Updates from Day 2 of the Appeal.
You can watch the last two days on YouTube here.
What the Claimant said (Bell and Mrs A):
The claimant said that the process around the assessment of the child’s capacity to consent was not sufficient. Therefore, the claimant argued that the policy and practice permitted or encouraged illegality. If the policy or practice that is followed would lead to unlawful facts or decisions then that policy or practice would be unlawful.
The claimant went through GIDS guidance on obtaining consent and the process of assessing capacity. It stated that the standard operating procedure of the Tavistock was insufficient because it does not reflect that of the NHS Service Specification. The claimant argued that the list of matters that needed to be understood by the first court was correct.
The claimant went through the evidence presented by the Tavistock to draw a link between puberty blocking treatment and cross-sex hormone therapy. It detailed a study around early intervention that stated that no child withdraws from treatment once starting puberty blockers.
The claimant then stated that puberty blockers have a lack of evidence base and are experimental. It referenced a study that said blockers might make gender dysphoria more persistent and that they have an effect on bone density. The claimant stated there was a lack of information on long term effects.
The claimants argued that the Endocrine Society’s guidance around treatment is not supported with evidence, and therefore act as weak recommendations rather than best practice.
The claimant claimed that puberty blockers and cross-sex hormones are not covered enough in current materials given to children to inform their consent with the impact on sexual function only partially covered and the impact on relationships being absent.
The claimant discussed why it believes the High Court was right to give guidance as the nature of treatment is one where there is uncertainty over the long-term consequences. It stated the evidence is categorised as not persuasive and it is not clear what the blockers are looking to achieve.
The claimants argue that as the Human Rights Act 1998 applies to all children regardless of gender identity, it is not directly discriminatory to require those trans young people who wish to go through puberty blocking treatment to go through the courts to do so. The claimants further argue that indirect discrimination under the Equality Act 2010 can be justified if it is found to be a proportionate means of achieving a legitimate aim, in which case it is not indirectly discriminatory for permission to be obtained via the court.
What the Interveners said (UCLH and Leeds):
The interveners stated that they prescribe following a referral from the Tavistock Centre but the decision to prescribe is taken by a paediatric endocrinologist. They stated that the documents in the standard operating procedure relate to the Tavistock Centre and are no more than a referral to the NHS trusts. The patients are then tested and psychiatrically evaluated. The standard operating procedure under challenge does not deal with prescription because the Tavistock Centre does not prescribe. The NHS trusts’ documents were found to be appropriate. CQC reports of UCLH and Leeds around competency gave a positive assessment of procedures and practice.
The interveners argued that the autonomy of the patient is important in respect of this highly personal treatment as there are medical factors but also personal factors involved.
They stated that Endocrine Society guidance shows the median age of those starting puberty blockers is 14 and for cross-sex hormones that is 17. Of the 158 referred to UCLH, 28 began treatment and stopped part way through, so they argued that puberty blockers do not necessarily mean cross-sex hormones in the future.
What the Interveners said (Transgender Trend):
The interveners stated that the court can use their discretion to give guidance when necessary and that it had been necessary in this case. They stated that doctors when assessing competence should take into account factors that might become important for the child in the future such as sexual function, not just factors that are important for them now.
They then highlighted a number of factual issues they found concerning. The children are vulnerable as they have gender dysphoria which causes distress and is associated with other mental health disorders and this impacts their decision making process.
The interveners stated that the ability to obtain treatment privately is concerning outside of the NHS system and that the judgment in the first instance sets out guidance for them as well.
They were concerned that the Tavistock Centre had never contemplated seeking an order of court in those that lacked capacity to consent and there was a lack of data in relation to referrals who had autism or mental illnesses as well as the movement of patients from puberty blockers to cross-sex hormones.
Their concern was that the law to obtain consent is not being properly applied in context of these concerning factual matters.
What The Defendant said (Tavistock):
The defendant then responded to a number of points raised today. They argued that a child with a particular condition will have particular regard to their own circumstances, so children with gender dysphoria can consent. They also said that the procedural error in allowing expert evidence from Bell had impacted the judgment at first instance.
We are not sure when the judgment will be released but we will update this blog as soon as we get it.
To hear our thoughts on the Bell v Tavistock Appeal, you can find our statement here.
Legal Strategy Coordinator, Alex Woolhouse, shares updates from Day 1 of the Appeal.
