2021-09-19 19:47:15
In Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, the Court of Appeal has overtunred the Divisional Court’s decision on the the continuing practice of the Tavistock Cliniic to prescribe puberty-suppressing hormone blockers to children under the age of 18 who experience gender dysphoria. It was accepted that the prescription of puberty blockers and then cross-sex hormones (two common steps in treatment for gender dysphoria in children) was in itself unlawful.
The Claimant’s aim was to require, as a matter of law, the involvement of the court before anyone under the age of 18 was prescribed puberty blockers thus denying the opportunity of consent to such treatment either individually or with the support of their parents or legal guardians. The argument was that those under 18 were not capable in law of giving valid consent to the treatment. The Divisional Court had agreed with the Claimant.
The case turned on the application of the House of Lords decision in Gillick v. West Norfolk and Wisbech Health Authority [1986] AC 112 (“Gillick”), concerning the provision of contraception. In that case, the House of Lords made clear that it was for the clinician to decide whether a child under 16 could give informed consent to the prescription of contraceptives. Lord Fraser had said at that:
“[t]he only practicable course is to entrust the doctor with a discretion to act in accordance with his view of what is best in the interests of the girl who is his patient.”
He continued that:
“the doctor will … be justified in proceeding without the parents’ consent or even knowledge provided he is satisfied on the following matters: (1) that the girl (although under 16 years of age) will understand his advice; (2) that he cannot persuade her to inform her parents …; (3) that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment; (4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer; (5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent.”
In Bell, the Divisional Court had been particularly concerned with difficulties it thought that under-16s would have in understanding and weighing up information. The heart of Tavistock’s appeal was that the Divisional Court had 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; and that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment.
The Court of Appeal found that there was no difference in principle between the cases of Gillick and Bell. It considered that requiring an application to be made to the court before treatment was given “placed patients, parents and clinicians in a very difficult position. In practice the guidance would have the effect of denying treatment in many circumstances for want of resources to make such an application coupled with inevitable delay through court involvement.”
The Court of Appeal placed greater trust in the judgement of clinicians than the Divisional Court had done, saying:
“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…Those clinicians must satisfy themselves that the child and parents appreciate the short and long-term implications of the treatment upon which the child is embarking. So much is uncontroversial. But it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances, as envisaged by Gillick itself, and by reference to developing understanding in this difficult and controversial area. The clinicians are subject to professional regulation and oversight.”