Case Comment and Update: R (Quincy) Bell v The Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)

Context

Gender dysphoria (GD) is defined by the NHS as a condition in which a person may have a ‘sense of unease because of a mismatch between their biological sex and their gender identity.’ Such a person has a strong desire to live according to their perceived identity rather than their biological one. This unease is such that it can lead to depression and anxiety and have a harmful impact on daily life.

Those with GD may be referred to the Gender Identity Development Service (GIDS) which is a one of a kind, specialist service hosted via the Tavistock and Portman NHS Foundation Trust (the Tavistock). They in turn can further refer those experiencing gender dysphoria to one of two NHS Trusts (University College London Hospitals (UCL) and Leeds Teaching Hospitals (Leeds)) whose clinicians may be prepared to undertake medical interventions. 

The treatment can include the administration of gonadotropin-releasing hormone agonists (GnRHa) which are hormone or puberty blocking drugs (PBs). These are used to suppress physical developments that would otherwise occur during puberty.

The Case

This case is a claim for judicial review of the practice of the defendant, the Tavistock through GIDS, of prescribing puberty-suppressing drugs to persons under the age of 18 who experience GD.

There are two claimants: Keira (Quincy) Bell a 23 year old who began her transition at age 16 when she started taking PBs and a Mrs A the parent of a young person receiving treatment at GIDS.

UCL and Leeds intervened.

The issue at the heart of the case was whether children and young persons experiencing GD could give ‘informed consent in the legal sense’ to the administration of PBs.

The claimants’ case was that: persons under 18 are not capable of giving consent to the administration of PBs; that the information they are given is misleading and insufficient to facilitate informed consent; that there are insufficient safeguards; and that the combination results in an infringement under Article 8 of the ECHR.

The defendant, submitting details of procedure and information, argued that the process at GIDS, involving numerous and frequent consultations, discussions and the provision of age appropriate information, was Montgomery compliant in that it satisfied the requirements of informed consent as set out by the Supreme Court in Montgomery v Lanarkshire Health Board [2015] AC 143. They additionally contended that for those not initially Gillick competent the process allowed time to see if their understanding developed to be as such. For those aged 16 and above the defendant’s position was that, if the parents and clinicians were agreed then there was no justiciable issue and that the court had no jurisdiction.

The Judgment

The judgment was delivered on 1 December 2020.

The judges started by considering the nature of the treatment in question and concluded that it is experimental, there is a lack of evidence as to its efficacy, that the purpose is unclear and finally that its consequences are highly complex and potentially lifelong and life changing in the most fundamental way to the extent that they considered it as a ‘unique’ [134] medical treatment. They went a step further and determined that since the majority of those who commence PBs continue to take cross-sex hormones, for a young person to really consent they would have to be understand the implications of cross-sex hormones as well.

At paragraph 138 the judges list the information a child or a young person would have to understand, weigh up and retain in order to be found Gillick competent:

1. the immediate consequences of the treatment in physical and psychological terms; 
2. the fact that the vast majority of patients taking PBs go on to CSH and therefore that s/he is on a pathway to much greater medical interventions; 
3. the relationship between taking CSH and subsequent surgery, with the implications of such surgery; 
4. the fact that CSH may well lead to a loss of fertility; 
5. the impact of CSH on sexual function; 
6. the impact that taking this step on this treatment pathway may have on future and life-long relationships; 
7. the unknown physical consequences of taking PBs; and 
8. the fact that the evidence base for this treatment is as yet highly uncertain.

The judges appear to dismiss the defendant’s position regarding procedure and the provision of age appropriate information to facilitate consent as simply giving the child ‘more and more detailed, information.’ [144].

The judgment addressed those under 16 and those aged 16 and above.

In general terms it was held that persons under 16 may only consent to the use of PBs where s/he is competent to understand the nature of the treatment including the ‘immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child.’ Further it was held that understanding and weighing up this information and deciding whether to consent to the use of PBs for those under 16 would present ‘enormous difficulties’.

For those under 13 it was held ‘highly unlikely’ that they would be competent to give consent to the use of PBs. For those under 14 or 15 it was ‘doubtful’ that they could understand and weigh the long-term risks and consequences of using PBs.

In respect of those aged 16 and over the judges caveated the recognised legal position that there is a presumption of the ability of those within this age group to consent to medical treatment by stating that considering nature of the treatment and its uniqueness, involved clinicians should seek the authorisation of the court prior to commencing treatment.

Effects – Practical and Legal

The immediate effect on trans children and young persons was that the NHS amended its Service Specification for GIDS such that under 16s seeking PBs are now subject to a court application for a ‘best interest order’. Under 16s already on treatment will be reviewed by their lead clinician in order to assess whether to stop the treatment or consider a ‘best interest order’. For those aged 16 and above receiving hormonal treatment the clinician is required to review each case and consider a best interest order if there is any concern about the person’s best interest.

Whilst this case was specifically with reference to GIDS it will have implications for private clinics that administer similar treatments. It is therefore likely that they will also have to undertake equivalent clinical reviews assessing the patient’s best interest.

The judgment of 1 December is silent on the issue of parental consent in cases where the child is not Gillick competent. The consequent gap is exacerbated by that fact that the Tavistock service specification particularly states that parents cannot consent and it the child who has to be competent to consent. 

As far as recourse to remedies is concerned, to access PBs parties can take either the inherent jurisdiction route to the High Court seeking a best interest decision or the specific issue order route most likely also to the High Court where the court would be guided by the welfare checklist and the paramountcy of the child’s welfare.

The Appeal

The Tavistock applied to the trial judges for permission to appeal but it was denied on the basis that the grounds had no prospect of success and there was no other compelling reason why the appeal should be heard. However the order was stayed until 22 December 2020 to allow parties to seek permission to appeal from the Court of Appeal which was granted on 19 January 2021. 

The matter was before the court again on 29 January 2021 where in addition to UCL and Leeds the following parties were given permission to intervene. Transgender Trend will give both oral and written evidence. Gendered Intelligence, The Endocrine Society and Brook jointly, Dr Bell and The Association of Lawyers for Children will give written evidence only.

Liberty and the British Medical Association were permitted to apply by 12 February. Decisions will be taken at the next hearing about their application to intervene. The court has also been invited to consider and make directions regarding the issue of parental consent. 

The stay continues until the appeal is heard. The initial indication was that it would not be listed until March 2022 but there has been some movement and it may well be set this summer 2021.

Amina Gillani