On 17 September 2021 the Court of Appeal handed down the awaited judgment in the case of Bell v Tavistock. The full written case report can be found here. We reported on the Divisional court’s decision at the end of last year, and on the Court of Appeal hearing which took place in June. Before outlining the Court of Appeal judgment, a quick summary is provided below of the Divisional court’s decision and the arguments made at Court of Appeal hearing.
The initial case concerned an application by two claimants. First, Kiera Bell, who had previously been a patient of the GIDS centre, part of the Tavistock and Portman NHS Trust, and had been provided with puberty blockers aged 16. She later went on to be treated with cross sex hormones and then underwent surgery as an adult. She alleges that that she regretted having the treatment. Second, Mrs A, the mother of a child with autism experiencing gender dysphoria and who had been referred to the Tavistock but not yet attended any appointment or received any treatment.
The case was a judicial review application 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 Decision of the Divisional Court
Although the Divisional Court did not hold that the policies and practices of the Tavistock were unlawful, it made a declaration which provided guidelines as to when a child will be competent to give informed consent to puberty blockers. They set out 8 factors that the child would have to understand, retain and weigh up:
- 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 also 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 advised that a clinician should seek court authorisation before treating any child under 18, including 16- and 17-year-olds.
Grounds for Appeal
The Tavistock appealed against the declaration and submitted that the guidance given by the Divisional Court was wrong in law. They put forward eight 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
Judgment of the Court of Appeal
The Court of Appeal upheld the appeal by Tavistock and Portman NHS Trust. It held that the Divisional court was wrong to make the make the declaration and provide the above guidance. At paragraphs 61-65, they addressed the question of whether the Divisional Court approached the evidence appropriately. They stated that it was not for the court hearing a judicial review case to decide disputed issues of fact or expert evidence. This was particularly in relation to the findings that puberty blocking treatment was experimental and that the majority of children who take puberty blocking treatment are on a pathway to further medical interventions. The Court stated ‘we think that it would have been better to avoid controversial factual findings’ [at 63] and further ‘these judicial review proceedings did not provide a forum for the resolution of contested issues of fact, causation and clinical judgment’ [at 64].
The Court then outlined its reasoning as to why it considered that the Divisional court was incorrect to make the declaration. With reference to the guidance provided, the Court stated that ‘It comes close to providing a checklist or script that clinicians are required to adopt for the indefinite future in language which is not capable of clear and uniform interpretation and in respect of which there were some evidential conflicts’ [at 70]. They continued ‘Some of the factors identified in the declaration are simple statements of fact. Others beg questions to which different clinicians would give different answers’ [at 70]. In addition, ‘The declaration would require the clinicians to suspend or at least temper their clinical judgment and defer to what amounts to the clinical judgment of the court…’ [at 71]. The court then proceeded to provide a reminder of the reasoning in Gillick, that it is for doctors and not judges to make decisions about the capacity of a person under 16 about their medical treatment. The Court stated that ‘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’ [at 72]. Further, it added that ‘The legal issue before the Court was not a general inquiry into the content of information and understanding needed to secure the informed consent of a child’ [at 78].
Next the Court explained why it considered that it was ‘inappropriate’ [at 89] at for the Divisional Court to provide guidance. They maintained that the Divisional Court ‘was not in a position to generalise about the capability of persons of different ages to understand what is necessary for them to be competent to consent to the administration of puberty blockers’ [at 85]. Further, it was stated that, ‘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. [at 86]. They also recognised that this would be inconsistent with the approach set out in An NHS Trust v. Y  UKSC 46,  AC 978. However, the Court added, ‘That is not to say that such an application will never be appropriate. There may be circumstances where there are disputes between one or more of clinicians, patients and parents where an application will be necessary’ [at 89].
In the concluding section of their judgment, the Court stated:
‘We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. 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’ [at 92].
Additionally, it emphasised that clinicians should exercise their judgement according to the particular circumstances of the case and satisfy themselves that the child and parents appreciate the short and long term consequences of the treatment’ [at 93]. The fact that GIDS had been reported to have fallen short of certain standards should not affect the lawfulness of its service specification or ‘entitle to court to take on the task of the clinician in determining whether a child is or is not Gillick competent to be referred on to the Trusts or prescribed puberty blockers by the Trusts’ [at 93]. Finally, the Court stated that ‘the Divisional Court had placed an improper restriction on the Gillick test of competence’ [at 94] through age criteria and mandating applications to court.
Will this case go to the Supreme Court?
This case has attracted a lot of attention amongst lawyers, the medical profession and the media. The Court of Appeal decision is likely to come as welcome news to the transgender community. It is not yet known whether leave to appeal to the Supreme Court will be sought.