The Court of Appeal has overturned an earlier decision of the High Court in which guidance was given on the circumstances where a child might be able to give consent to the administration of puberty blockers.
Puberty blockers are drugs used to postpone puberty in children and are prescribed to some children diagnosed with gender dysphoria, which is where somebody feels distress as a result of a mismatch between their gender identity (the gender they identify with) and their biological sex. This is sometimes known as gender identity disorder, gender incongruence or transgenderism.
In 2020, the High Court gave guidance on the relevant information a child under 16 would have to understand in order to be competent to give consent to the administration of puberty blockers. The guidance was given on the basis that the court considered it highly unlikely a child aged 13 or under would be competent to give consent to the administration of puberty blockers and that it was very doubtful if 14 and 15 year olds could understand the long-term risks and consequences of such treatment to give consent.
It is important to note the court was not concerned with whether the policies and practices of the NHS trusts involved were unlawful or the advantages or disadvantages of treatment (which is a policy decision for the NHS, the medical profession and Parliament) but with the circumstances in which a child could give valid consent to treatment.
The declaration and guidance led to an amendment to the contract between the NHS and Tavistock and Portman Gender Identity Service (GIDS) which meant that children under the age of 16 should not be referred for consideration of whether they should be prescribed puberty blockers without the court’s authorisation.
The decision resulted in a great deal of upset to those in the transgender community and others who were concerned about the consequences of children with gender dysphoria not being able to access treatment. However, there were also those who welcomed the judgment including the individuals who had brought the case, Keira Bell, a former GIDS patient who transitioned following the administration of puberty blockers before regretting this and de-transitioning, and Mrs A, the mother of a child with gender dysphoria.
A subsequent separate case which concerned a 15 year old individual who had given consent prior to the case above clarified that a parent could give their consent on behalf of their child (unless they were seeking to override the child’s own wishes) without the need for an application to the court. This did not, however, address the situation where a parent does not consent or where parents disagree between themselves.
Following the appeal of the earlier decision by the Tavistock and Portman NHS Foundation Trust, the Court of Appeal found that, in giving the declaration and guidance it did, the High Court had crossed into very difficult areas of disputed fact, expert evidence and medical opinion and that it was for doctors, not judges, to ensure consent to treatment was properly obtained dependent upon the circumstances in each individual case. A blanket requirement to make an application to the court (where there was no legal obligation) simply because of age undermined long-standing principles relating to consent to medical treatment by under-16s.
A further appeal to the Supreme Court is expected, so the position may yet change again. This is a complex area of law which the Court of Appeal acknowledged raises medical, moral and ethical issues and which the courts are increasingly being asked to grapple with.