Keep up to date with analysis on this landmark case for youth access to trans healthcare.
BRIEFING: SCROLL DOWN FOR THE LATEST PROCEEDINGS IN DETAIL FROM MERMAIDS DIRECTOR OF LEGAL, LUI ASQUITH
WHAT IS A JUDICIAL REVIEW? Lui Asquith, Mermaids Director of legal & Policy, explains: A judicial review is a way for people to seek a remedy if they’ve been affected by a public body’s decision, action or failure to act. Anyone can apply to the High Court, which may provide a remedy if it decides that the authority has acted unlawfully. The case is being brought by Keira Bell and a ‘Mrs A’. The public authority in question is the Tavistock and Portman NHS Foundation Trust which runs GIDS, the only youth gender clinic in England and Wales. The case being heard relates to the Trust’s decision to allow some young people under 18 to consent to certain healthcare treatments, namely hormone blockers.
This ‘judicial review’, being heard at the High Court over two days will hear from the claimants: an anonymous parent titled ‘Mrs A’ and Keira Bell, a woman who has spoken widely about her regret having undergone treatment via the Tavistock service. The claimants state that young people are unable to give informed consent for medical treatments relating to their gender. The case is being brought against the Tavistock and Portman NHS Foundation Trust which runs GIDS.
WHAT DOES MERMAIDS SAY?
This two-day case causes concern for our charity, young people, families, women’s rights groups and anyone who believes in the rights of young people to have control over their own bodies. Put simply, the case threatens to undermine a principle known as ‘Gillick Competence’ which empowers young people in certain circumstances to make choices about their own bodies. This important legal principle has been around since the 1980s and has given young people the right to make decisions around their own bodies once they are deemed ‘competent’ by medical experts.
If this case were successful, it would prevent trans young people from being able to make their own medical choices (advised by NHS clinicians), heralding a new era of minority discrimination in England and Wales. It would treat trans young people and their rights differently from their peers, simply because they are trans.
The case also threatens to shake the foundation upon which the rights of all young people are based, to make their own medical decisions, including young people seeking birth control and abortions. READ MORE.
The case is being brought against the NHS’s only clinic serving young gender-questioning and gender-diverse people in England and Wales: the Tavistock and Portman NHS Foundation Trust’s Gender Identity Development Service. The service’s hard-working but under-resourced staff work tirelessly in the face of persistent hostility.
Balancing children’s rights with the responsibility to keep them safe from harm must be a process that is driven by an understanding of transgender lives and an acceptance, in worldwide best practice, that trans children and young people exist and must be supported.
Mermaids believes in the right to freedom of choice and the right of bodily autonomy. These values must not be applied differently because someone has a protected characteristic.
We take this moment to offer Keira Bell and her fellow claimants our understanding and acknowledgement, in spite of our serious concerns regarding the case. We support gender-diverse people, no matter their journey.Lui Asquith, (they/them) Mermaids Director of Legaland policy
We thank the UK’s largest children’s charities today, for stating their support for trans children and young people.
What does Mermaids say about ‘detransitioning’?
At Mermaids, we support children and young people, no matter the journey they take. That includes those who may choose to ‘detransition’, though our 25 years of experience would imply such cases are rare.
Research shows that less than 1% of patients ‘detransition’. One report found of 3,398 trans patients who’d accessed NHS support, 16 expressed regret, and only 3 made a long-term detransition.
There are many reasons why an individual may choose to move away from a particular trans identity. We know some find transitioning too difficult because of the hostility they face at home, at work, online and in modern society generally. There will also be others who are still coming to understand their gender identity. In some cases, a small proportion of people may find that they no longer identify as transgender. Those wishing to ‘detransition’ are deserving of respect, support and dignity and we are here to support them, without judgement. Still, it is important to remember that a great many trans people do not follow a medical route and the overwhelming majority of those who do transition, will remain happily in their true gender identity. We are concerned that cases such as this are designed not to empower young gender-questioning people, but to prevent the vast majority of them from having equal and open access to healthcare. We are also concerned that undermining Gillick Competence for trans young people will undermine the principle for all young people including young people seeking birth control and abortions.
