English High Court rules under 16s unlikely to be able to consent to puberty blocking drugs
The English High Court of Justice has ruled that children aged 15 or younger would be unlikely to be able to give effective consent to the administration of puberty-blocking drugs (PBs), but those aged 16 and over would have the ability to consent to their use.
The claimants, listed on the application as Quincy Bell and Mrs A, sought a judicial review of the practice of the Tavistock and Portman NHS Trust. The first claimant, now living as Keira Bell, was prescribed drugs to halt the development of female sexual characteristics. Mrs A was the mother of a 15-year-old girl who was concerned that her daughter may be referred to the Trust’s Gender Identity Development Service (GIDS).
The application was heard by the President of the Queen’s Bench Division, Dame Victoria Sharp, sitting with Lord Justice Lewis and Mrs Justice Lieven.
The Trust has provided a specialised Gender Identity Development Service providing care to patients up to the age of 18 since 1989. The administration of puberty blockers is used by the GIDS as the first stage of treating gender dysphoria. Until 2011 PBs were only available for patients aged 16 or older, after which they started to be prescribed for those aged 12 to 15.
The first claimant, who was born female, was referred to GIDS when she was 15 after she had begun to experience gender dysphoria from the age of 14. She commenced PBs in 2013 after a number of appointments with the service, during which she was given advice about the effects of PBs, including on her fertility.
In her evidence, the first claimant said she had started having doubts about the process after commencing testosterone. Despite these doubts she went through with a double mastectomy but stopped taking testosterone in January 2019. She said that she had made a “brash decision” as a teenager and used transitioning as a “superficial fix” for her identity issues.
The second claimant’s interest in the action was described as “largely theoretical”. Her daughter was described as having a history of mental health and behavioural problem and had been diagnosed with autism. Mrs A was concerned that her daughter would be referred to GIDS and prescribed PBs, however she would not meet the criteria as the Trust did not prescribe them without parental consent.
Misleading and inadequate
It was submitted for the claimants that children or young persons under the age of 18 were not capable of giving consent to the administration of PBs. Further, the information given by the Trust was misleading and inadequate to form the basis for informed consent.
The claimants stressed that they did not call into question the existence of gender dysphoria or the distress it could cause, but a child still going through puberty was not capable of properly weighing the consequences and side effects, including on their future ability to have children.
The Trust submitted that the first claimant was given the fullest possible information about the process after a large number of consultations and was fully competent to make the decision to take PBs. The process for obtaining informed consent as per Gillick v West Norfolk and Wisbech Health Authority (1985) was fully compliant with the requirements identified by the Supreme Court in Montgomery v Lanarkshire Health Board (2015).
It was further submitted that the vast majority of children referred for PBs were aged 15 or older, and the information given to them varied depending on their age and maturity. For children aged between 16 and 18, it was submitted that if the young person, their parents, and the clinicians were agreed, there was no justiciable issue for the court to rule on.
Attitudes likely to change
In the judgment of the court, to which all three judges contributed, the law relating to consent was outlined as follows: “The question as to whether a person under the age of 16 is Gillick competent to make the relevant decision will depend on the nature of the treatment proposed as well as that person’s individual characteristics. The assessment is necessarily an individual one. Where the decision is significant and life changing then there is a greater onus to ensure that the child understands and is able to weigh the information.”
Considering the nature of the treatment, the court said: “To achieve Gillick competence the child or young person would have to understand not simply the implications of taking PBs but those of progressing to cross-sex hormones.”
Listing the relevant information, it continued: “It will obviously be difficult for a child under 16 to understand and weigh up such information. Although a child may understand the concept of the loss of fertility for example, this is not the same as understanding how this will affect their adult life. A child’s attitude to having biological children and their understanding of what this really means, is likely to change between childhood and adulthood.”
On whether the provision of more information may be a solution, it said: “The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree. There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.”
The court concluded: “In principle, a young person’s autonomy should be protected and supported; however, it is the role of the court to protect children, and particularly a vulnerable child’s best interests. The decisions in respect of PBs have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway.”
Highly unlikely to understand
For these reasons, the court issued a declaration that a child under 16 may only consent to the use of PBs where they are competent to understand the nature of the treatment. It was considered “highly unlikely” this was possible for children aged under 13, and “doubtful” for children aged 14 and 15.
Addressing the position of persons aged 16 to 18 separately, the court said: “So long as the young person has mental capacity and the clinicians consider the treatment is in his/her best interests, then absent a possible dispute with the parents, the court generally has no role. We do not consider that the court can somehow adopt an intrusive jurisdiction in relation to one form of clinical intervention for which no clear legal basis has been established.”
© Scottish Legal News Ltd 2021