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.
To read a general summary of the High Court ruling, click here.
The answers below reflect our current understanding of the new rules however please note this is a live situation and these may well be updated from time to time to reflect areas that have been clarified.
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:
- Whether the Order would continue to be ‘stayed’
- 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 a 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.
You can find the application in full here: https://drive.google.com/file/d/1XX7-WCCf3sgQrAKVN_ecm5WrCNfWB7MR/view
THE BASICS
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, 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 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 NHS England has made because of the High Court’s decision.
5. 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.
6. 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.
7. 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.
IMPACT
1. Does this case create a precedent for Scotland and Northern Ireland as well as England and Wales?
It does not create a binding precedent for Scotland or Northern Ireland however, it may still be persuasive.
2. My child is already on hormone blockers, will their continued access to them be impacted?
If your child is under 16 and is already on hormone blockers, GIDS has advised that they will continue to receive them until GIDS have carried out a clinical review, at which point GIDS will either apply to court for a ‘best interest’ order, or if medication will be safely withdrawn. GIDS have confirmed that clinical reviews will start at the end of January 2021.
All those with scheduled endocrinology appointments should be contacted soon. Those already being seen by an endocrinology team should receive a letter from GIDS with further information, which states that if your child is under 16, and already receiving puberty blockers their “access to medication will not be automatically withdrawn”.
You can find out more on the GIDS website.
3. My child is under 16 and on the waiting list, will they be able to access hormone blockers?
As per the NHS amendment of 1st December, if your child is under the age of 16 and is currently on the waiting list for GIDS, they still have to wait to be seen by GIDS as the first step. The psycho-social support (being the main service GIDS provide) will remain of utmost ‘importance and unchanged’.
As of 1st December 2020, GIDS have confirmed that all new referrals to the endocrinology clinic for puberty blockers have been paused. As to when this service is to be reinstated is unknown. We will continue to update this FAQ, so please check back or instead, keep checking the GIDS website.
The recent NHS amendment states that any new referral will only be made if a ‘best interests’ order is made by the Court. More information on what a ‘best interests’ order is can be found below.
4. My child has just started the consultation at GIDS, will they be able to access hormone blockers?
The psycho-social support will remain of ‘utmost importance and unchanged’. If your child has just started the consultation process at GIDS, they will not be referred to the endocrinology clinic for puberty blockers unless a ‘best interests’ order is made by the Court. More information on what a ‘best interests’ order is can be found below.
As of 1st December 2020, GIDS have confirmed that all new referrals to the endocrinology clinic for puberty blockers have been paused. As to when this service is to be reinstated is unknown. We will continue to update this FAQ, so please check back or instead, keep checking the GIDS website.
If your child is 16 or 17 years old, as long as they are deemed to have mental capacity, and their lead clinician considers the treatment to be in their best interests, they can be referred to the endocrinology clinic, and treatment with puberty blockers may proceed. If there is doubt as to whether the treatment is in their best interests, then a ‘best interests’ order from the court will be required, before any treatment can proceed.
5. My child has been referred to the endocrinology service already, will they be able to access hormone blockers?
GIDS are advising that all those already receiving treatment in an endocrinology clinic will continue on treatment until GIDS have carried out a clinical review. You and your child should receive a letter with further information.
As we understand it, GIDS have paused all new referrals to the endocrinology service until clinical reviews have been conducted.
GIDS have confirmed that clinical reviews will start at the end of January 2021.
You can find out more on the GIDS website.
6. Does this decision impact on those who are considering, or are already receiving cross sex hormones?
GIDS have advised that since the Court ruled that young people who are aged 16 or 17 are more likely to be able to give informed consent, and therefore a ‘best interests’ order is probably not necessary for your child to continue to receive puberty blockers or cross sex hormones.
GIDS have stated they will still carry out a clinical review of your child’s case, which will start at the end of January 2021. 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.
You can find out more on the GIDS website.
7. What is a ‘best interest’ Order?
The ‘best interest’ order is the Order that is now required to be applied for in order to obtain access to hormone blockers for those under 16 and in some cases, to obtain access to cross sex hormones.
We await confirmation from the NHS as to when such applications may start to be filed.
We currently do not know what criteria this application will be made under nor which court the application will be made to. We have sought urgent clarification from the NHS in this regard.
8. How quickly will court applications take to process?
We are unsure how long an application will take from start to finish. It will depend on the court and how health providers decide to organise the application process. We have sought urgent clarification from the NHS in this regard.
9. Will this decision impact on the waiting times?
There has been no formal comment from the Tavistock and Portman NHS Trust nor NHSE that directly addresses this question however, we anticipate that this will inevitably exacerbate the delays already experienced by young people on the GIDS waiting list, some of which have already been waiting well over 2 years.
10. Who will apply to the court for a ‘best interests’ order?
The service user’s NHS provider. We are currently unsure whether individuals/parents will be able to apply to the courts independently. We have sought clarification from the NHS on this point.
11. Is the case being appealed and if so what does that mean?
As we understand it, the defendant’s sought permission to appeal on 1st December, this was rejected by the court (not uncommon). It was confirmed on 22 December that the Tavistock and Portman NHS Foundation Trust, together with University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospitals NHS Trust sought permission to appeal the Order.
If the application to the Court of Appeal is successful, this will likely mean that the case will be heard by the Court of Appeal. Whatever happens, it may be that the case then moves on to the Supreme Court.
Irrespective of the above however, we understand that this will not affect or delay the changes brought in by the NHS at the beginning of December unless a later decision is made that requires the process to be again altered.
12. Is this judgment law right now?
Yes, the decision of the High Court is case law and will remain as the precedent on the matter unless a higher court overrules what the High Court has decided.
13. Will this impact private practice?
We are unsure currently and will update this answer once we have obtained clarification on this point.
14. Will the Dr Cass Independent Review have an impact at all?
As we understand it Dr Cass will consider the judgment as part of her independent review, as well as the NHS amendments that have been brought in as a result of the judgment.
15. Is there anything I can do to help the situation?
You can voice your opinion to those that have the power to make change by contacting your MP.
Tweet them, facebook them, direct message them on Instagram or email them, just make sure your voice is heard. It doesn’t have to be written, you could send a video. It is important that you speak or write plainly and share your own personal stories and experiences as to how this judgement has already or will affect you or your family. This will make the most impact and influence your MP.
Our guidance on how to write to your MP and how to find out who to write to is available here.
16. 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 Intelligence, LGBT Fdn, Barnardos, GIRES, NSPCC, Stonewall, All Sorts Youth , LGBT Consortium
17. 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.
- You can call Samaritans on 116 123
- You can call Childline on 0800 1111