The Court of Appeal (CoA) recently handed down their judgment in the landmark case surrounding the provision of puberty-blocking medical treatment by Tavistock and Portman NHS Foundation Trust which leads the Gender Indemnity and Development Service (GIDS) for patients up to 18 years old.

Legal, medical and ethical issues of treatment

The medical treatment of children for gender dysphoria is controversial.  The treatment raises legal, medical, moral and ethical issues. Puberty-blockers are used to temporarily suppress puberty in pre-pubescent transgender and gender-diverse children. 

Prescription of these medications is a big step and is not undertaken lightly and prior to prescribing these drugs the treating clinicians had to ensure that the child was legally competent to make this life-altering treatment decision.

Competence test

This was done by way of what is known as the “Gillick competence” test. The Gillick case related to a challenge to family planning contraceptive advice and treatement for young people. It was decided in the House of Lords in 1985 and the judgment remains current law.

This test effectively allowed a child under the age of 16 to consent to their own treatment, and prescription of these drugs, if the treating clinician was satisfied that the child was believed to have enough intelligence, competence and understanding to fully appreciate what was involved in their treatment. This largely therefore came down to ensuring that those seeking this treatment were adequately informed of the consequences and effects of the treatment.

Puberty blockers judicial review

A judicial review was first brought by claimants who were challenging the Trust’s practice of prescribing puberty blockers to under 18s. They sought a declaration from the High Court that the practice was unlawful without a court order determining that provision of the drugs was in the best interests of the child. 

This was rejected by the High Court which re-affirmed the competency test and held that the information provided to patients was adequate so that the patients were providing informed consent. 

The High Court, however, went further within its judgment by making a declaration as to the relevant information that should be provided to, and understood, by a child so as to be classed competent to consent to the treatment. 

Additionally the High Court provided guidance as to when to involve the courts in these decisions. This guidance was assessed by clinicians as amounting to making an application to the court for permission to administer these medications a virtual necessity.

Court of Appeal hearing

The decision left a lot of uncertainty and as such an appeal was lodged by the NHS Trust to  determine whether the High Court should have given the guidance it did. This appeal was heard by the Court of Appeal and its judgment was handed down on 17 September, 2021.

The CoA in its judgment recognised the “difficulties and complexities associated with the question of whether under 18s were competent to consent to the prescription of puberty blockers and cross sex-hormones” and as such reaffirmed the “Gillick competence” test stating that “it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment”. 

And further that “there were great dangers in a court grappling with issues which were divorced from the factual context that required their determination”.

In dealing with the issue surrounding the guidance provided by the High Court the CoA held that it was not for the High Court to give guidance in such a matter “that generalised about the capability of persons of different ages to understand what was necessary for them to be competent to consent to the administration of puberty blockers. The guidance would require applications to the court when there was no legal obligation for such an application to be made. It placed patients, parents and clinicians in a difficult position, and should not have been given.” 

The CoA decided that the High Court declaration placed an improper restriction on the Gillick competence test.

Tavistock and Portman NHS foundation welcomed the outcome, adding further comment that “The Trust remains committed to working with our commissioners and partners to strengthen both the quality of care and decision making for our patients and the evidence base in this developing area of care.” Its full press release can be accessed here

It is important to note that the legal test of whether a child is competent to give informed consent to this treatment is one that involves the clinician evaluating and deciding whether the child has sufficient intelligence and understanding to make the decision. The CoA has reaffirmed these principles and in our opinion any appeal of this decision to the Supreme Court is unlikely to be successful.

Lawfulness of doctors' decisions can be legally challenged

Whilst the CoA confirmed that it is for doctors not judges to make the decision on competence to give informed consent, the lawfulness of any individual decision made by a doctor can be challenged in the court. 

It may be that the doctor has wrongly applied the legal test or carried out the patient assessment incorrectly. The child’s parent or some other interested party may dispute the decision of the doctor. The courts will always provide a forum to resolve a dispute in these circumstances.

Irwin Mitchell has a specialist medical treatment legal team. The team is recognised experts in the field and has been involved in a number of the leading cases considered by the courts and cases that have developed the law in this area.

Find out more at our dedicated medical treatment section.