UK: Winding back Bell v Tavistock[i]; High Court affirms that parents can consent to puberty blockers on behalf of their children, which are not (of themselves) part of any “special category” of treatment requiring Court approval.
Abstract
In AB v CD & Ors[2], the UK High Court effectively reversed the practical effects of Bell (which is under Appeal)[3] by confirming that parental responsibility extends to the ability to consent to treatment on behalf of a child.[4] The parent’s right to consent to treatment continues even when the child is Gillick[5] competent to make the decision,[6] save where the parents are seeking to override the decision of the child.[7]
Further, the Court found that despite the complex issues raised by Bell, puberty suppressants do not justify a “special category”[8] by which parents are unable to consent in law,[9] nor do they give rise to the need for Court authorisation either as a legal requirement[10] or as a matter of best practice. Given the “central, fundamental and critical role of parents in their children’s lives and decision making about their lives”,[11] a “best interests”[12] application should only be made to the Court in circumstances where there is a clinical disagreement; possible alternative treatment of the medical condition in issue; or the decision is, in the opinion of clinicians, finely balanced.[13]
Background
In Bell, the Court found that the complex nature of Gender Dysphoria,[14] paired with the experimental yet life changing nature of the treatment, rendered it “highly unlikely”[15] that a child would be deemed to have the requisite capacity to consent to treatment themselves.[16] This was fatal to the factual matrix of the case as it was the practice of the Service[17] to obtain consent from the child alone (and not the parents).[18] Bell expressly did not deal with the issue of parental consent for treatment, be it applied to Gillick or non-Gillick competent children or young persons.[19]
Following Bell, NHS England (which administers the Gender Identity Development Service, GIDS) amended its Service Specification[20] and instructed the treatment Trusts to seek Court approval in relation to continuing treatment to existing patients on puberty blockers, (PBs), and to not commence any transgender children on PBs,[21] effectively halting treatment to this vulnerable cohort.
Rather than seeking parental consent to validate the legal basis for continued (or commencing) treatment with PBs, the Service envisaged a two stage process to be applied individually to each patient currently receiving treatment: firstly, an internal reassessment[22] of Gillick competency based on the Bell factors,[23] and secondly, a ‘best interests’ application to the Court for those cases in which it was found that PBs should be continued.[24] Such a course would result in treatment delays,[25] further burden an overloaded judicial system, and cause extreme distress[26] to young trans patients who would be at a real risk of developing unwanted and irreversible secondary sexual characteristics should treatment be withheld for a period of time.
The Service and associated treatment Trusts rely on general practitioners (GPs) to prescribe PBs as part of a multi-disciplinary approach to treatment. Before Bell, the treatment Trusts would prescribe PBs only when a GP refused to do so. After Bell, the appetite for GPs to continue to prescribe PBs pending the outcome of the appeal is vexed, with some refusing to do so.[27]
AB v CD
AB v CD makes clear that it endorses Bell and is not a critical review of the reasoning or conclusions in that decision as to the appropriate test for Gillick competency,[28] but rather an attempt to clarify a practical grey area created by swift service reforms affecting a specific cohort of patients, namely those young trans patients who have had their treatment halted, with uncertain future treatment prospects and timeframes.
One of those patients is XY, a 15 year old trans child who had been receiving treatment through the Service for 5 years, having commenced PBs in July 2019. XY’s next round of treatment fell due in April, roughly four months after the Application was made by her mother (AB) seeking a proactive declaration from the Court that she (together with XY’s father, CD, whom she had separated from) have the ability to consent in law to the continuation of treatment on behalf of XY.[29] AB argued that as parents, they ought to be able to exercise parental responsibility prior to the Court intervening in decisions about the child’s healthcare. The Service agreed that clarification was needed post Bell as to the basis (if any) on which medical practitioners could continue to prescribe.[30] XY’s GP had continued to prescribe PBs post Bell but there was no certainty that course would continue uninterrupted.
The matter was subject to an interlocutory judgment identifying the following critical questions, [31] which were then determined by Justice Lieven[32] (who was also a member of the Divisional Court who decided Bell):
- Do parents retain the legal ability to consent to the treatment?
