A decision in December 2020 Bell v Tavistock and Portman NHE Foundation Trust & Ors [2020] EWHC 3274 (Admin), available online, gained considerable attention in England and elsewhere when addressing the legal requirements for consent by minors and or court approval for gender dysphoria treatment. Apparently the hearing of an appeal from that decision will begin on 23 June 2021.
Dr Cristina Pelkas has kindly drawn attention to a further decision addressing similar issues: AB v CD & Ors [2021] EWHC 741 (Fam) (26 March 2021) available on BAILII.
In the more recent decision, the issue in broad terms is whether the parents of a minor XY (aged 15) can consent to the treatment of XY with puberty blockers or whether the decision as to whether XY should be prescribed puberty blockers should come before the Court, either as a matter of legal requirement or as a matter of good practice.(at [1]).
As noted at [49], the first issue was whether the parents have a continuing right to consent even if XY is Gillick competent. This was referred to by the parties as the parents having a “concurrent right to consent”. In that regard the Court held at [68]:
However, in the present case, the parent and the child are in agreement. Therefore, the issue here is whether the parents’ ability to consent disappears once the child achieves Gillick competence in respect of the specific decision even where both the parents and child agree. In my view it does not. The parents retain parental responsibility in law and the rights and duties that go with that. One of those duties is to make a decision as to consent in medical treatment cases where the child cannot do so. The parent cannot use that right to “trump” the child’s decision, so much follows from Gillick, but if the child fails to make a decision then the parent’s ability to do so continues. At the heart of the issue is that the parents’ “right” to consent is always for the purpose of ensuring the child’s best interests. If the child does not, for whatever reason, make the relevant decision then the parents continue to have the responsibility (and thus the right) to give valid consent.
The second issue was whether there is a special category of medical treatment for puberty blockers where either there is a common law rule that cases must be brought to Court for the Court to make the decision or, as a matter of good practice, such cases should be brought before the Court. The Court noted at [97] that the child is not facing a terminal illness, and the treatment has life-changing and life-long consequences, the implications of which are not fully understood, before going on to consider some Australian cases on this issue.
The Court expressed some concerns about puberty blocker treatment consent by parents, saying at [122] – [123]:
The use of PBs for children with Gender Dysphoria raises unique and highly controversial ethical issues. The division of clinical and ethical views has become highly polarised. I have read the evidence of Professor Graham who refers to the studies supporting their use, but those studies themselves come from a very small group of institutions and it is not possible for me to assess the degree to which they have been peer reviewed or attract a consensus of support amongst the clinical and academic community…….The taking of strong, and perhaps fixed, positions as to the appropriateness of the use of PBs may make it difficult for a parent to be given a truly independent second opinion. However, in my view this is a matter for the various regulatory bodies, NHS England and the Care Quality Commission, to address when imposing standards and good practice on the Second and Third Respondents. (Tavistock & Univesity College London).
However the Court ultimately concluded at [121]:
The gravity of the decision to consent to PBs (puberty blockers) is very great, but it is no more enormous than consenting to a child being allowed to die. Equally, the essentially experimental nature of PBs should give any parent pause for thought, but parents can and do routinely consent on their child’s behalf to experimental treatment, sometimes with considerable, including life-changing, potential side-effects.
Notwithstanding the above, if the clinicians, or indeed any one of them, is concerned that the parents are being pressured to give consent, then I have no doubt such a case should be brought to Court (at [127]). The same should apply if there is disagreement between the clinicians (at [128]).