There is no doubt that gender incongruence in children can be a highly emotive subject, causing uncertainty in decision-making and a fear of litigation or regulatory action for those involved in their care. However, as with all difficult decisions relating to this patient group: ‘the best interests of the child are paramount and their welfare should always be the primary consideration.’
Many transgender adolescents seek treatment to delay puberty and to have hormones, so that their bodies can develop in line with their gender identity. However, recent political and social unrest has made access to this treatment harder than ever and we have seen any progress regress, rather than move forward.
In the UK, a person over the age of 16 can be presumed to have capacity to consent to their treatment. Unless they can be shown by the doctor to be incapable of making sound decisions, they should be able to agree to what treatment they receive.
Under 16s can show that they have capacity to make informed decisions, and they do so very often in healthcare situations. If they can understand the treatment and what will happen in the event that they do – or do not – have that treatment, then they can be fully involved in making decisions.
The wishes of the parent can – and should – be heard, but the child’s wishes and the doctor’s medical advice must be fully considered. Whatever the outcome, the best interests of the child MUST be the driving factor.
There are times when the parent, child and doctor may disagree on the best course of action.
Claire is 14 and has been involved in a very nasty car accident and is unconscious. The doctors feel she needs a blood transfusion, but her mother is saying that, due to Claire’s religious beliefs, she wouldn’t want one. Claire is unable to make this decision for herself, and her mother and the doctors are disagreeing on what is best for Claire. A decision can be made on Claire’s behalf based on her best interests by asking the courts to intervene with an emergency decision.
Kim is 15 and is pregnant. She wants to have the pregnancy terminated, but her Mother disagrees. The doctors listen to both sides of the story and assess Kim’s capacity to make decisions. They believe that Kim is Gillick Competent and has the capacity to make decisions given the information that is available to her, and the termination goes ahead.
John is 12 and has broken his arm in several places, but he is terrified of needles and is refusing to have an operation. His parents and the doctor both feel that the operation on his arm would be the best thing for him, and they go ahead and give him the anaesthetic.
Sarah is 16 and has a hereditary heart condition. Her mother wants her to be sterilised so she can’t pass it on to any children she may have, but Sarah is refusing. The doctors do not agree that the sterilisation would be in Sarah’s best interests and the sterilisation does not go ahead.
In situations where the young person is not able to make decisions, the doctors, parents and courts have a duty to make the decision that would be in the best interests of the child. That is the overriding duty – what is best for the child. Not what the parent wants, or what would protect an unborn child, or what the doctor wants – but what would result in the best outcome for the child.
Gender Incongruence has been of recent interest in the courts and the media. In the case of Bell v Tavistock, the courts were asked to evaluate the GIDS processes and answer the question: ‘Can a person under the age of 16 have the capacity to consent?’ Based on the information presented by the Tavistock, the judge determined that it was ‘highly unlikely’ that the young person could consent to treatment.
While it is not clear what ‘highly unlikely’ means in the context of capacity to consent, in reality for these patients, there are several important factors to consider:
- The GIDS clinicians failed to show evidence that the treatment improved the outcome for the children they had treated.
- The GIDS clinicians failed to show that they were confident that the treatment was safe.
- The GIDS protocols fail to rely on parental consent in cases where the child in question is unlikely to be able to make fully informed decisions for themselves.
In the case of puberty blockers, in the event that all three parties are in agreement: the child wants the blocker, the parent is in agreement and the doctor agrees that it is the right treatment – the vital question is: why is it necessary for a court to intervene?
On March 26th 2021, the issue of parental consent was brought in front of the courts. The aim was to get some clarity:
If the courts feel it is ‘highly unlikely’ that a child could consent on their own behalf, given the GIDS protocols and information, could the parent consent for them?
The court heard the case, and was asked two questions:
- Do the parents retain the legal ability to consent to the treatment?
- Does the administration of Puberty Blockers fall into a “special category” of medical treatment by which either:
i. An application must be made to the Court before they can be prescribed?
ii. As a matter of good practice an application should be made to the Court?
Having reviewed the facts, the judge determined that parents can consent on behalf of their child and that crucially puberty blockers do not fall into a special category of medicine.
Who can give parental consent?
If the child does not have the capacity to consent, someone with parental responsibility can consent on their behalf. Some examples include:
- A parent.
- A legally appointed guardian.
- The local authority designated to care for the child.
So what will this mean for those children whose care was so abruptly stopped in the wake of the judicial review?
In December 2020, NHS England swiftly amended their contract with the Tavistock clinic to require all patients to have a court order in place for them to start or continue treatment. This ruling should now give a welcome reprieve to allow the NHS to feel confident in permitting treatment without a court order if parent, child and doctor are all in agreement.
At the time of writing, GIDs outlined its position as follows: ‘The Trust welcomes the judgment we are liaising with NHS England to consider how this ruling may impact on our practice.’