Restoring Agency to Clinicians over Transgender Healthcare Treatments in Bell v Tavistock by Thomas Heron

Restoring Agency to Clinicians over Transgender Healthcare Treatments in Bell v Tavistock

By Thomas Heron, SS Law

On September 17th 2021, the Court of Appeal of England and Wales reversed the highly controversial judgment of the High Court in R (on the application of Quincy Bell and A) v Tavistock and Portman NHS Trust and others (Tavistock). The Court of Appeal found that the lower court had erred in issuing guidance to the effect that it was “highly unlikely” that children under the age of 16 would be competent to understand and appreciate the long-term consequences of “experimental” treatments for gender dysphoria in children.

The Court of Appeal further found that puberty-blocking hormonal treatment bore no characteristics which differentiated it from other standard medical treatments so as to warrant the “guidance” the High Court issued to supplement the standard test for children’s medical consent in Gillick v West Norfolk and Wisbech Area Health Authority (Gillick).

The appellate decision has been welcomed by advocates of transgender healthcare rights for its acknowledgement that evaluation of transgender children’s competence to consent to hormonal treatments for gender dysphoria is the role of clinicians and not the courts. In the context of stagnant reform of the legal position of transgender people in the United Kingdom, this validation from the courts of the legitimacy of standard treatments has an important role to play in legitimising transgender issues.

Background

The Tavistock clinic is a part of the United Kingdom’s Gender Identity Development Service, referring transgender patients experiencing gender dysphoria for treatment through the NHS. If consent is obtained from the patient (and their parents where appropriate), treatment courses normally involving Puberty Blockers (“PBs”) and subsequent Cross-Sex Hormonal Replacement Therapy (“CSH”) are prescribed to treat gender dysphoria.

The main claimant in the case is a woman who previously identified as a transgender male prior to the proceedings and sought and obtained a referral for puberty blockers from the Tavistock clinic. Following a number of years on preliminary puberty-blocking treatment and subsequent hormone replacement therapy and surgery, she identified differently and regretted the changes that she felt her referral and treatment had wrongly enabled. On foot of this, she applied for judicial review of the legality of puberty-blocking treatment to children under the age of 18, whom she asserted could not consent based on the “misleading” advice given by the Tavistock clinic. This was heard in the first instance in the High Court.

High Court judgment

Firstly, the High Court ruled that there was nothing unlawful about the Tavistock advice on foot of which consent was obtained for PB treatment through the National Health Service. This was a central issue and, as the Court of Appeal would later remark, it is difficult to understand why the case was not dismissed here. How-

ever, from this point the Court embarked on a lengthy discussion of evidence about PBs and CSH, concluding that both are ‘experimental treatments’ with ‘life-changing’ consequences for transgender children. The High Court gave consideration to the principle enunciated in Gillick. The Gillick test permits children under 16 to consent to medical treatment without parental permission if they have “sufficient maturity and intelligence to understand that nature and implications of the proposed treatment” in the view of their clinician. Once this test is passed the individual is referred to be Gillick competent.

However, the Court sought to distinguish PB and CSH treatments on the grounds that the “profound” impacts carried “unclear” benefits and “long-term consequences to a material degree unknown [such that] Gillick competence cannot be achieved, however much information and supportive discussion is undertaken.” This was also justified by the Court’s conclusion that the PB/CSH treatments were conjunctive in the sense that a patient starting on PB almost always progressed onto CSH, a conclusion which the Court of Appeal would later contest. On this basis the Court appeared to advise clinicians that court order would always be appropriate for children under 16 to obtain access to PB and CSH. The Court’s concluding remarks pronounced that it was “highly unlikely” that a child under 13 and “doubtful” that a child under 15 could understand the treatment’s long-term effects on sexual function and fertility.

It is unclear why, if the Court was genuinely concerned that the impugned treatments were so profoundly unique so as to warrant distinction, they did not adapt the criteria laid down by Fraser LJ in Gillick for contraceptive treatment to PB and CSH treatment.

