A challenge by a mother and a nurse to the use of puberty blockers prescribed for under 16s raises interesting points about consent and capacity in UK law

In the UK, children (those under 16) are deemed competent to consent to care and treatment if they are assessed as having sufficient understanding and intelligence to understand fully what is being proposed.  A child that satisfies the test is referred to as ‘Gillick competent’, after the 1985 case in which the test was established, Gillick v West Norfolk and Wisbech Area Health Authority

In Gillick, the House of Lords had to determine if a child was able to consent to the prescription of contraception by a doctor without the knowledge or permission of her parents.  Its decision, that a competent child was competent to give consent for medical care and treatment without parental knowledge and without requiring the permission of her parents, set a precedent that has remained good law ever since.  At the heart of the court’s decision was the conclusion that the authority of the parent to make a decision about their child’s care and treatment expired once the child is competent to make the decision independently. 

Rather than imposing an arbitrary age on a child’s competency to consent to medical care and treatment, the court in Gillick adopted a case by case approach, allowing for variations in cognitive function and the seriousness of the care and treatment to which the consent relates to be factored into assessments of competence.  The result has led to children being empowered to make decisions about all manner of care and treatment and, unsurprisingly, it has not been without controversy. 

The puberty blocker case

The scope of Gillick competence has been tested in lower courts on a number of occasions without any real effect, and the issue of child consent will now be considered again in the recently publicised case involving children consenting to puberty blockers.

A mother and a nurse have filed an application for judicial review at the High Court that would challenge the legality of a treatment pathway operated by the Tavistock and Portman NHS Foundation Trust gender identity development service (Gids) that includes the prescription of puberty blocking drugs to children, at times without parental consent. They will argue that the prescriptions are unlawful, because the nature of the treatment is such that no child can fully understand the consequence of taking it so as to be Gillick competent. 

A spokeswoman for the Tavistock and Portman said:

“It is not appropriate for us to comment in detail in advance of any proposed legal proceedings. The Gids is one of the longest-established services of its type in the world, with an international reputation for being cautious and considered. Our clinical interventions are laid out in nationally set service specifications. NHS England monitor our service very closely. The service has a high level of reported satisfaction and was rated good by the Care Quality Commission.” 

The proposed application raises interesting and long-standing contentions about the overlap between the rights of children as autonomous beings and the scope of parental authority. In particular, it would appear to suggest that there is a limit to Gillick competency, which if established, would place certain decisions about care and treatment beyond the competency of even the most cognitively gifted of children.

We will continue to follow and report on this case, so do check back for updates.

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