What does the Tavistock and Portman NHS Trust Foundation say?
GIDS is a safe and thoughtful service which puts the best interest of its patients and their families first. We won’t comment on the ongoing proceedings and await the judgment of the Court in due course.
DAY 1 PROCEEDINGS – READ WHAT HAPPENED IN COURT
Analysis by our Director of Legal and Policy, Lui Asquith (they/them):
“It’s been a busy day at the High Court, filled with the Claimant making their full case and the Defendant making a start on theirs. They’ll be finishing tomorrow.
The case centers on questioning whether young people under 18 are able to give ‘informed consent’ to hormone blocking treatment. Informed consent is described by the General Medical Council as a requirement that the patient understands ‘the diagnosis and uncertainties about it as well as the different treatment options (including doing nothing) and their advantages, disadvantages and achievable outcomes.’
The Claimant argues that people under 18 are unable to give informed consent for hormone blockers for various reasons and that it should be the court that decides whether a referral to the endocrine service (the service that prescribes hormone blockers) is in the best interest of an individual, rather than the clinician working with the young person and their family.
What is interesting is that the Claimants are not asking for hormone blockers to be banned completely. It can perhaps therefore be inferred that the Claimants see hormone blockers as appropriate for some young people, but they believe the court should act as decision-maker. How and what the court would consider in such applications to come to a decision was unclear, though the sound system relaying court proceedings didn’t help those in the gallery understand all points made.
As I left the High Court this evening, it struck me that this case is very much about who gets to decide whether a referral for hormone blockers is permitted rather than whether this treatment should be available.
I kept notes during the day’s proceedings so here is an overview of some of the key arguments made by the Claimants (those bringing the case) and the Defendant (Tavistock and Portman NHS Trust Foundation):
WHAT THE CLAIMANTS SAID:
- The Claimant is challenging the Defendant’s current practice of referring some of its under 18 year old patients to endocrinology services for hormone blocking treatment.
- The Claimant argued that no-one under 18 is able to give ‘informed consent’ to hormone blocking treatment.
- The Claimant argued that people under 18 are incapable of understanding the nature and effect of hormone blockers and that people under 18 are not capable of weighing the consequences and side-effects properly in the balance. The Claimants argued it’s not possible for young people, especially those aged 13 and under to fully understand the long-term consequences of puberty blockers. They do not believe young people are “sufficiently mature enough to understand the effects of these drugs.”
- The Claimants argued it’s appropriate to call treatment with puberty blockers ‘experimental’ citing a Royal College of GP statement which says, ‘little is known about the safety’ of the treatment and that, quoting Professor Biggs, “There is no proper evidence from GIDS that the puberty blockers they administer improve psychosocial functioning.”
- The Claimants’ argued that medium and long terms consequences of starting blocker treatment include repeated surgical intervention, an inability to orgasm, compromised cognitive function and a lifelong need for medication.
- The Claimants argued that GIDS documentation does not cite a risk of persistence onto cross sex hormones or a risk of loss of sexual function when hormone blockers are used and that they “cannot accept that there can be an age appropriate discussion” on these matters.
- The Claimants argued that discussions around possible effects of hormone blockers are absent within the current process.
- The Claimants argued that there is a high degree of likelihood for young people to start on cross sex hormones should they start on hormone blockers citing a Dutch study which mentioned that no adolescent withdrew from treatment with blockers and all went on to cross sex hormones.
- The Claimants argued that hormone blockers are not fully physically reversible.
- The Claimants argued that their intention is not to remove access to puberty blockers for those that need them. The Claimant argued rather for a change in system that would mean the family court would make the decision about whether someone under 18 is permitted to have hormone blocking treatment. (Currently a decision is made by clinicians working with the young person and their family.)
- The Claimants argued that were this change to happen, the wishes and the feelings of the child would be continued to be considered by the court as this is always precedent. The Claimant argued however that this new system would acknowledge the job of the court to protect the child.
