This month we have seen the Landmark High Court decision in the case of Bell & Anor v The Tavistock And Portman NHS Foundation Trust  EWHC 3274.
The High Court was asked to determine whether children experiencing gender dysphoria could give informed consent to receive puberty blocking drugs.
The NHS website confirms that if your child is under the age of 18 and may have gender dysphoria, they will usually be referred to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust. It states that a multi-disciplinary team will carry out a detailed assessment, usually over 3-6 appointments over a period of several months.
The NHS website explains that ‘.. hormone blockers (gonadotrophin-releasing hormone analogues) pause the physical changes of puberty, such as breast development or facial hair and little is known about the long-term side effects of hormone or puberty blockers in children with gender dysphoria. Although the Gender Identity Development Service (GIDS) advises this is a physically reversible treatment if stopped, it is not known what the psychological effects may be.
The NHS refers to the treatment as a simple ‘pause’ in the physical changes of puberty, however, it has come to light that there is very limited research on long-term impact of puberty blockers and as such, the treatment is deemed experimental.
In the recent decision, the High Court applied the House of Lords decision in the case of Gillick v West Norfolk and Wisbech Health Authority  AC 112 to establish whether a child has the competence to lawfully consent to treatment.
In its Judgment, the Court stated that ‘to achieve Gillick competence the child or young person would have to understand not simply the implications of taking puberty blockers but those of progressing to cross-sex hormones. The relevant information therefore that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers, would be as follows:
1. the immediate consequences of the treatment in physical and psychological terms;
2. the fact that the vast majority of patients taking puberty blockers go on to cross sex hormones and therefore that s/he is on a pathway to much greater medical interventions;
3. the relationship between taking cross sex hormones and subsequent surgery, with the implications of such surgery;
4. the fact that cross sex hormones may well lead to a loss of fertility;
5. the impact of cross sex hormones on sexual function;
6. the impact that taking this step on this treatment pathway may have on future and life-long relationships;
7. the unknown physical consequences of taking puberty blockers; and
8. the fact that the evidence base for this treatment is as yet highly uncertain.
The Judgment confirms that in the year 2019/2020, 161 children were referred by GIDS for puberty blockers and of those 161, the age profile is as follows:
3 were 10 or 11 years old at the time of referral;
13 were 12 years old;
10 were 13 years old;
24 were 14 years old;
45 were 15 years old;
51 were 16 years old;
15 were 17 or 18 years old.
On the day of Judgment, NHS England ordered Tavistock Gender Identity Development Service (GIDS) to cease referring patients under the age of 16 to paediatric endocrinology clinics for puberty blockers unless a ‘best interests’ order for the child in favour of the treatment had been made. The GIDS was also ordered to review all current patients under the age of 16 that had been referred for puberty blockers.
Importantly, the High Court found: ‘Although a child may understand the concept of the loss of fertility for example, this is not the same as understanding how this will affect their adult life. A child’s attitude to having biological children and their understanding of what this really means, is likely to change between childhood and adulthood. For many children, certainly younger children, and some as young as 10 and just entering puberty, it will not be possible to conceptualise what not being able to give birth to children (or conceive children with their own sperm) would mean in adult life. Similarly, the meaning of sexual fulfilment, and what the implications of treatment may be for this in the future, will be impossible for many children to comprehend.’
What did the Court find in Bell & Anor v The Tavistock And Portman NHS Foundation Trust  EWHC 3274 ?
It is ‘highly unlikely’ that a child aged 13 or under would ever be competent to give consent to being treated with puberty blockers.
It is ‘very doubtful’ that children aged 14 and 15 ‘could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent’.
What does this mean for me?
Some young people have found that they regret having puberty blockers and, in some cases, subsequent treatment and are now left with long-term physical and psychological issues.
If you are a young person who was given puberty blockers as a child and are now concerned about the decision to provide them to you, you may wish to get in touch with a member of our specialist legal team to seek advice.
Likewise, if you are the parent or guardian of a child that has been given puberty blockers under the age of 16, our specialist team can provide you with advice and responses to any queries or concerns you may have.
Do not hesitate to contact us via telephone on 0845 287 0939 or by email.
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