Over the last two days, the Court of Appeal has heard submissions in relation to the decision made by the High Court in December regarding the ability of children under 16 with gender dysphoria to consent to treatment with puberty blockers.
Although the judges in the Appeal made clear that the High Court had not found illegality according to the terms of the initial claim (i.e. that children under the age of 16 could never meaningfully consent to treatment with puberty blockers; or that they were not being provided with the correct information to enable them to do so), the judges had issued a declaration and provided guidance in the judgment that has sown confusion and doubt in the minds of clinicians and patients as to the steps legally necessary for prescription.
Barristers for the Tavistock and Portman NHS Foundation Trust yesterday argued that in its decision the Divisional Court wrongly departed from what’s known as the Gillick principle of the capacity of a child to consent to treatment, and relied on unsubstantiated and improperly submitted evidence.
Fenella Morris QC representing the Trust emphasised the highly responsive and individualised consent checking processes which are applied when considering a referral for the consideration of puberty-blocking hormones. She also argued that the regulatory framework that governs such decisions is already both lawful and effective, in line with the principles set out in Gillick, and that a young person and their family should lawfully be supported by a clinical team to achieve informed consent, rather than requiring intervention by the Court.
Jonathan Hyam QC, Counsel for the Respondents, contended however that the original Divisional Court judgment was correct, and that puberty blockers are experimental drugs with unknown consequences which require special regulation by the Court, particularly as their effects are likely to be difficult for some children to understand. He argued that the previous Court had the discretion to provide guidance on how best to ensure lawful practice by the Tavistock.
Jonathan McKendrick QC representing the NHS Trusts of UCLH and Leeds, whose endocrinologists prescribe puberty blockers, argued that the declaration and guidance provided in December posed a serious threat to the rights and autonomy of the child by improperly interpreting the existing law on mental capacity, and ignored the implications of factors beyond the medical in a clinician’s assessment of their patient. He also emphasised that a ‘progression’ from puberty blockers to cross-sex hormones by all patients was assumed by the High Court on the basis of improper evidence, and provided documents from the NHS Trusts outlining the separate prescriptive processes for the two treatments.
Mr Skinner, for Transgender Trend, who were permitted to make an intervention, argued that it was entirely appropriate for the High Court to have issued guidance where there were concerns about Tavistock’s implementation of the law around the ability of children to consent to treatment.
The judges in the case were keen to point out that they are not able to rule on the appropriateness of treatment with puberty-blocking hormones, only on whether there was an error in the previous court’s declaration and guidance with respect to the law that relates to the ability of a child to consent to treatment.
However, they did express concern about whether the original judgment was in line with the Gillick principles, and queried whether the Court should have provided that guidance at all given that the Tavistock had not been found to be acting illegally. The judges also raised questions about whether judicial review was the correct way for the Respondent to have challenged issues it may have with the pre-existing regulatory guidance, emphasising that it is not the role of the Court to redraft it or to make a professional assessment of conflicting expert evidence.
Our intervention, backed by a coalition of health organisations and LGBTQ+ charities, including the world’s leading authority on hormones, the Endocrine Society, young people’s sexual health organisation Brook, and Gendered Intelligence, was submitted in writing and will be considered alongside the other materials when the judges make their decision.
Overall, although we will not know until the Court of Appeal hands down its decision, our impression is that we had a good hearing and at least some, and we hope much, of the harm done by the Divisional Court to the rights of gender incongruent young people to access medical care is likely to be undone.
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