- Does the administration of PBs fall into a “special category” by which either (i) an application must be made to the Court before they can be prescribed; or (ii) as a matter of good practice an application should be made.
It is relevant and material that there was unanimity between the clinicians, the parents and XY that she should continue to be prescribed PBs pending the completion of her clinical review, which was expected to take at least three months.[33] It is also relevant that XY and her parents appear to have engaged in a comprehensive and sustained discourse with the Service, including focused consideration of fertility preservation treatment, which was ultimately not pursued.[34]
XY provided written evidence as to the deeply distressing prospect of developing irreversible male sexual characteristics should treatment cease for a period of time, which was accepted by her treating clinicians as being against her interests.[35]
- Do parents have the legal right to consent to treatment – Yes
In considering whether parents retained the legal right to consent to treatment, the Court reviewed voluminous authorities and found them “replete with judicial statements about not merely the centrality of parents in decisions about their children, but also as to why the Courts should in the vast majority of situations respect and uphold the parents’ views and decision making about their children.”[36] A parent’s right to consent to medical treatment is a clear incident of the duty to protect the child[37] and applies even in the most serious of cases,[38] absent some significant harm arising from unreasonable parental care.[39] These are aspects of the parental rights and duties set out in Article 5 of the UNCRC and Article 8 of the ECHR.[40]
There was debate before the Court as to when parental consent rights terminated in Gillick competent children.[41] However, having considered the relevant authorities, her Honour concluded that parents retain parental responsibility in law and the rights and duties that go with that, even once Gillick competency is reached.[42] Parental consent rights exist concurrently with those of the child but cannot be used to “trump” the child’s decision.[43] If a child is unable to make a decision by virtue of competency (lack of), consciousness or deference , parents can make those decisions on their behalf.[44]
In the case of XY, her post Bell Gillick competency could not be confirmed (because her clinical review had not been completed, and separately, it was not a question to which the Court was directed), but Lieven J noted that she did not object to her parents exercising their concurrent consent rights.[45] In this way, the Court reasoned that whether parental consent is given because XY is or is not Gillick competent need not concern the treating clinicians on the basis that legally operative consent for treatment has been given.[46]
- Do PBs fall under a “special category” of treatment requiring court authorisation – No.
The parties were united in submitting that, if the law did in fact recognise any “special category” of treatment requiring court approval prior to treatment, it is very limited and PBs do not fall within it. [47] The treatment Trust went further to submit that any such classification would amount to ‘discrimination’ and render such a classification as unlawful.[48]
Tracing the relevant case law, her Honour accepted that there is an “extremely limited” category[49] of cases concerning sterilisation[50] of girls and women that have been treated as requiring court approval on the basis that such treatment involves the deprivation of a basic human right[51] and largely arises in circumstances where the patient suffers a severe mental incapacity.[52]
Further, those cases are less than clear as to whether court referral is a legal requirement or merely good practice, a distinction to which Lieven J notes is probably without much difference.[53] What is of “critical difference” to the caselaw is the distinction between children and incapacitated adults: namely that in the case of children, their parents would normally be in a position to consent to treatment on their behalf.[54]
This is not to say that all other cases do not require court authorisation. Rather, Lieven J acknowledged “there are a range of cases where there does have to be Court approval, but this is where there is a clinical disagreement; possible alternative treatment of the medical condition in issue; or the decision is, in the opinion of clinicians, finely balanced. These are fact specific instances rather than examples of any special category of treatment where the Court’s role is required simply because of the nature of the treatment.”[55]
By finding that there is no requirement or best practice obligation to seek court approval where parental consent is given for treatment with PBs, her Honour essentially sidestepped the discrimination issue.[56]
It is worth mentioning that Lieven J was directed to the Australian cases of Re Jamie [2013][57] and Re Kelvin [2017],[58] citing a passage[59] from the latter directed to the critical and legitimate role caring and committed parents play (in combination with appropriately qualified clinicians) in making difficult treatment decisions for the child and taking that decision to the courtroom would sadly replace a holistic healthcare approach.[60] These sentiments are repeated by her Honour in concluding that “courts should be slow to displace the decision making role of committed and loving parents”[61] and there is a real risk that Courts “become too involved in highly complex moral and ethical issues on a generalised, rather than case specific, basis” if PBs were to be included in any ‘special category’.[62] While there is an academic argument supporting the gravity of the decision to commence PBs, that decision is no more enormous than consenting to a child being allowed to die, or consenting to essentially experimental treatment like PBs.[63]
Judicial concerns arising from parental consent rights
Lieven J identified two concerns arising from her conclusion that parental rights can be exercised in respect of the use of PBs in children with gender dysphoria, recognising that the mode of treatment itself has given rise to “highly polarised” clinical and controversial ethical views.[64]
Firstly, her Honour acknowledged that the structure of the Service and treatment Trusts may mean that clinical difference and disagreement will not necessarily be fully exposed.[65] Appropriate regulatory and oversight measures may temper such a risk, to which her Honour proposed an additional requirement for an independent second opinion from a qualified clinician on the basis that the same would act as a better safeguard[66] for the child rather than removing parent consent rights.
