A new decision raises wide ranging implications for the treatment of children with gender dysphoria.
The High Court has recently given a landmark decision in relation to the treatment of young people with “puberty blocking” medication. The case was a judicial review brought against The Tavistock and Portman NHS Foundation Trust.
The Court was asked to decide whether as a matter of general principle patients who were under 18 could give consent to the medication which was given as part of the Trust’s Gender Identity Development Service (GIDS). The Court was not making decisions on individual cases and this was not a clinical negligence case, but the quality of information provided to patients was examined by the Court in the context of an allegation that the clinic provided inadequate and misleading information to patients in a decision as to whether to undergo the treatment.
The Court concluded that the legal principles were guided by the case of Gillick which states that children can lawfully consent to medical treatment if they have the necessary understanding, which will be a matter of individual judgement on a case by case basis.
In the case of this type of treatment, the Court felt that it could be properly categorised as “experimental” in the sense that the effects and long-term risks were still poorly understood (a much disputed issue in the case). There was evidence to suggest that many patients who received the treatment went on to have cross-sex hormone treatment, the effects of which were effectively irreversible and life-changing and so, even if the clinic was right in saying (as they did) that the puberty blocking medication of itself was reversible, in practice it often led to further treatment which was irreversible: it was not as simple as seeing it as a “pause” whilst the patient considered the options. As such, Dame Sharp in giving the judgment of the Court said that decisions on treatment must be seen in the context of a much wider course of treatment, the consequences of which were likely to be life changing.
The Court gave three bands of age range in its guidance for the management of such cases:
- those under 13 were said to be unable to be Gillick competent to make decisions on this treatment;
- ages 14-15 were “doubtful” to have the necessary capacity; and
- those 16 and 17 were covered by the Mental Capacity Act and so had a presumption of capacity but even in this bracket the Court was very cautious in saying there should be a low threshold for making an Application to the Court of Protection to give authority to proceed.
The judgment has inevitably produced a diverse reaction: transgender groups and The Tavistock and Portman see this as a significant step backwards and the Trust has indicated it is seeking permission to appeal the decision, and confirms its ongoing support for the review commissioned by NHS England led by Dr Hilary Cass.
The claimants argue that it is properly protecting the lives of vulnerable individuals who they claim have been misled into treatment which has had a devastating impact on their lives.
In its press release, The Tavistock and Portman confirm:
“The Court has ruled that there will be a stay on implementation of its judgment until the later of 22 December or the determination of any appeal. This will give us a chance to work through the specific implications of the judgment for different patient groups with our partners, University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospitals Trust. We will not be making new referrals to endocrinology until we have more clarity.”
We will continue to follow and report on this case.