KB V TAVISTOCK AND PORTMAN TRUST, Dec 1st, 2020

Analysis by the Mermaids Legal and Policy Unit

This blog post is now out of date. Please see this link for the latest information.

Important Update

Further to the High Court decision on 1 December 2020, NHS England published amendments to its Service Specification for Gender Identity Development Services for Children and Adolescents. This is a short but concerning document that we would encourage all viewers to read themselves.

We have also published a Q&A with an aim to bring together the High Court judgment and the Specification amendments. Please note that we are working hard to clarify certain aspects of what future pathways at the Tavistock will look like. As a broad summary:

We’re getting a clearer picture of what the impact will be on those under 16 and indeed those who are 16 and 17, who wish to start hormone blockers and supported by their parents and clinical team. According to the latest GIDS amendment, people seeking hormone-blocking treatment under 16 will be subject to a court application for a ‘best interest order’. Under 16s already on hormone blockers will be reviewed by their lead clinician on a date currently unknown and either a ‘best interest order’ will be applied for or they will be withdrawn from treatment. For 16 and 17-year-olds on hormone blockers and/or cross-sex hormones, lead clinicians will be required to review each case and if there is ‘doubt’ about the young person’s best interests, they will have to consider a ‘best interest order’.

THAT’S WHAT THE NHS IS SAYING, BUT WHAT DID THE HIGH COURT RULE ON DEC 1ST, 2020?:

• The court stated that in order for a child under 16 to consent to puberty blockers to treat gender dysphoria they must understand the implications of the puberty blockers as well as cross-sex hormones as puberty blockers usually lead to taking cross-sex hormones. They must understand:
  • The immediate consequences of both treatments, physically and psychologically;
  • That the vast majority of patients on puberty blockers take cross sex hormones and then further medical interventions in the future such as surgery;
  • The loss of fertility;
  • The impact on sexual function;
  • The impact on future relationships;
  • That the physical consequences of taking puberty blockers are unknown;
  • That the evidence base for treatment is highly uncertain.
• The court stated it is ‘difficult’ for a 16 year old to understand and weigh up the above. 
• The court stated that for many children, no matter how much information they are given as to the long term consequences, they will not be able to weigh up implications of treatment to a sufficient degree to acquire ‘informed consent’.
• Specifically, the court stated that it is ‘highly unlikely’ that a child aged 13 or under would ever be Gillick competent to give informed consent to puberty blockers and that it is ‘very doubtful’  that children aged 14 and 15 could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding.
• Those 16 and over are assumed to be Gillick competent as long as they have mental capacity and clinicians consider it to be in their best interests. However, if there is ‘any doubt’ whether the long term best interests of a 16/17 year old would be served by puberty blockers, then it would be appropriate for clinicians to involve court.
• The judgment regarded puberty blockers as being ‘innovative’ and ‘experimental’ and that clinicians may therefore ‘regard these as cases where the authorisation of the court should be sought before starting treatment with puberty blocking drugs’.  
• The court has said the alleviation of considerable psychological distress of those with gender dysphoria would not necessarily outweigh the long-term effects of treatment.
• The court acknowledged that the ‘increased maturity of the child means that there is more possibility of achieving competence’.

Read the Summary Judgment HERE 

Read the Full Judgment HERE. 

INITIAL ANALYSIS (Latest analysis at the top of article, including latest from NHS England)

We understand that many of our young people and their families will be feeling uncertain following the judgment published today by the High Court. We are not here to unnecessarily contribute to any anxiety that may have been caused by the decision today, but we do want to give you a clear and realistic reflection on what this decision may mean for trans young people in England and Wales. 

Put simply, the purpose of this case was to ascertain whether under-18s can give informed consent to puberty blockers and what, if any, involvement the court should have in a decision making process around prescribing hormone blockers to under 18s. 

In short, the court has decided that clinicians should deviate from its usual approach with regard to consent and under 16s (which is that they may have the competence to make decisions for themselves).

In contrast to the legal principle of Gillick competence, the court has decided that when clinicians are considering hormone-blocking treatment, that as a default position they should assume that a person under 16 will be unlikely to consent to them. Parental consent in itself is also not enough. Within the judgment, the Court stated that a young persons’ autonomy should be outweighed, and the court would be best-placed to determine what the child’s best interests are, stating “we consider this treatment to be one where the protective role of the court is appropriate.” 

It is our opinion that this judgment has failed to affirm those under the age of 16’s ability to consent to gender-affirmative medical treatment and has in turn undermined young people’s right to bodily autonomy, specifically here trans young people. 

The court today has decided that trans young people should be treated differently. This is concerning in itself because if you start treating minority groups differently, it not only impacts that population of people, but risks opening the floodgates to broader discrimination within the health system and beyond. 

Mermaids firmly believes that competent young people should have the right to make decisions around their own bodies with the guidance and support of NHS clinicians.This right of course should always be balanced within the context of one’s capacity and maturity – something clinicians do every day based on principles that are decades old. We believe that this decision is a betrayal of those rights. 

Hormone blockers have been widely researched for three decades, it is an internationally-recognised treatment which has had a hugely positive impact on many young trans people. We see this first hand at the charity every day. This judgment risks denying those young people who require such support from accessing it in a timely manner, or even at all. 

The right to make decisions about your own body should not be applied differently because someone is part of a minority group. However here,  the Court seems to have raised the threshold for Gillick competency, specifically for trans and gender-diverse young people, rather than for all young people. 

We believe this judgment will be seen by future generations as a moment of betrayal of trans, including non-binary and gender-diverse young people. Mermaids will continue to support trans, non-binary and gender-diverse young people, and their wider families, as we have been doing for the past 25 years, to create a world where our young can be themselves, and thrive.