English Court of Appeal sets aside High Court guidance on prescribing puberty blockers to children

The Tavistock and Portman NHS Foundation Trust appealed after two claimants, Kiera Bell and Mrs A, the mother of a child suffering from gender dysphoria, commenced judicial review proceedings against the Trust challenging its practice of referring children to two other NHS trusts which would then prescribe them puberty blockers.

The appeal was heard by the Lord Chief Justice of England and Wales, Lord Burnett of Maldon, sitting with the Master of the Rolls, Sir Geoffrey Vos, and Lady Justice King. NHS England appeared as an interested party but did not make representations, with a further nine interveners.

Inconsistent conclusion

The appellant had operated a Gender Identity Development Service for patients up to the age of 18 since 1989. The first respondent had been treated with puberty blockers and then progressed to surgical intervention after being referred to GIDS and contended that the information she had been provided with at the time of her referral had been insufficient.

It was held by the Divisional Court that for a child to have competence to consent to taking puberty blockers they would have to be able to fully understand the implications of not just taking the blockers but of progressing to cross-sex hormones and the subsequent long-term physical effects that would result from greater medical intervention.

The Divisional Court concluded that it was extremely unlikely for a child under 13 to be able to attain this competence, and very doubtful in the case of children aged 14 or 15. It also indicated that it would be appropriate to make an application to the court for sanction to proceed with treatment in these cases, and in cases concerning 16 or 17-year-olds where there was any doubt about the long-term best interests of the child in question.

It was submitted for the appellants that the guidance given by the court was wrong in law. It had misapplied the law given in Gillick v West Norfolk and Wisbech Health Authority (1986) in relation to the consent of minors to surgical or medical treatment and drawn a conclusion inconsistent with the Family Law Reform Act 1969. Further, the approach of the court discriminated against children with gender dysphoria in a manner that could not be justified and was therefore in breach of article 14 of the ECHR.

Not in a position to generalise

Delivering the judgment of the court, Lord Burnett of Maldon said of the Divisional Court’s approach to the evidence: “The legal issue before the Divisional Court was not a general inquiry into the content of information and understanding needed to secure the informed consent of a child, although we have great sympathy with the Divisional Court given the large volumes of materials which informed that clinical issue.”

On whether the court was right to have given the guidance it did, he said: “We recognise that the guidance stemmed from the understandable concern of the Divisional Court for the welfare of children suffering from gender dysphoria who, it is common ground, are deeply distressed and highly vulnerable. In our judgment, however, the court was not in a position to generalise about the capability of persons of different ages to understand what is necessary for them to be competent to consent to the administration of puberty blockers.”

He continued: “In practice the guidance would have the effect of denying treatment in many circumstances for want of resources to make such an application coupled with inevitable delay through court involvement. Furthermore, the guidance that there should be an application to the court in circumstances where child, parents and clinicians all consider the treatment to be in the best interests of the child would be inconsistent with the conclusion of the Supreme Court in An NHS Trust v Y (2018).”

Lord Burnett concluded: “The focus of this appeal was squarely on Gillick and whether, by making the declaration accompanied by guidance requiring (probably frequent) court intervention, the Divisional Court had placed an improper restriction on the Gillick test of competence. In our judgment, whilst driven by the very best of intentions, the Divisional Court imposed such a restriction through the terms of the declaration itself, by the utilisation of age criteria and by the requirement to make applications to the court.”

The court therefore concluded that the guidance given by the Divisional Court was inappropriate, although it noted that there may be individual cases where a court application may be appropriate. The Divisional Court’s declaration was set aside.