We welcome today’s High Court Family Division ruling that parents can 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. This is welcome news for those fearing the Keira Bell ruling would prevent them from accessing ‘puberty blockers’.
“We feel a huge amount of relief having heard this news. My youngest is 12 and we were told just before Christmas that she would have access to blockers after a 6-year-wait, only to have that taken away. It was so cruel. We sat in tears after the Keira Bell ruling. The thought of putting my child through a court case to get access to thinking time with puberty blockers was so concerning.” – Sarah, mother of a 12-year-old trans girl.
In the wake of the Bell judgment, this decision carves out a way for under 16s with supportive parents to access vital medical intervention. Up to now, GIDS have only used a child consent pathway in relation to accessing puberty blockers, which was effectively blocked by the Bell v Tavistock decision (which ruled that children were not legally able to consent to puberty blocking treatment for themselves). Today’s court ruling establishes that, even if children cannot give legal consent, their parents can do so on their behalf. We’ve heard first-hand the confusion and distress the Bell decision has caused and we know the relief this will bring many families around the country.
To be clear, the court has decided that there is no obligation for families or clinicians to apply to court to authorise the prescription of puberty blockers, if parents or carers have given legally valid consent to treatment. As with any other medical treatment, that is the case unless there is a dispute between parents or a concern by the clinician that the parents are not able to give free and informed consent themselves. This will only affect a tiny minority of cases.
“It’s a really good outcome. It’s reinforcing the right to bodily autonomy. Trans young people are having their rights completely ignored. I’ll be watching closely to see what NHS England does to update its guidance so it reflects the latest legal judgment.” – Parent of a 15-year-old trans young person.
CALLING FOR ACTION FROM NHS ENGLAND
We hope to see this court ruling promptly reflected in updated NHSE guidance.
The Court has confirmed that the administration of puberty blockers is lawful without a best interests court order (as long as there is parental consent). Importantly, this judgment will only have an impact on access to puberty blockers in practice once the NHS has changed its Service Specification to reflect what has now been confirmed to be the correct legal position.
“I’m so happy with the outcome today. It is right that I am able to make decisions about my body and my healthcare. It’s my life, my body and my choice.” – Ashlynn, 15
We now call 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).
As a result of today’s ruling there is no legal reason why clinically-recommended treatment should not proceed on the NHS in cases where parents consent and we look forward to updated guidance which brings the NHSE’s guidance in line with this.
“This is a huge relief because our daughter is 16 in June and this means her rights and our rights are still recognised. I could have cried when I saw the judgment and it gives me hope that NHS England will change their guidance straight away.’ – London, father of a 16-year-old trans young person
Mermaids believes in the right to timely and accessible healthcare for all young people. We also believe in the value of bodily autonomy. These values must not be applied differently because someone is transgender. At the core of this judgment is a ruling that puberty blocking treatment should not be treated any differently to any other form of medical treatment for children, where informed parents routinely make complex decisions on behalf of their children. We see this judgement as an important step in the right direction, but more must be done to ensure that transgender children are able to access healthcare.
“I’m lost for words, it’s just a fair decision and places the decision here around those who know the child best: the child themselves, the clinicians and the family. If we’re all in agreement, the courts aren’t necessary so we’re delighted and hope NHSE will follow the ruling with their guidance.” – Mum of 12-year-old daughter
What has the AB and CD case decided?
The High Court has confirmed that parental consent is valid in relation to the administration of ‘puberty blockers’. The court has also confirmed that if there is parental consent then there is no obligation to apply for court authorisation unless there is a concern by the clinician that the parent(s) are under too much pressure from the child to consent to treatment or if the clinician has some ethical concerns in relation to the provision of treatment. We anticipate that this will only affect a tiny minority of cases.
How does this relate to the Bell v Tavistock case?
The Bell v Tavistock case concerned identifying the circumstances in which a child was competent as a matter of law to give valid consent to treatment. The Bell case did not answer whether parents as a matter of law could consent on behalf of their children – the AB and CD case was asking the court to answer this. This case therefore is related to Bell, but distinct.
What does this mean for families?
We will be contacting NHSE to ask if it will be updating the Service Specification further to the decision and specifically asking NHSE to reflect the decision through an introduction of an alternative parental consent pathway at GIDS. The High court has made clear that this approach is a lawful approach to consent.
If NHSE changes its approach to consent in light of this case, logic follows that young people clinically recommended for puberty blockers, with parental support would be able to access puberty blockers without the need to apply to court for approval.
GIDS have updated its website with the following Guidance.