Secondly, Lieven J proposed a situation where parents are ‘reverse pressured’ into consenting to treatment by the child.[67] This situation is not unique to PBs and in any case, her Honour was satisfied that the Service and treatment Trusts are alive to the issue, which is in part remedied by the extensive and prolonged family-based approach to treatment, which necessarily involves one-to-one counselling of the patient and their parents.[68] If undue pressure was suspected, court referral would be warranted.[69]
Implications of AB v CD
Access to treatment
Lieven J repeated the precedential notion that Courts should be wary to intrude on the decision-making power of supportive and engaged parents, who are themselves best placed to make decisions about their children.[70] This decision likely means that children with loving and committed parents will no longer be barred from accessing treatment with PBs on account of the Bell competency factors (if they are in fact upheld on Appeal). It is uncontentious to assert that trans children and young persons belong to a vulnerable cohort. As with any vulnerability, having a supportive network is half of the battle. Trans children without parental support are especially vulnerable and remain disadvantaged following AB v CD.
Trans rights advocates are campaigning the NHS to reverse the hasty treatment ban it introduced following Bell.[71] It remains to be seen whether the GIDS Service Specification will be further modified post AB v CD to specifically permit parental consent in relation to the commencement (or recommencement) of treatment with PBs. If this were to occur, the outcome of the Bell Appeal is likely to have little practical effect in terms of accessing treatment.
Sterilisation
While not a focus of the judgment (and perhaps interestingly so), the only cases that came close to being recognised as a “special category” requiring court approval were those regarding sterilisation of young persons. Much of the discussion in Bell was directed to the indivisible cascading pathway of treatment which PBs are said to represent, including irreversible outcomes associated with progressing to cross-sex hormones such as infertility. The very basis of the Bell competency factors were supported by an apparent inability of children to understand fully, weigh and retain information as to future biological risks, including sterilisation and loss of sexual function. AB v CD does not engage in any discussion of the comparison between direct sterilisation and progressive infertility facing trans patients by virtue of the treatment.
English versus Australia position
In AB v CD, her Honour gave some weight to the Australian position in respect of the primacy of supportive parents in decisions as to treatment of children with PBs. While it was recognised that the two jurisdictions took a “somewhat different approach” to the nature of PBS,[72] no interrogation has been made to date as to the basis for the fundamental distinction as to treatment being non-therapeutic and therapeutic, as well as (in)divisible, respectively.[73]
Impact
Stakeholders[74] are praising AB v CD as balancing the savage biopolitical intrusion to trans healthcare created by Bell. Others are concerned that AB & CD represents a broad and dangerous reversion of the rights of the child and their autonomy generally such that a stay pending the Bell appeal is warranted.
Either position likely elevates AB v CD too high: the bounds of parental consent are well established and merely re-stated. Unsurprisingly, the judgment does not offer any contemporary perspective on a polarising biopolitical issue.
Further commentary is expected following the Bell Appeal.
This article was originally published by Australian Health Law Bulletin (June 2021). This article was written by Principal Andrew Saxton and Associate Lauren Biviano. Please contact them if you have any questions or would like more information.
Disclaimer: This information is current as of June 2021. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.