We attended court today virtually – the case is being live streamed on YouTube here.
What the Defendant Said (The Tavistock and Portman NHS Foundation Trust):
The defendant firstly set out their eight grounds of appeal:
- That the court wrongly applied the Gillick test and restricted it because the central issue is whether or not an individual child can understand and consent, rather than whether it would be possible to consent to something in the abstract.
- That the court wrongly applied the Mental Capacity Act because any conditions that need to be set out for someone to consent to medical treatment should be created by doctors, not judges.
- This meant the judgment was incompatible with the Family Law Reform Act because the presumption of young people having capacity was undermined.
- The Court wrongly relied on expert evidence from Bell that should not have been used because it wasn’t applied for and wasn’t impartial.
- That Bell’s evidence, if it conflicted with the Tavistock Clinic’s evidence, should not have been used.
- These errors meant that puberty blockers were seen as ‘experimental’ which is not the case.
- These errors also led to the judgment making an unnecessary link between puberty blockers and cross-sex hormones.
- That the judgment went against the Human Rights Act.
The defendant then took the court through the NHS Service Specification that guides practitioners when dealing with puberty blocking medication to treat gender dysphoria. They highlighted that the Service Specification is in line with emerging evidence of best practice from national and international guidelines such as WPATH and the Endocrine Society.
The defendant stressed that the criteria for referral is based on the developmental age of the child in terms of puberty, rather than age.
WPATH guidance makes a clear distinction between the three stages of treatment: puberty blockers, which they state are fully reversible, cross-sex hormones which are partially reversible and then surgery.
The defendant reminded the court that the NHS Service Specification states that the treatment is used so the child can explore their gender identity without fear of puberty progressing. The outcomes stated by the NHS Service Specification were that puberty blockers prevent premature death and reduce stress.
When discussing informed consent, the defendant explained that the process is created so the child and family can fully understand the possible consequences of the treatment and that age alone does not determine the capacity to consent however special care is taken for those under 16. Therefore, the decision to treat is undertaken by the combined weight of the child, the parents, the Tavistock Centre and the Endocrinology specialist.
The Endocrine Society guidance then reiterated the reasons for prescribing puberty blockers. The guidance acknowledges there are possible side effects, but still recommends puberty blocking treatment, as evidence states that young people’s psychological functions are improved.
The defendant moved on to discuss the Evidence Reviews published by NICE which confirmed the reasons for the use of puberty blockers and their positive effects.
The Court heard expert evidence from a psychologist on behalf of the defendant. The psychologist explained that young people understand the implications of puberty blockers and can therefore give informed consent to such treatment. The defendant also raised clinical evidence that puberty blockers are fully reversible from a reproductive perspective. They also explained that puberty blocking treatment is not experimental as it is 30 years old.
Dr Alvi’s statement presented to the court by the defendant explains how off-license use of puberty blockers is not uncommon and is used to treat many different conditions. Rather, Dr Alvi discusses that to not prescribe puberty blockers would be to do harm. Dr Alvi, who works for UCLH who follows the same service specification as discussed, explained that their sole purpose is to help those distressed, clear-minded young people.
The defendant then told the court about the changes to the NHS England Service Specification as a result of Bell and AB v CD. These can be found here.
The defendant then took the court through an explanation of the relevant law and cases that support the rights of children and parents to consent to medical treatment and highlighted the need to treat every individual according to their own maturity.
They finished with asking for a return to the legal position before the first judgment and stated that existing ways to govern the process of referring for puberty blockers are sufficient without the court intervening.
What the Claimant Said (Bell and Mrs A):
The claimant then responded to some of the points raised today. They firstly confirmed that the issue of the judicial review is around the lawfulness of referring children who are under 16 for puberty blockers and this referral not being in-depth enough so that the child can understand the implications of the puberty blockers enough to consent to them.
The claimant then went through the reasons they agreed with the court in the first judgment – that the child would have to understand certain factors in order to validly consent to puberty blockers, and the court had struck the right balance between the autonomy and best interests of the child.
The claimant reiterated that they thought puberty blockers were experimental because there was an absence of clear evidence of their effectiveness.
In respect of expert evidence, they disagreed with the defendants that the evidence was relied on by the judges and that they would have needed to apply for it to be included.
The court will reconvene on 24 June 2021 at 10.30am.
To hear our thoughts on the Bell v Tavistock Appeal, you can find our statement here.