A recent High Court ruling that children under 16 are unlikely to be able to give informed consent to puberty-blocking drug treatment has brought the issue of gender dysphoria and consent to treatment by children, to the forefront.
The Negligence Claimline experts examine the implications of the judgment in Bell v the Tavistock and explains when children can give informed consent to treatment.
In the case brought against the Tavistock and Portman NHS Trust, claimant Keira Bell, argued that the Tavistock’s gender-identity development service should have challenged her more over her decision to transition to a male before prescribing her puberty blockers when she was 16.
Before this, the general presumption in law was that a child under the age of 16 lacked sufficient mental capacity to make decisions about their own medical treatment, as determined by the case of Gillick v West Norfolk & Wisbeck Area Health Authority (1986).
However, the court ruled in Gillick, that contraception can be prescribed to under-16s without parental consent if the child has sufficient maturity and intelligence to comprehend the implications. This is known as Gillick competence. Parents are able to consent on behalf of children under the age of 16 if they lack Gillick competence.
In Bell v the Tavistock, the High Court considered whether children who express a desire to change their gender can give informed consent to puberty-blocking treatment. Such drugs postpone puberty until they reach the age of 16 when they can be treated with cross-gender hormones.
The court noted that such treatment is relatively new, and their long-term effects have not yet fully manifested themselves, but it is generally understood that the consequences to such treatment are life-changing, including issues with sexual functionality and conception.
Children as young as 10, many of whom are suffering psychological distress as a result of their gender dysphoria, have sought puberty-blocking treatment, and until the ruling in Bell, had been considered Gillick competent to consent.
The court in Bell heard arguments that children’s brains are not fully developed when they are under the age of 18 and this would affect their decision-making. The court concluded that it is unlikely a child under the age of 16 would be competent to give informed consent for puberty-blocking treatment.
The court acknowledged that in respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment.
However, Dame Victoria Sharp, sitting with Lord Justice Lewis and Mrs Justice Lieven, held that ‘given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment’.
The implications of this decision are that in the future doctors will have to apply to the court for leave to proceed with the treatment.
For confidential legal advice on behalf of yourself or a child on this or any other medical negligence issue, contact us today for a confidential discussion with one of our specialist medical negligence solicitors on 01245 253214 or email [email protected]
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.