Bell v Tavistock and Portman NHS Foundation Trust: Considering the potential impact on children’s consent to all medical treatment?

By Rebecca Limb and Liz James

On 1st December 2020, the Tavistock judgment was published. The legal issue concerning the court was identifying the circumstances where a child, under the age of 18 diagnosed with Gender Dysphoria (GD), is competent to give valid consent to the administration of puberty blockers (PB).

The judgment has made no substantial change to the law. Children aged 16 and 17 are presumed to have capacity to consent to medical treatment and children under the age of 16 must be Gillick competent – demonstrate sufficient understanding and intelligence of the proposed treatment – to provide valid consent.

The Gender Identity Development Service (GIDS) took great care to assess children’s competency to consent, ensuring children are fully informed of all the known and unknown risks of PB’s and are individually assessed. Concerning the judges was the year on year increase of children in all age groups being considered Gillick competent and subsequently prescribed PB, and the lack of statistical data on children’s competency when referred to the GIDS.

Expressing distrust in the accuracy and validity of the Gillick competency assessments conducted by GIDS’s, the judges created three guidelines.

First, to satisfy Gillick, children must be informed of all the known and unknow risks of PB AND the risks associated with cross-sex hormones (CSH) and potential gender reassignment surgery (GRS).

Although the first step for patients who wish to receive medical treatment, PB are a distinct treatment that does not require a child to progress to CSH or GRS.

In medical law, it is well established that consent is required for every medical intervention.

Consent for one intervention is not valid consent for another. Requiring children to be fully informed of the risks of CSH and GRS before taking PB is akin to requiring a patient to be fully informed of the risks posed by open heart surgery before taking oral medication for a progressive heart condition.

Whilst it is likely the doctor will recommend surgery to a patient with a progressive heart disease in the future, the patient does not need full understanding of heart surgery to demonstrate competency to consent to take medication.

A child should be aware of Dr Carmichael’s statistics that 55% of children on PB progress to further treatment, but it is deeply concerning that a child must provide informed consent to a distinct treatment they may never have before being prescribed PB. If legally binding, this would have far-reaching consequences for the law of consent.

Second, the court introduced a ‘competency framework’. Based on evidence from experts in child cognitive development, the judges consider it highly unlikely that children under 13 would ever be Gillick competent to consent to PB and are “very doubtful” that 14- and 15-year olds could satisfy Gillick and consent to PB. With regards to 16- and 17-year olds, English Law presumes they have capacity to consent to PB.

Third, further demonstrating distrust in doctors Gillick assessments, because puberty blockers have unknown consequences and are considered innovative and experimental, GIDS may consider seeking the court’s authorisation prior to commencing treatment.

In direct response, GIDS changed their protocols requiring that all patients under 16 must not be referred by GIDS for PB unless a ‘best interests’ order has been made by the court for that specific child. This demonstrates a clear reluctance from doctors to administer PB without the court’s authorisation. We must question whether these guidelines breach the Equality Diversity Act 2010, where children experience barriers to medical treatment because of their protected characteristic.

This judgment also calls into question the validity of Gillick competency assessments conducted in all children’s hospitals, for all conditions. If we do not have confidence in how Gillick competency is assessed, how can we be sure that a child’s consent to ANY treatment is valid?

Could the reluctance seen by GIDS to administer medical treatment based solely on a Gillick child’s consent extend to all areas of innovative or experimental medicine with some unknown risk? A consequence of this judgment is an over reliance on parental consent in all areas of medicine, reducing the power of child’s consent to tokenism. In doing this we diminish the autonomy of children and remove a crucial element in their development to maturity.

Authors: Rebecca Limb and Liz James

Affiliations: University of Warwick and NCC Group’s LGBTQIA+ steering committee

Competing interests: None declared

Social media accounts of post author(s):   Rebecca Limb (https://warwick.ac.uk/fac/soc/law/people/rebecca_limb/)

Liz James (https://www.nccgroupplc.com/careers/inclusion-diversity/lgbtqia/ )

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