For example:

“the young person will understand the professional’s advice; cannot be persuaded to inform their parents; is likely to continue experiencing gender dysphoria with or without PB/CSH treatment; unless the young person receives PB/CSH treatment, their physical or mental health, or both, are likely to suffer; the young person’s best interests require them to receive PB/CSH treatment with or without parental consent.”

Court of Appeal

On appeal, the logical leaps and inappropriate medical conclusions drawn by the High Court were heavily criticised. The Court of Appeal first rejected the idea that PB/CSH treatments were “experimental”. It then clarified that there was nothing about the impugned treatments which differentiated it from Gillick so as to warrant supplemental guidance from the Court. Further, the Court reaffirmed that the purpose of Gillick competence is to instruct clinicians, not courts, on how best to evaluate a child’s ability to give consent, and reprimanded the Court for attempting to do so by issuing its guidance. The Court noted with approval the thorough procedure for obtaining consent carried out by Tavistock, noting further that the operators of the clinic were subject to NHS standards of procedure. The Court also noted the difficult position that the High Court decision had caused with respect to the provision of the NHS GIDS, and presumably had in mind to alleviate this as one of its aims when overturning the decision.

It is unclear at this point whether the claimants will appeal this case to the Supreme Court.

The consequences of the Appeal judgment

The Court of Appeal’s decision to overturn this decision was welcomed on a number of grounds.

The test of Gillick is now clearly addressed to doctors and clinicians. The Court of Appeal’s disapproval of judges making generalised pronouncements about what children are likely or unlikely to be able to appreciate at different ages was stark throughout the judgment. In rejecting these largely baseless conclusions, it firmly redrew the boundaries of expertise in this area of law, directing that only clinicians are in a position to carry out the test enunciated in Gillick. In many ways, this properly squares transgender healthcare for children as a

medical issue, not a legal debate.

Further, the decision of the Court of Appeal restores agency to transgender children with respect to their health and transition. The High Court had clearly misunderstood the underlying rationale of the Gillick competence test; The purpose of Gillick is to reflect the differences in maturity, intellectual capacity and precocity among children of the same age. The test permits clinicians to obtain consent from a child with respect to that individual child’s ability, and the Court of Appeal found no grounds to distinguish transgender healthcare treatments from this.

Suggesting without evidence, as the High Court did, that taking puberty-blockers puts children on a “virtually inexorable” path towards further treatment of an “entirely different territory” only served to contribute to the moral panic surrounding standard transgender healthcare. The High Court was clearly very influenced by the claimant’s experience and used it as a justification to universally restrict access to PBs and CSH for gender dysphoria, despite also hearing evidence from transgender people that the same treatments had been life- saving for them.

This case exemplifies the danger of courts usurping the role of clinical experts and imposing their own views of strongly politicised topics.

In the immediate aftermath of the High Court judgment, it was reported that the Tavistock cancelled appointments in its service and that the NHS ceased accepting referrals.

Conclusion

The sceptical tone underlying the entire High Court judgment can unfortunately be seen as demonstrative of wider attitudes to transgender issues in the United Kingdom. The European Commission has reported that the intrusive medical requirements still imposed by the UK Gender Recognition Act 2004 place it among the worst in the EU. Despite support for amendment, following a public consultation on the Act the government elected not to put forward any changes. Considering the already significant paucity of clinics like Tavistock, it is hoped that the appeal judgment in the Bell case provides an impetus for change in attitudes among the judiciary and the government in the United Kingdom.

Judicial review aims to review the decision-making process as opposed to the decision, at least in practice. However, the Bell case shows the difficulties still experienced by the senior courts in mapping the relationship between clinical expertise and legal rules.

Author’s Note: Anyone interested in the topic of transgender rights and equality in the United Kingdom and generally is encouraged to read The Transgender Issue by Shon Faye