- The Claimants argued that involving the court in decisions around puberty blockers would not undermine the autonomy of young people.
- The Claimants stated that they do not question the existence of Gender Dysphoria, or that those who suffer from it experience severe distress.
WHAT THE DEFENDANT SAID:
- The Defendant argued that the suggested “conveyor belt” service suggested by the Claimant is not what happens in practice.
- The Defendant stated to the court how it would describe the process: a young person would be referred to the service. An ‘intake stage’ happens whereby a dialogue is had with the young person and family to understand if what the young person is experiencing is suitable for GIDS. There is a current waiting list. The service user will then work with psychosocial clinicians within consultations and various matters are discussed within these sessions.
- The Defendant argued that the current care and treatment provided by GIDS involves an assessment process that is delivered within a service specification, is commissioned by the NHS, is required to act within international and consensual frameworks, as well as regulatory frameworks.
- The Defendant argued that the prescribing of hormone blockers is not instantaneous however, the Defendant explained that the focus of the GIDS service specification is to ‘treat early’ with blockers as this can prevent the development of certain physical characteristics and will make any potential future surgery less invasive.
- The Defendant argued that the Claimant was asking for a radically new approach to the law, namely that informed consent cannot be given by those under 18. The Defendant argued that such an approach would run counter to the Family Law Reform Act, Gillick competence and suggested a ‘startling’ suggestion of how the court should exercise its jurisdiction.
- The Defendant argued that there is to be an independent review of the GIDS and that any findings of this review that needed to be would be reflected in any new specification.
- The Defendant argued that the challenge is to the practice of referring to the endocrine service and that a referral does not necessarily lead to a prescription. The Defendant argued that once a referral has been made, this triggers a new process of further consultation. The Defendant further argued that what a referral constitutes will vary depending on an individual’s age.
- The Defendant argued that the GIDS approach its service in a holistic manner, ‘tailored to the individual, their family / parents’ and that this process involves at least 3-6 consultations as per the service specifications and sometimes more.
- GIDS director, Dr Polly Carmichael gave evidence saying: “it’s factually and conceptually wrong” to suggest all patients who start treatment with blockers progress to cross sex hormones.” The Defendant argued that there is no assumption that an individual who starts on hormone blockers will go on to cross sex hormone treatment, but that the future possibility of that next step is made clear to an individual who may be considering hormone blocking treatment.
- The Defendant argued that hormone blocking treatment and cross sex hormone treatment are dealt with by separate assessment processes.
- The Defendant confirmed that it still continues to have a relationship with a service user after they have been referred to the endocrine service.
- The Defendant argued that the current process was ‘deeply Montgomery compliant’.
- The Defendant argued that as assessment of ‘sufficient understanding’ must be individualised.
DAY 2 PROCEEDINGS
An analysis of the second day at the Tavistock Judicial Review by our Director of Legal and Policy, Lui Asquith (they/them):
“The second day was crammed with submissions from various parties. The day started with Tavistock and Portman (the Defendant) finishing its submissions which they’d started on day 1. The barrister representing endocrinologists from the University College London Hospitals NHS Foundation Trust (UCLH) and the Leeds General Infirmary went next (Interested Party). The Defendant then got to their feet again to answer some questions the bench had raised during their submissions. Transgender Trend followed that. Then the day ended with final submissions of the Claimant, known as the ‘Claimant’s reply’. All that in 4.5 hours!
It would have been easy to think hormone blockers were on trial listening to the hearing but what we need to remember is that the court is being asked whether the current process allows for a young person to make a fully informed decision about hormone treatment not whether they should be available. The treatment’s availability is not what is being challenged, rather the process of prescribing it.
Currently the court can be involved in medical decision-making under very specific circumstances, usually involving a young person refusing to accept treatment or when a young person is deemed to not have the capacity required to make a decision .
