Daily Mail 1 December 2020
Campaigners have celebrated a victory for ‘common sense’ as the High Court today ruled children under 16 are unlikely to be able to give ‘informed consent’ to take puberty blockers.
The ruling came after Keira Bell brought legal action against the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children.
Ms Bell, a 23-year-old woman who began taking puberty blockers when she was 16, was injected with testosterone at 17 and had a mastectomy aged 20, before ‘detransitioning’.
She claimed she was treated like a ‘guinea pig’ at the clinic, and said doctors failed to carry out a proper psychiatric assessment and should have challenged her more over her decision to transition to a male as a teenager.
The judges said in their ruling: ‘It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers.
‘It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.’
Speaking outside the Royal Courts of Justice this afternoon, Ms Bell said she was ‘delighted’ with the High Court’s ruling.
She said: ‘This judgment is not political, it’s about protecting vulnerable children. I’m delighted to see that common sense has prevailed.’
Though she is now in the process of transitioning back to a woman, she faces further legal hurdles because by law she is now a man, and may be infertile.
Her lawyers had argued that children going through puberty cannot properly consent to taking puberty blockers.
They said there was ‘a very high likelihood’ that children who start taking hormone blockers will later begin taking cross-sex hormones, which they say cause ‘irreversible changes’.
The Tavistock and Portman NHS Trust had argued that taking puberty blockers and later cross-sex hormones were entirely separate stages of treatment.
The trust argued that medical specialists in this field should be able to make calls based on their assessments and claimed it was ‘a radical proposal’ to suggest children did not have the capacity to give consent.
But judges today ruled that both treatments were, ‘two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it’.
This means doctors may now seek approval or support from the court before prescribing puberty-blocking drugs to children, to try and avoid liability.
The legal challenge was also brought by Mrs A, the mother of a 15-year-old autistic girl who is currently on the waiting list for treatment.
She fears her daughter will be fast-tracked for transgender medical treatment once she is seen by clinicians at the GIDS.
In the judgment today, Dame Victoria Sharp, sitting with Lord Justice Lewis and Mrs Justice Lieven, said that children under 16 needed to understand ‘the immediate and long-term consequences of the treatment’ to be able to consent to the use of puberty blockers.
The judges added: ‘It is said therefore the child needs only to understand the implications of taking puberty blockers alone … in our view this does not reflect the reality.
‘The evidence shows that the vast majority of children who take puberty blockers move on to take cross-sex hormones.’
Ms Bell and Mrs A’s solicitor Paul Conrathe said the ruling was ‘an historic judgment that protects children who suffer from gender dysphoria’.
He added: ‘Ultimately this case was decided on the facts that were known by the Tavistock.
‘Ironically – and as matter of serious concern – despite its international reputation for mental health work, this judgment powerfully shows that a culture of unreality has become embedded in the Tavistock.
‘This may have led to hundreds of children receiving this experimental treatment without their properly informed consent.’
The court ruled that, ‘in order for a child to be competent to give valid consent, the child would have to understand, retain and weigh’ a number of factors, including ‘the immediate consequences of the treatment in physical and psychological terms’.
The child would also need to understand that, ‘the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, a pathway to much greater medical interventions’.
The judges said in their ruling: ‘It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers.
‘It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.
‘In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment.
‘Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.’
Lui Asquith, from the trans children’s charity Mermaids, said the ruling was a ‘devastating blow’, adding: ‘Every young person has the right to make their own decisions about their body and that should not differ because somebody is trans.’
Lui claimed the court was, ‘treating trans young people differently to every other child in the country.’
Nancy Kelley, Stonewall’s chief executive, added: ‘Today’s court ruling about the prescription of puberty blockers is both deeply concerning and shocking. We’re worried this judgment will have a significant chilling effect on young trans people’s ability to access timely medical support.’
The court refused the Tavistock and Portman NHS Trust’s application for permission to appeal against the ruling and gave the Trust until December 22 to apply directly to the Court of Appeal.
Speaking before today’s ruling, Ms Bell said: ‘I made a brash decision as a teenager, as a lot of teenagers do, trying to find confidence and happiness, except now the rest of my life will be negatively affected.
‘Transition was a very temporary, superficial fix for a very complex identity issue.’
In a statement after the ruling, a spokesman said the Tavistock and Portman NHS Trust was ‘disappointed by today’s judgment’.
The spokesman added: ‘We understand that the outcome is likely to cause anxiety for patients and their families.
‘Our first duty is to our patients, particularly those currently receiving hormone blocking treatment, and we are working with our partners, University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospitals NHS Trust, to provide support for patients concerned about the impact on their care.’
The spokesman also confirmed that the trust would seek permission to appeal against the judgment.
Sarah Williams, Legal Director at law firm Payne Hicks Beach said the ruling, ‘shone the light on a murky area of the law.’
She added: ‘This ruling provides much needed clarity on the capacity of a child to provide valid consent to innovative and experimental medical treatments which could result in infertility or impaired sexual function.
‘For children aged 16 and above, there is a legal presumption that they have the ability to consent to treatment; the court’s finding that children under 16 are unlikely to be capable of giving valid consent is likely to mean clinicians should seek authorisation from the courts prior to commencing clinical treatment. This will provide a welcome safeguard.’
But Lui Asquith, from the trans children’s charity Mermaids, said: ‘This morning’s judgment has been an absolutely devastating blow for trans young people across the country.
‘We believe that we’re entering a new era of discrimination, frankly.
‘We see day in, day out at Mermaids the positive impact hormone blockers can have on some trans young people – in all honesty, they can save lives.
‘They allow some young people to be able to go outside, engage in society, go to school, and we’re now in a position whereby those young people are not necessarily going to be able to access it.
‘We’re entering a new era of experimentation, that experiment being what happens to trans young people who need hormone blockers who can’t get them.’
READ MORE: https://www.dailymail.co.uk/news/article-9005007/High-Court-rules-puberty-blockers-transgender-clinics-landmark-case.html