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It is now two weeks since the High Court ruled that parents could consent on their child’s behalf to Puberty Blockers, but still NHSE hasn’t changed its guidance to reflect the law.
It is an extraordinary state of affairs for NHS England to be out of kilter with a High Court ruling for such a period of time, especially when we’re dealing with young people already suffering the impact of previous harmful decisions. Decisions which were, if you recall, enacted with blistering rapidity.
On 2 December 2020, within several hours of the Bell v Tavistock judgment, NHS England published an altered Service Specification on how the judgment should be implemented. This decision caused huge distress to trans young people and families, not least because it was implemented so quickly and with no mental or emotional support for those relying on GIDS services. They weren’t even warned the guidance was changing and nothing was put in place to offer reassurance or information. The ‘Bell’ ruling stated that all patients under the age of 16 would have to be assessed by the court to see if puberty blocking medication was in their ‘best interests’.
Then on 26 March 2021, one of the judges in the Bell v Tavistock case ruled in the High Court (the same level of court as the Bell v Tavistock case but dealing with family law), that parents can in fact consent to their children being prescribed puberty blockers without needing to go to court, and that puberty blockers are not a ‘special category of treatment’ which has to be authorised by a court order.
As we stated on the 26 March, this new significant judgment will only have a practical impact on access to puberty blockers once NHS England has changed its Service Specification to reflect what has now been confirmed to be the correct legal position. In the two weeks following this judgment, they have not done so.
“When the initial Keira Bell High Court Ruling came into play it was hard for us as a family to navigate. The way NHSE reacted was instantaneous, and yet now after another ruling, nothing has changed.”
Anonymous parent of a transgender child
We were informed on Wednesday evening by NHS England that its position will be provided ‘no later than the end of the week commencing 12 April 2021’. We have a growing concern around the seeming disparity in approach by NHSE when comparing its immediate action following Bell (with regard to its updating guidance the same day) and this latest judgment. We acknowledge that NHSE did not receive sight of the judgment until the 26 March and a period of time to organise internal policy should be expected. However, the handling of this complex situation continues to cause considerable distress and we call on NHSE to fulfil its duty of care to its young and vulnerable patients.
A final deadline of 18 April 2021 has been given and we will be holding NHS England to account should this not be met.
“My young person and I are feeling incredibly frustrated. It’s already a long and difficult process to get access to blockers and to have further roadblocks put in the way is so disheartening. The lack of guidance, and empathy, from GIDS is concerning. If they don’t know what this latest High Court ruling means, how are we meant to navigate it? We are already facing a delay because of last year’s change. Why is there no urgency on the part of NHS England to update this guidance so that it is clearer for clinicians and patients? My child’s day to day life is already so impacted by this, now it’s being impacted further by the confusion, and a lack of guidance and support from those who should be in the know.”
Anonymous parent of a transgender child
We must, once again, call again on NHS England to immediately revise its guidance to reflect that there is no need for a best interests court order in cases where there is parental consent (irrespective of the outcome of the forthcoming hearing in the Court of Appeal aimed at overturning the Bell decision on the child’s capacity to consent). There is no legal reason why clinically-recommended treatment should not proceed on the NHS in cases where parent’s consent and we look forward to updated guidance which brings the NHSE’s guidance in line with this.