Here however, the Claimant argues that even if a young person has capacity, there is not enough information about the impact of treatment for a young person to be able to make an informed decision and even if there was enough information, the young person would not have enough life experience to make an informed decision. The Claimant therefore says that the court should be the decision-maker because the decision is so ‘exceptional’, a parents right to consent on behalf of their child is not enough.
The significance of this claim cannot be exaggerated, it is asking the court to move the boundaries of its jurisdiction in a way that it hasn’t before, in relation to one very specific area of healthcare that provides for one very specific (small) population of people. Of course, if the claim were to succeed and a precedent set, it could be used to argue the boundaries should be moved for other areas of healthcare also. This is another reason why this case is so significant.
Day 2 was busy in relation to consent, competence and the court’s jurisdiction – I have done my best to show you the overarching points that were being made. If you are a law enthusiast then the judgment, once published, will make for some fascinating reading, but for that – you’ll have to wait.
WHAT THE DEFENDANT SAID:
- The Defendant argued that hormone blocking treatment does not necessarily lead to medical transitioning
- The Defendant argued that hormone blockers are fully reversible and that the current process around accessing such treatment is supported by international guidelines
- The Defendant argued that conversations are tailored to the particular type of medical treatment that is being considered and the age of the young person, explaining that hormone blockers are only considered once a young person reaches ‘Tanner Stage 2’
- The Defendant argued that service users are subject to extensive conversations through a consultation period
- The Defendant presented the paperwork service users and families are presented with
- The Defendant argued that puberty blockers are there to reduce the burden of surgery later in life and that not prescribing blockers is not a neutral act rather, a decision to continue the distress without alleviation
- The Defendant argued that hormone blockers bring time to reflect and build life experience
- The Defendant argued that if there is ever any concern over a young person’s ability to understand, then this always has to be worked to ‘resolve’ and that if a young person was believed to not understand the material impact of a decision then that young person will be worked with to try and give them the opportunity to improve their understanding
- The Defendant argued that there is no ‘compulsory process’ and that no young person would be referred on to the endocrine service who was incapable of understanding
- The Defendant argued using the case of Montgomery that a young person needs to only be provided with information that is ‘material’ and what ‘a reasonable person in the patient’s position would attach significance to’. The Defendant argued that the ‘reasonable person’ needs to be a reasonable young person, not an adult comparator. The Defendant argued that the Claimant’s case does ‘violence to the like of Montgomery’.
- The Defendant argued that all manners of decisions require a degree of imagination because we cannot always have all the life experience that relates to a consent process. The Defendant argued that requiring a young person to have had a certain experience before being allowed to make a decision ‘undermined’ what is ‘at the heart of so many medical decisions’.
- The Defendant argued that 10/11 year old service users being referred to the endocrine service were rare (the experiences of 10 year olds specifically was dealt with a lot)
- The Defendant argued that the law around consent needed to be maintained to be ‘simple and clear’ and that the idea of requiring a court order would be ‘out of step’ with the ‘huge breadth of legislation’, as well as contrary to the court’s approach of Gillick and Montgomery
- The Defendant argued that all clinical decisions were currently being made within a lawful process
- The Defendant argued that it would be ‘absurd’ to distinguish between types of medical treatment when applying the logic of ‘Gillick’ and Fraser Guidelines
- The Defendant argued that the Claimant was asking ‘for the first time ever’ that under 18s lack the power to give valid consent and that it would be a ‘rigid exclusion’ when applying Gillick competence
- The Defendant argued that the court’s jurisdiction was different when looking at a refusal of healthcare compared to a decision to an advancement of healthcare
- The Defendant argued that there is a consent process, involved information through dialogue and documentation and that the process was individualised so individuals receive what is ‘true’ and ‘relevant’ to them
- The Defendant argued that the court cannot declare their practice for referral for hormone blocking treatment is unlawful
- The Defendant argued that if a young person, parent(s) and clinician were all in agreement then the court would have no justification to be involved in the process as the court should only be involved in cases that relate to a lack of capacity, which does not apply.
