In December 2020, the Bell V Tavistock Judicial Review court case judgement was given. As a result of the determination, which stated that the court felt it was unlikely that young people could consent to treatment, the NHS suspended all referrals from the psychology department at the Tavistock to the medical department at UCLH. This withdrew the option for young people or their parents to give consent, to puberty blocking treatment.
In March 2021, the Good Law Project (GLP) raised its own legal case (ABCD V The Tavistock and Portman and University College London Foundation Trust), which determined that parents could consent to treatment on behalf of their child.
Despite this, trans youth are still not able to access puberty blockers on the NHS.
Here we outline the rules and examine some of the sources of confusion around what is and what is not allowed, according to the law.
Background
The Tavistock and Portman Trust is commissioned by NHS England to provide its Gender Identity Development Service (GIDS). This is the only NHS service in England and Wales offering gender-related care to young transgender people under the age of 17.
Puberty blockers are a recognised treatment that suspend pubertal development that can cause severe distress to young trans teenagers. Puberty blockers are also given alongside gender-affirming hormones to suppress natural hormone production while the hormones are replaced with those that match the young person’s gender identity.
As numerous articles have highlighted, waiting lists for the first appointment at GIDS are now up to three years – even though the NHS constitution has a maximum agreed waiting time of 18 weeks. These waiting periods for a first appointment are clearly unacceptable, as during that time puberty development continues to progress. Many young people experiencing body dysphoria, suffer severe mental distress as a result of these delays.
The reality is that many young people reach adulthood before they are seen by GIDS, meaning they never get to see an expert to help them with their gender-affirming care as young people. Once they ‘age out’ of GIDS they are moved onto the waiting list of one of the already oversubscribed adult Gender Identity Clinic (GIC) services, which have up to five year waiting lists for the first appointment.
Bell V Tavistock – December 2020
In December 2020 the Bell V Tavistock Judicial Review was heard. This was a case brought by Keira Bell, a 23 year old woman who had been a patient of the Tavistock clinic. She had transitioned and been prescribed puberty blockers at the age of 16, and testosterone at age 17. Keira Bell continued on to consent to top-surgery as an adult, but subsequently ‘detransitioned’ and took legal action claiming that young people shouldn’t be able to consent to puberty blockers under the current GIDS protocols.
The claimants argued that a child under 18 years was not competent to give informed consent to the administration of blockers under the GIDS system. They argued that the information provided by GIDS was insufficient to ensure informed consent; and that the absence of procedural safeguards and the inadequacy of information provided was an infringement of children’s rights under Article 8 of the European Convention on Human Rights.
The subsequent judgement held that it was highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with puberty blockers. The court also expressed doubt that children aged 14 and 15 years could ever have sufficient understanding of the long-term risks and consequences of treatment to give informed consent.
A distinction was drawn between children under 16 years and children over 16 years, upholding the presumption that 16+ year olds have the ability to consent to medical treatment. However, even in children over 16, the court queried whether there should be judicial oversight where such treatment takes place. ‘We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.’
The judgement was passed even in instances where:
- there is a doctor confirming that puberty blockers are in the best interest of the young person, and
- there is a young person consenting and saying ‘yes, this is what I want’ – of which many may be considered Gillick Competent – and
- parents also consent to their child receiving this treatment.
Immediately following the judgement of the Bell V Tavistock case NHS England updated its Service Specification for Gender Identity Development Service for Children And Adolescents, basically preventing any medical intervention for trans youth. The NHS put in requirements that all patients would need a court order to access treatment.
The amendments include the following:
- Children under the age of 16 cannot be referred by the GIDS to paediatric endocrinology clinics for puberty blockers unless a “best interests” order has been made by the court for the child in question.
- In respect of children under the age of 16 who are already on puberty blockers as a result of a referral from GIDS, GIDS must carry out a full clinical review of each child. The timeframe for clinical reviews will be confirmed by 22 December 2020.
