Bell v Tavistock

R (on the application of) Quincy Bell and A -v- Tavistock and Portman NHS Trust and others,[1] more often called simply Bell v Tavistock, is a decision of the High Court of Justice of England and Wales, on the question of whether puberty blockers could be prescribed to under-18s with gender dysphoria. It is related to Gillick competence, the legal principle governing under what circumstances under-16's can consent to medical treatment in their own right.[1] By contrast, people aged 16 or older are presumed to have the ability to consent to medical treatment (Gillick does not apply).[1]

The court ruled that it was unlikely that a child under the age of 16 could be Gillick competent to consent to puberty blocking treatment.[1] The court also said that "[in] respect of young persons aged 16 and over […] we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment".[1]

History

In October 2019, a legal complaint (a request for judicial review) was lodged against the NHS Gender Identity Development Service (GIDS) at its satellite site in Leeds. The suit was brought by "Mrs. A", the mother of a 15-year-old patient on the GIDS waiting list, and Sue Evans, a former nurse at the Leeds GIDS satellite site.[2][3] It alleges that advice around hormone therapy was "potentially misleading" and that true informed consent could not be given under such circumstances. The suit describes hormone therapy as "experimental" and states that there is "robust evidence" to show long-lasting medical effects of hormone therapy.[3] The lawyer representing the claimants said the lawsuit would be "pressing the case of Gillick to its breaking point".[2]

Some time after January 2020, Evans passed on her role as complainant to Keira Bell "who was prescribed puberty blockers by GIDS when she was 16, thus her name is included in the case label. Bell had a double mastectomy aged 20, and now regrets transitioning, which has left her with 'no breasts, a deep voice, body hair, a beard[, and] affected sexual function'. She may well be infertile as a side effect of the drugs."[4]

Content

In a judgment delivered on 1 December 2020, the judges said that it was highly unlikely that a child aged 13 or less would be competent to give consent to the administration of puberty blockers, and that it was doubtful that 14 or 15 year olds could understand the long-term risks and consequences of this form of treatment. Where the young person is 16 or over, "…we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment."[5]

The Court said (126) "Where the decision is significant and life changing then there is a greater onus to ensure that the child understands and is able to weigh the information" and concluded:

  • (151) "A child under 16 may only consent ... where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment,... and its potential life changing consequences for a child. There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent.... It is highly unlikely that a child aged 13 or under would be competent to give consent .... It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences ...."
  • (152) "In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment."

Reactions

A spokesperson for the Tavistock and Portman NHS Foundation Trust (the defendant in the suit) said it was disappointed in the decision and intended to appeal.[6] Bell, one of the claimants, expressed approval of the judgment.[7]

Mermaids, a UK charity for gender variant and trans youth, described the ruling as a "potentially devastating blow to trans under-16s", and a "betrayal of trans young people".[6]

The Bayswater Support Group, which describes itself as supporting the parents of children with adolescent-onset gender dysphoria, welcomed the ruling.[8]

The UK human rights groups Amnesty International UK and Liberty issued a joint statement expressing disappointment in the judgement and concern "not only for what this means for the health and well-being of trans young people, but the wider implications this will have on the rights of children and young people of all genders, particularly on consent and bodily autonomy."[9]

In the immediate aftermath of the judgment, there were many reports of existing patients at GIDS having their treatment abruptly cut off,[10] and that even care for patients over the age of 16 was being affected.[11]

Appeal

Leave to appeal against the decision of the High Court was granted in January 2021.[12]

References
  1. "R (on the application of) Quincy Bell and A -v- Tavistock and Portman NHS Trust and others". Courts and Tribunals Judiciary. 2020-12-01. Retrieved 2020-12-06.
  2. Doward, Jamie (2020-01-05). "High court to decide if children can consent to gender reassignment". The Observer. Retrieved 2020-12-06.
  3. Social Affairs Editor, Greg Hurst (12 October 2019). "Mother sues Tavistock child gender clinic over treatments". The Times. ISSN 0140-0460. Retrieved 13 January 2020.
  4. Bartosch, Josephine (5 December 2020). "Why I was right to blow the whistle on the Tavistock Clinic over puberty blockers". Telegraph Media Group Limited.
  5. "Puberty blockers: Under-16s unlikely to be able to give informed consent 1 December 2020". BBC. BBC.
  6. Parsons, Vic (2020-12-01). "Trans kids must understand risks of hormone therapy to receive life-saving puberty blockers, judge rules in landmark case". PinkNews. Retrieved 2020-12-06.
  7. "Puberty blockers: Under-16s unlikely to be able to give informed consent 1 December 2020". BBC. BBC.
  8. Doward, Jamie. "Keira Bell lawyer warns on internet coverage of transgender issues 6 December 2020". Observer. Guardian. Retrieved 31 Dec 2020.
  9. "Amnesty International UK and Liberty joint statement on puberty blockers". Amnesty International. 2020-12-03. Retrieved 2020-12-06.
  10. Andersson, Jasmine (2020-12-09). "Families of trans children 'broken' after sudden puberty blockers rule changes". i.
  11. Andersson, Jasmine (2020-12-21). "Treatment plans at gender clinics have 'effectively stopped' for young trans people, warns clinician". i. Retrieved 2020-12-23.
  12. Topping, Alexandra. "HIgh court grants leave to appeal to UK gender identity service 19 January 2021". Guardian. Guardian. Retrieved 20 January 2021.
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