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UPDATE: A high court ruling on 26th march 2021 now alters the impact of the judicial review, likely meaning parents and guardians can, in most cases, consent to puberty blockers on behalf of their children without having to go to court. CLICK HERE TO READ THE UPDATE.

What was the decision at the hearing 29/01/2021 and what does it mean?

This was not the substantial hearing of the appeal, it was a case management hearing which essentially organises the case before it is heard in full.

The 2 main questions being considered:

  1. Whether the Order would continue to be ‘stayed’
  2. Who could intervene (third parties allowed to join the proceedings)
DECISIONS

1.     All parties agreed that the Order should continue to be stayed pending appeal. This means the legal effect of the judgment is suspended. The NHS England amendment was not discussed by the court today. We will update this when we get more information on this point. 

2.     The organisations/individuals permitted to intervene at the appeal are:

–        University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospitals NHS Trust (oral and written evidence)

–        Transgender Trend (oral and written evidence)

–        A joint intervention of Gendered Intelligence, The Endocrine Society and Brook (written evidence only)

–        Dr Bell (written evidence only)

–        The Association of Lawyers for Children (written evidence only)

The human rights organisation, Liberty and the British Medical Association have been allowed to apply to intervene and their applications have to be received by 12 February. A decision will be made about their involvement following a review of the application.

The court is aiming to hear the full appeal around May-July 2021. 

THE APPEAL

Permission to Appeal has been Granted: What Does That Mean?

This is good news! 

The Tavistock and Portman NHS Trust (the Tavistock), University College London Hospitals and Leeds Teaching Hospitals NHS Trust applied in December to the Court of Appeal to ask that it reviews the decision of the High Court as they did not agree with it. 

It has been confirmed that the High Court’s decision (dated 1 December 2020) will be reviewed by the Court of Appeal by March 2022. 

Essentially, the Court of Appeal will decide whether it thinks the High Court made the right decision or not. 

You’ll remember the High Court decided in December 2020 that it was highly unlikely/doubtful for anyone under the age of 16 to be able to consent to hormone blockers and that those 16 or 17 years old may not be able to either. Following this, NHS England updated their service specification with immediate effect to say that no one under 16 would be able to access hormone blockers without a court order and potentially those aged 16 and 17 years old could need a court order too.

What’s the Court of Appeal?

The Court of Appeal is the second highest in the legal system of England and Wales. The highest is the Supreme Court of the United Kingdom.  Find the court structure chart HERE

What happens now?

The Court of Appeal will hear the appeal ‘by March 2022’. There will usually be three judges hearing an appeal. Usually, no new evidence is allowed as the facts have been available at the High Court stage, but sometimes it is possible to file fresh evidence. 

What does this mean for those on hormone blockers already? 

The Gender Identity Development Service (GIDS) has made it clear that existing patients’ care will not be discontinued unless a patient and their clinician decides to withdraw from puberty blockers or if a court decides it is not in an individual’s best interests. 

GIDS have confirmed that it will start reviewing its service users files at the end of January 2021. You may remember that NHS England introduced a new Amendment to its service provisions with immediate effect, even though the Order was ‘stayed’. The Tavistock are commissioned by NHS England and so even though the Order does not require any changes to be made pending appeal, as NHS England have changed its service specification, the Tavistock are still subject to this which is why service users are being impacted already. 

We will be contacting NHS England to ask whether it will suspend the commencement of file reviews now the permission to appeal has been granted considering the Order was ‘stayed’, as well as recommence referrals to endocrinology. 

If NHS England don’t pause its approach pending the appeal, this could mean that we are in a strange situation of Best Interest applications being made, without knowing whether it is a system that will need to continue. This is something that we need to ask NHS England about. 

What does it mean for those who are not on hormone blockers, but may wish to access them in the future?

Psychosocial support is continuing however, at present GIDS have paused new referrals to endocrinology.  We believe that this has not changed. However, as above, we will enquire as to whether this position will change considering the permission to appeal has been granted. 

What happens if the Court of Appeal agrees with the High Court?

Broadly, this would mean the Tavistock’s application would have been unsuccessful. This could mean the Tavistock then apply for permission to appeal to the Supreme Court. 

There is also the possibility that the Court of Appeal agrees with some of the High Court’s decision, but not all of it – it isn’t necessarily a simple ‘agree/disagree’ situation! 

