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Divisional Court rules on children’s capacity to consent to puberty blocking treatment for gender dysphoria

R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274 (Admin)

Related Member(s):
Paul Skinner, Aidan Wills
Court:
, ,

In a judicial review of the Tavistock and Portman NHS Foundation Trust’s Gender Identity Development Service’s (GIDS) practice of obtaining consent for administering puberty blockers to children with gender dysphoria, a Divisional Court of the High Court (The President of the Queen’s Bench Division, Lewis LJ and Lieven J) has ruled on the circumstances in which children with gender dysphoria can consent to puberty blocking treatment.

Puberty blockers are the first of three possible stages of treatment for children with gender dysphoria. A significant majority go on to receive cross-sex hormones. They are administered by two other NHS trusts (which intervened in the proceedings) following referrals from the Tavistock. The Claimants, Keira Bell (a former patient of the Tavistock) and “Mrs A” (the mother of a child potentially to be treated at the Tavistock) challenged the Tavistock’s practice of obtaining consent from children for this treatment, arguing that people under 18 are not competent to give consent and that misleading and insufficient information is provided to them. The Court considered 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”.

Allowing the claim, the Court concluded that it “is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [puberty blockers]”  and that it was also “very doubtful” that children aged 14 or 15 “could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent”. These conclusions were reached on the basis that the judges regarded the treatment as involving “significant, long-term and, in part, potentially irreversible long-term physical, and psychological consequences for young persons” and as being “experimental or innovative in the sense that there are, at present, limited studies/evidence of the efficacy or long-term effects of the treatment”. The consequence of this, the Court held, is that an application to the court should be made to determine whether administering puberty blockers would be in a child’s best interests. The judges suggested that this approach may also be appropriate for 16 and 17 year-olds.

Paul Skinner and Aidan Wills were involved in the case.

The Court’s judgment is available here, and a summary is available here.