- If, upon review, the lead clinician treating the child who is under 16 determines that it is in the child’s best interests that either (a) the child should continue with puberty blockers and/or (b) the child should be administered cross sex hormones (either with or without puberty blockers), the lead clinician (through their NHS provider) must make a “best interests” application to the Court for final determination of the child’s needs.
- If, upon review, the lead clinician treating the child who is under 16 determines that it is not appropriate to make a “best interests” application to the court, the lead clinician must make arrangements for puberty blockers to be withdrawn within a clinically appropriate timeframe and within safe clinical arrangements.
- GIDS must ensure that appropriate psychosocial support and psychological therapies are available to patients who are removed from puberty blockers, and to their families and carers.
- For children aged 16 and 17, no court intervention will be necessary before treatment can take place provided that the child has mental capacity, the lead clinician considers the treatment to be in the patient’s best interests, and there is no parental dispute about the intervention. However, where the 16 or 17 year old is considering the administration of cross sex hormones or is already receiving cross sex hormones, the child’s lead clinician is required to review every such child’s individual circumstances, and to consider an application to the Court (through their NHS provider) for final determination of the child’s needs if there is doubt about the child’s “best interests.”
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ABCD V Tavistock – March 2021
In March 2021 the Good Law Project (GLP) representing a young trans person and their family went to family court to ask whether parents of trans youth could legally consent on behalf of their child, in the same way, that parents already do for other healthcare procedures and medication. The family court decided that those with parental responsibility could consent on behalf of their child to puberty blocking treatment.
This was a welcome development for those young people with supportive parents, but failed to address the needs of those young people who despite, being Gillick competent, don’t have parental support at home or live in hostile environments.
And yet, despite the quick response from NHS England following the Bell V Tavistock judgement, no similar action was taken to update the service specifications to allow parents to consent to treatment and referral to the endocrinology service. The Good Law Project issued an urgent request for the NHS to clarify its position in a statement issued on March 26th, 2021 it stated:
‘We have given NHS England 7 days to confirm that, in cases where there is parental consent, changes will be made to the Service Specification to remove the need for the Tavistock to go to court in all existing cases – and to allow new cases to commence treatment.’
The statement also said:
‘The Judgment made it clear that, where a clinician at the Tavistock is of the view a trans child will benefit from puberty blockers, parents have the right to consent on behalf of the child. In light of this, it would clearly be unlawful to continue to prevent new patients from receiving puberty blockers. The rationale for the ban that was introduced following Bell – no one but the Court can validly give consent – has entirely fallen away.’
At the time of writing, no response has been published.
Following the outcome of ABCD v Tavistock in March, NHS England updated its website to introduce the requirement that all clinician assessments referring young people to endocrine services for puberty blockers should first be assessed by an independent panel.
NHS services for gender variant youth have also come under further scrutiny following negative feedback from the Care Quality Commission (CQC) review of the Tavistock and Portman service with the 2021 launch of the Cass Review, which is currently underway.
The Cass Review, an independent Review of Gender Identity Services for Children and Young People, seeks to ensure that children and young people who are questioning their gender identity or experiencing gender dysphoria, and who need support from the NHS, receive a high standard of care that meets their needs and is safe, holistic and effective.
Healthcare for trans youth is in a state of crisis with a population of young patients who are essentially unable to access public care. Private services such as GenderGP, which were not subject to review in proceedings against the Tavistock and are therefore not impacted by the ruling, offer a safe and effective bridging service for such patients who should be able to access this care on the NHS.
The model of healthcare for trans youth needs to follow the path set by GenderGP. With safe and effective informed consent models that facilitate open discussion and information-sharing, so that vital, accessible healthcare can be provided in a timely manner.
We are optimistic, following our consultations with Hilary Cass, that the Cass Review will fully assess the place at which healthcare for trans youth has arrived, on the NHS, and that it will recommend a more timely, compassionate, patient-centred approach. In the interim, GenderGP is standing by ready to help anyone who needs access to gender affirming care.
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