What happens if the Court of Appeal disagree with the High Court?

Broadly, this would mean the Tavistock’s application had been successful. 

This could mean that the Applicant of First Instance then apply for the Court of Appeal’s decision to be appealed and heard by the Supreme Court.

What is the GLP Coalition and what have they applied for?

The Good Law Project (GLP) have funded a group ‘intervention’ by Stonewall, the Endocrine Society, Gendered Intelligence, and Brook. These four organisations have applied together to the Court of Appeal to intervene in the Bell v Tavistock case. An intervener is someone/an organisation that believes it has information that will help the court each a decision. Essentially, GLP’s coalition are asking to give evidence to the Court of Appeal. If successful, this evidence will focus on what the consequences of the judgment have been so far, how the children involved understand the impact of puberty blockers and the effect of puberty blockers themselves, from a trans perspective. As we understand it, the court will decide whether they will be allowed to join the case on Friday 29th January.

Mermaids is delighted to see an intervention that will give a voice to young people who were previously denied the opportunity. Those impacted by this ruling deserve to be heard.

YOUTH FAQs: Bell v Tavistock and Portman case 

These questions are created to help young people understand the recent court case and what it means for them. 

For ease, our answers also aim to include and reflect the NHS England’s recent ‘amendment’ to its services that were brought in because of this case.  

This is a live situation and we will do our best to keep this page up to date, but you may also wish to keep regularly checking the GIDS website.

1. What are people talking about when they say the ‘Keira Bell case’ or the ‘Tavistock case’?

They are referring to a case that was ‘heard’ in the High Court in October 2020, which was deciding whether under 18s can understand enough about puberty blockers and hormones to make their own decision about whether to take them or not. 

Keira Bell and ‘Mrs A’ were the ‘Claimants’ in the case and the Tavistock and Portman NHS Foundation Trust was the ‘Defendant’ in the case. 

The judges’ decision was published on 1 December 2020. 

2. What is the High Court? 

The High Court is the court that has made the decision in this case. As its name suggests, it’s one of the most important courts in England & Wales and its decisions are only overruled by the Court of Appeal and then the Supreme Court. 

You can find a diagram explaining the structure of this country’s court system HERE

3. What did the High Court decide?

Basically, the court has said that people under 16 are unlikely to be able to ‘consent’ to hormone blockers on their own.  

As a result of this decision, the NHS England has changed the process around accessing hormone blockers and now, a court has to decide whether it’s in someone’s ‘best interests’ to start puberty blockers before a doctor can prescribe them. 

For those over 16, a court may be asked to decide whether someone can start hormones, it will depend whether the person’s lead doctor is unsure if the person understands enough about the treatment. If the lead doctor is unsure, then a court will be asked to decide whether it’s in someone’s ‘best interests’ to start cross sex hormones before a doctor can prescribe them. 

4. What is the NHS England Amendment? 

This is the update that the NHS England has made to its services as a result of the Bell v Tavistock case. The Amendment was published on 1st December 2020 and shows what process changes the NHS England has made because of the High Court’s decision.  

5. Is the Bell v Tavistock result the law now? 

Yes, the High Court’s decision is the law (it is a piece of ‘case law’) until a higher court overrules what the High Court has decided, maybe after an appeal.

The NHS England Amendment is not the law itself, but has been introduced as a result of the new case law. 

6. What is case law? 

Case law is when a court decides what the law is and what it should be and how it should be applied.

7. I live in Scotland / Northern Ireland – am I affected?

Not technically, but it may still influence doctors and courts in Scotland and Northern Ireland. 

8. I’m under 16 and on the waiting list, will I be able to get hormone blockers? 

GIDS is not stopping their emotional support service so you should still receive an appointment letter at some point depending on where you are in the waiting list.  

If after the consultation process, it is decided that hormone blockers may be something that would benefit you, GIDS will apply for a ‘best interests’ order from a Court. 

As we understand it, no new referrals for prescriptions are being made at this time. 

More information on what a ‘best interests’ order is can be found below. 

9. I’ve just started the consultation at GIDS, will I be able to access hormone blockers? 

GIDS is not stopping their emotional support service and so this should continue as normal. 

If you are under 16, if after the consultation process a doctor thinks that hormone blockers may be something that would benefit you, GIDS will need to apply for and get a ‘best interests’ order from a Court. More information on what a ‘best interests’ order is can be found below. 

