Prescription of puberty blockers to children not suitable for Court’s determination, holds Court of Appeal


Re: Bell & Anr v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363

In the treatment of under-18s suffering from gender dysphoria the appellant NHS Trust’s Gender Identity Development Service refers patients to paediatric endocrinologists for consideration of whether they should be prescribed with puberty blockers. The respondents challenged the practice of prescribing puberty blockers to under-18s and sought a declaration that this practice was unlawful in the absence of an order from the Court determining that the treatment was in the child’s best interest.

Although the Divisional Court did not hold that the policies or practices of the Tavistock or the Trusts to whom it referred patients were unlawful, or that the information provided to patients was inadequate to form the basis of informed consent, it made a declaration as to the relevant information that a child under 16 would have to understand in order to have competence to consent to the administration of puberty blocking drugs and gave guidance on when applications should be made to the court for a best interests assessment. The appellant appealed this declaration and submitted that the guidance given by the Divisional Court was wrong in law.

The Court of Appeal (Lord Burnett LCJ, Sir Geoffrey Vos MR and King LJ) decided that the declaration made by the Divisional Court covered areas of disputed fact, expert evidence, and medical opinion, which were not suitable for determination in judicial review proceedings. The case of Gillick v. West Norfolk and Wisbech Health Authority had decided that it was for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment. Additionally, the Court of Appeal considered that the Divisional Court was not in a position to give guidance that generalised about the capability of persons of different ages to understand what was necessary for them to be competent to consent to the administration of puberty blockers. It should not therefore have been given.

The Court however recognised the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones and emphasised that clinicians must be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment and that great care was needed to ensure that the necessary consents were properly obtained.

Paul Skinner and Aidan Wills were involved in this case.