When children’s rights and children’s welfare collide(?): Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274

This blog post has been contributed by Robert Jago, Module Convenor for Family law.

At the end of 2020 a particularly important decision was handed down by the High Court which can be seen to question what happens when there is an arguable tension between the assertion of children’s rights and an attempt to safeguard the welfare best interests of the child. In Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274, the claimants Ms Bell and Mrs A brought a claim for judicial review of the practice of the defendant hospital, through its Gender Identity Development Service (GIDS), of prescribing drugs to persons under the age of 18 which have the effect of suppressing the developmental signs and effects of puberty (often referred to as puberty blockers). These drugs are normally prescribed to someone under the age of 18 who is experiencing gender dysphoria. This is a condition where people experience high levels of distress because of a mismatch between their sex at birth and their perceived identity. The case report confirms that these drugs have been prescribed for those who are as young as 10 years old.

The principal issue for the court in Bell was to confirm the circumstances in which a child or young person may be competent to give valid consent to treatment in law, and the process by which consent to the treatment is obtained. Students of Family Law will know that a young person who is between the ages of 16 and 18 are presumed to have capacity to consent to medical treatment as if they were an adult under s8 Family Law Reform Act 1969. The question as to when those under 16 can lawfully consent to medical treatment, when their parents refuse, has since the case of Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112, been where it can be demonstrated the young person has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment and provided that certain conditions are satisfied. This has become known as a young person being ‘Gillick competent’.

In Bell the claimants argued that children and young people are not competent to give consent to the administration of puberty blocking drugs. The claimants also argued that the information provided by the defendant is both misleading and insufficient to enable children and young people to give informed consent and subsequently the absence of procedural safeguards and the inadequacy of information provided amounts to an infringement of the children’s rights under Article 8 ECHR. The defendant argued that children and young people were capable of giving consent and met the informed consent requirements as set out in Montgomery v Lanarkshire Health Board [2015] AC 1430. The defendant also confirmed the obtaining of consent was a process not an event and if a child was not initially ‘Gillick competent’ then further work, with additional information, would be undertaken to enable further understanding as a way of securing the necessary competence.

The High Court drew the distinction between those who were under 16 and those between 16 and 18. For those between 16 and 18 the legal presumption operates (albeit a rebuttable one).  For those under 16 the court concluded that they may only consent to the use of puberty blockers where they are competent to understand the nature of the treatment. The court was not persuaded as to the arguments presented by the defendants in the case but were persuaded by the claimants’ concerns. The data presented to the court regarding the safety and reversibility of puberty blockers was deemed to be ‘sparse’ and given the court saw the treatment as ‘experimental’ it was felt that those consenting would not be able to sufficiently understand the risks and benefits of the treatment. The court goes on to confirm that in the current circumstances ‘it is highly unlikely’ that a child aged 13 or under would be competent to give consent for the administration of puberty blockers and ‘doubtful’ that a child aged 14 or 15 could understand and be in a position to weigh up the long-term consequences of the administration of these drugs.

The decision in Bell is clearly controversial. On the one hand there has been widespread concern as to the impact of this decision on those who have gender dysphoria and who are now of an age unlikely to be able to take puberty blockers. It is also noted that puberty itself provides a window for this treatment to be effective and to minimise any associated distress. There are also two key concerns noted by Dr Ruth Fletcher (see Twitter post) that firstly the reference to children in certain age groups appears to undermine the principle in Gillick that the decision is person specific and secondly the level of understanding in an area of treatment that the court has dubbed ‘experimental’ appears to require a higher level of understanding than for those young people who are requesting other forms of medical treatment. On the other hand, the High Court has made it clear that to safeguard children’s welfare best interests it is necessary to persuade the court, given the long-term impact of this type of treatment, that puberty blockers are a safe and reversible treatment for children and young people.

As a coda, this collision between the furthering of children’s rights to consent to treatment and the cautious concerns of the welfare principle as articulated by the High Court in Bell may be a temporary one. The subsequent case of AC v CD & Others [2021] EWHC 741 (Fam) confirmed that parents could consent to the prescribing of puberty blockers for their children and leave to appeal against the decision in Bell has been granted. The hearing will begin in June 2021.