As we understand it, no new referrals for prescriptions are being made at this time. 

10. I’ve been referred for hormone blockers already, will I still be able to get them?

If you’re under the age of 16 and have been referred but not started on hormone blockers, as far as we understand, your referral will only keep going if your doctor in charge of your care reviews your file, thinks that hormone blockers are in your best interests, makes an application to the court and the court says it’s in your ‘best interests’. GIDS have said reviews will start at the end of January 2021.

GIDS are advising that all those with scheduled endocrinology appointments will be contacted in due course and individual plans will be made. You can find out more on the GIDS website.

11. I’m already on hormone blockers, will I be able to get another prescription?

If you’re under 16 and already on hormone blockers, your doctor will have to review your case and decide if they think the hormone blockers are in your ‘best interests’ and if they do, they will have to make an application for a ‘best interest order’ from the court. GIDS have said reviews will start at the end of January 2021.

GIDS are advising that all those with scheduled endocrinology appointments will be contacted in due course and individual plans will be made. You can find out more on the GIDS website.

If you are already being seen by an endocrinology team, you will receive a letter from GIDS with further information, which states that if you are under 16, and already receiving puberty blockers “your access to medication will not be automatically withdrawn”. You can find this letter on the GIDS website.

12. What if I am thinking about starting hormones?

GIDS have advised that since the Court ruled that if you are aged 16 or 17, you are more likely to be able to give informed consent, and therefore, a ‘best interests’ order is probably not necessary for you to receive, or continue to receive puberty blockers or cross sex hormones. 

GIDS have stated they will still carry out a clinical review of your case. If there is doubt about the patient’s ‘best interests’, the lead clinician will have to consider an application of best interest to the court, through their NHS provider. GIDS have said reviews will start at the end of January 2021.

You can find out more on the GIDS website.

13. What is a ‘best interest’ Order? 

The ‘best interest’ order is a decision from a court that you need so that you can get hormone blockers if you’re under 16, or potentially cross sex hormones is you are 16 and 17. 

This order will say, if granted, that taking the hormone blockers or cross sex hormones is in your best interests. 

Currently, we are unsure which type of court the application will be sent to and what the application will look like, but we have asked the NHS England to let us know as soon as possible.

14. How long will the court take?

Unfortunately, we don’t know at the moment, but we have asked the NHS England to let us know as soon as possible. 

15. Will this mean I have to wait longer to start hormone blockers?

Again, we’re not sure but we think it will make waiting lists longer.

16. Who will apply to the court for this order?

Your NHS provider will apply and you won’t need to. We don’t know whether you will be able to apply yourself yet, but we have asked the NHS England to let us know as soon as possible. 

17. Is the case being appealed and if so what does that mean?

Hopefully. It has been confirmed that an application has been made and we’ll know if the case will be heard by the Court of Appeal, probably in the New Year. 

18. What can I do if I need support? 

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. 

Our helpline is open Monday through to Friday 9am-9pm on 0808 801 0400, we also have a WebChat service that operates on the same days and times. 

There are also other amazing organisations out there that can also offer you support as well as us, such as – Gendered IntelligenceBarnardosGIRESNSPCCStonewallAll Sorts Youth 

19. Are you in crisis? Do you need help?

If you need someone to talk to, please reach out for support – there are several options for you and by no means is this list exhaustive. 

  • You can text MERMAIDS to 85258 for free 24/7 crisis support all across the UK. All texts are answered by trained volunteers with support from experienced clinical supervisors. 

What does the Court Order say?

The Court Order is the formal paperwork that sets out the decision of the court and literally sets out what it orders certain parties to do.

What does it mean that the decision was ‘stayed’?

You will see at paragraph 3 that the outcome of the judgment is ‘stayed’. This means the High Court essentially paused the carrying out of the decision until (whichever would be the later date) 4pm on 22 December or the decision of the appeal, should permission be granted. i.e. nothing had to be done immediately to implement the decision. Seeing clause 3 of the Order raises serious questions around why NHS England published its Amendment so quickly when it was not required. We are seeing the first hand impact of such haste, which has resulted in many young people and family members terrified for their future.

Considering the detail of the Order, we have asked NHS England to provide clarification on why they acted with the speed they did and ask that they suspend the effect of the Amendment, in line with the Court’s Order.