthful and ignored the overarching public health issue. Medicalised child abuse.
    If Transgender Trend were to set up a petition to the JCIO requesting disciplinary proceedings be brought against the judges I would happily sign it.

  4. charles lewis

    The Court of Appeal is saying in effect: let the docotors decide. Great — except you can’t trust the doctors. The ones who will do the deciding are already under the control of the activists, i.e. they are the ones who have not retired from the Tavistock.

  5. Dick Heasman

    Very annoying, but please don’t despair. The Supreme Court, and previously the House of Lords, has a good record in overturning some of the barmier decisions (and there have been a fair few) of the Court of Appeal.
    I see no reason to suppose they will not do the same here.

  6. Mia Campioni

    It is unbelievable how unenlightened these judges are about the development of children . It is high time that mothers get a place at the legal table! YTo compare this issue with anti – virus inoculations is laughable!

  7. G.P. Joyce

    Well said, Gladiatrix.
    Thank you for the enclosed document, Ed.

  8. charles lewis

    I am as disappointed as any of you, but my comment as a lawyer is as follows:
    I have now read the full judgment. It is well argued and hard to disagree with.
    The court held:
    1. The situation is covered by the majority judgment in the House of Lords in the case of Gillick. It is for clinicians to assess a child’s ability to consent to treatment, not for the court (I guess they did not view with favour a whole slew of applications to the court!). The trouble is, of course, that the relevant clinicians are in the grip of the activists and so will not make any sort of unbiased assessment.
    2. The relief sought was inappropriate for judicial review. The court below effectively made findings on disputed evidence. This is pretty technical, but I suppose they are right.
    I don’t see an appeal getting anywhere. Maybe Keira could try suing the NHS for negligent treatment.

    PS I advise reading from para 58 onwards.

    1. Dick Heasman

      This sounds a bit defeatist to me. The pundits did not on the whole expect the Supreme Court to overturn the Court of Appeal judgement that the proroguing of Parliament was unlawful, but the Court did just that, unanimously.

  9. Anne-Marie Mazur

    Curiously, I don’t see my comment that stated material reality posted under this article. Very curious, indeed. If you can’t tolerate a critique pointing out how lack of theory and practice to remedy this will never solve the problem, then what’s the point of discussion about it? Don’t like that I pointed out that it is a fact that the will of the med/pharm industrial complex will be carried out by the state as is always done? Well, you keep working within the very same system that oppresses us all, with this topic being no different and let me know when doing the same thing over and over again but expecting a different outcome tells you just what your “method” really is. Clearly for most of these gender critical sites, it’s simply to expound upon the tragedy and put forward no solution. There is a name for that activity. Several, actually. And now it’s time to unsubscribe.

    1. Dick Heasman

      Does anyone understand what this post is saying or what point it is trying to make? And who is the “you” she keeps referring to?

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