Mrs Justice Lieven has recently given judgment on a case following on from the Bell decision on the NHS gender identity service that we commented on here. Although Bell is going to the Court of Appeal, we understand to be heard in June 2021, this case was able to be determined ahead of that as it raises different legal issues. In Bell the key issue was whether a child could lawfully consent to “puberty blocking” medication. In this case the issue was whether parents could consent on behalf of a child.
The case of AB was brought by the parents of a child referred to as XY who asked the High Court to declare that they could lawfully consent to puberty blocking medication on behalf of XY who is aged 15. The problem was that in the light of Bell, the treating clinicians asked XY’s GP to continue prescribing the medication pending the outcome of the Appeal. Although the GP did in this case continue, the evidence was that the response of GPs generally was not uniform, with some refusing to continue to do so. Even if GPs did agree, it was unclear on what legal basis they did so and whose consent they were relying on.
The judge undertook a detailed review of Gillick and the subsequent case law, and concluded that a parent’s right to consent was not taken away completely, and so even if the child was “Gillick competent” then the parental right remained; and although it could not be used to override a competent child’s decision, it could support it and if necessary, “step in” and make the decision if the child was unable to do so – for example, because the child was unable to decide (for example was unconscious) or declined to decide (for example because the decision was too overwhelming).
The High Court refused to give a definitive opinion on whether there would be a category of cases in which the Court’s approval must be obtained regardless of agreement, but made it clear, of course, that in cases of disagreement then an application to Court will be necessary.
Although there was no suggestion that it was of particular concern in this case, the judge did highlight two issues which are particularly of concern in cases involving puberty blocking medication: firstly, the difficulty in obtaining independent expert evidence in a highly specialised field where opinions are so polarised, and secondly, the potential for “reverse pressure” being placed on parents by children desperate to have the treatment. The judge made it clear neither problem was evident in this particular case, so did not need to deal with it further but this illustrates the complexity and challenges these cases raise.