- The Defendant argued that having a court process would interfere in the private lives in a way that was ‘difficult to conceive’
WHAT UCLH/LGI (‘UCLH’) SAID:
- The UCLH argued that Gillick competence applies notwithstanding the nature of treatment
- The UCLH argued that hormone blockers are fully reversible and that if an individual stops taking them, their puberty recommences
- The UCLH argued that an individual won’t be referred to the endocrine service if psychosocial support is working
- The UCLH argued that there is no alternative treatment other than hormone blockers when dealing with the distress of gender dysphoria and that the purpose of hormone blockers was to treat a vulnerable, distressed person to enhance their quality of life
- The UCLH argued that it has treated hundreds of patients and seen the benefit
- The UCLH asserted the importance of autonomy of young people
- The UCLH argued that medical decision making is within the exercise of parental responsibility
- The UCLH argued that everyone treated has Gillick competence
- The UCLH argued that by the time someone is 16 years old it is too late to start on hormone blockers, but that someone who had started on hormone blockers would potentially have years of life experience before having to make a decision around cross-sex hormones
- The UCLH argued that there was a significant age gap between those who start hormone blockers and those who start on cross sex hormones and that the impact of both are distinct and must not be conflated
- The UCLH argued that the current practice is consistent with international best practice
- The UCLH argued that some of the Claimant’s evidence could not be relied on
- The UCLH argued for the court to dismiss the claim and that if it did not it could result in a domino effect asking, how many other decisions would have to go to the High Court? Adding that it would be a diversion of NHS resources and it would be a significant event for an individual to have their case heard in the High Court even if it were a private hearing
- The UCLH argued that the process should continue as it has been
WHAT TRANSGENDER TREND (Intervener) SAID:
- TT argued that the case was of particular importance to those young people whose gender dysphoria would not have persisted and to those whose gender dysphoria persists when it otherwise would not
- TT argued that de-transitioning is ‘painful’ and ‘difficult’ within the context of this being a risk to those who do undergo treatment
- TT argued that there is currently a deliberate provision by the state of a treatment that has debatable benefit to some, which is likely to cause persistence of dysphoria
- TT argued that the court must ensure vulnerable children are afforded the full protection that the law provides
- TT argued that hormone blockers almost always lead on to phase 2
- TT explained that their submissions had a particular focus on ‘natal females’ and that its approach was underpinned by ‘feminist values’
- TT argued that a child does not have a full understanding of life in relation to the things that will be of reasonable foreseeable importance
- TT argued that Montgomery was irrelevant to Gillick
- TT argued that Gillick competence should also include consideration to ‘outside influence’ and how young people ‘perceive themselves in the world’
- TT argued that broader cultural factors must feed in to the court’s assessment of the consent issue
- TT argued that a decision around the subject treatment require the experience of an adult and that the process must
WHAT THE CLAIMANT SAID:
- The Claimant argued that a young person’s autonomy will only be respected if an individual is given information that an adult would have and be able to arrive at an informed choice, saying “any lower test does not do justice to autonomy”
- The Claimant argued that the court was required to create an ‘exceptional solution for an exceptional case’
- The Claimant argued that the decision a young person was making was of such significance and consequence that it must be made with full understanding and argued that it was impossible that this is made out currently, stating that informed consent was not satisfied, even if capacity is
- The Claimant argued that the pathway should require a ‘high level of competence for a highly complex decision’
- The Claimant argued that it would be the hospital or doctor that would being a case to the court
- The Claimant argued that there was no age appropriate way that one could explain medium-lifelong consequences
- The Claimant argued that the subject treatment should be an exception to the usual approach around parental responsibility because “controversial treatments” render PR to not be enough as it is not a decision that parents should be making asking, so if not the parents, who will?
- The Claimant argued that the suggestion that a young person can give informed consent for the subject treatment is a ‘fairytale’
The bench thanked the parties for the huge amount of work all parties had put into the case. The Claimant was offered the opportunity to file further submissions in relation to a witness statement the Defendant had filed the morning of day 2.
Parties were informed they would not need to attend for judgment, which we now await. We do not know when the judgment will be published.