Court of Appeal re-affirms ‘Gillick competence’ in GIDS judicial review

The Tavistock and Portman NHS Foundation Trust, which leads the national Gender Identity and Development Service (GIDS), has successfully appealed the High Court’s decision on the ability of children and young people to consent to puberty-blocking treatment.

The Tavistock and Portman’s appeal raised important issues around the treatment of young people with gender dysphoria. The Court of Appeal handed down its judgment in Bell and others v The Tavistock and Portman NHS Foundation Trust and others last week (17 September 2021).

By way of background, the case was a judicial review brought against the Tavistock and Portman. The claimants challenged Tavistock’s practice of prescribing puberty blockers to under 18s with gender dysphoria, and sought a declaration that Tavistock’s practice was unlawful in the absence of an order from the court determining that the treatment was in the child’s best interest. The High Court did not hold that the policies or practices of either Tavistock or the NHS Trusts (University College Hospital and Leeds) to whom it referred patients for consideration of treatment with puberty blockers were unlawful, or that the information provided to patients was inadequate to form the basis of informed consent.

Instead, the High Court made a declaration as to the relevant information that a child under the age of 16 would have to understand in order to have the competence to consent to puberty blocking treatment. It also gave guidance on when to involve the Court in these decisions which has been understood by clinicians as suggesting that an application to the court should be the norm.

The issue for the Court of Appeal was whether the High Court was right to make the declaration and give the guidance it did.

Since 1989, Tavistock and Portman has operated a GIDS for under 18s suffering from gender dysphoria. Prior to the judicial review hearing, it was the case that the responsibility for determining whether a child or young person is “Gillick competent” to consent to treatment lay with the clinical team prescribing the medical treatment – and in this case, puberty blockers.

The Court of Appeal allowed Tavistock’s appeal and, in so doing, reaffirmed the principle of Gillick that “it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment”. It explained that “there were great dangers in a court grappling with issues which were divorced from the factual context that required their determination” and as stated in the Burke decision “the court should not be used as a general advice centre”.

The appeal court also held that it was not for the High Court to give guidance “that generalised about the capability of persons of different ages to understand what was necessary for them to be competent to consent to the administration of puberty blockers. The guidance would require applications to the court when there was no legal obligation for such an application to be made. It placed patients, parents and clinicians in a difficult position, and should not have been given.”

In its concluding remarks, the Court of Appeal recognised the “difficulties and complexities associated with the question of whether under 18s were competent to consent to the prescription of puberty blockers and cross sex-hormones” but it stated that it was for clinicians to exercise their judgement knowing how important it was for the patient’s consent to be properly obtained according to the particular individual circumstances. The Court emphasised that “great care is needed to ensure that the necessary consents are properly obtained” with clinicians alive to the possibility of regulatory or civil action where the issues of properly obtained consent can be tested.

The outcome of the appeal has been welcomed by the Tavistock and Portman GIDS commenting that: “The Trust remains committed to working with our commissioners and partners to strengthen both the quality of care and decision making for our patients and the evidence base in this developing area of care.” You can read the full press release here.

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