We are delighted to learn of the outcome of today’s appeal in the Bell v Tavistock judicial review, which ensures that going forward, like any other young person, trans youth will be able to make their own decisions about their healthcare, providing they are deemed Gillick Competent.
We are also optimistic that the subsequent ABCD v Tavistock case brought by The Good Law Project, which allows young people with parental consent to access medical treatment, will come into force and enable the Tavistock and Portman GIDS service to move forward in its provision of care to this group.
Care provision for trans youth on the NHS
At the time of the CQC inspection of the Tavistock and Portman Clinic, which found the service to be ‘inadequate’, there were 4,600 people on the waiting list, with 26% waiting over two years for a first appointment. Add to that the delays that will be caused by effectively shuttering the service for the past nine months, and the time it will take to clear the backlog is anyone’s guess.
Young trans people MUST be able to access timely, affirming care.
We do not believe that any trans child should have to go through puberty that doesn’t fit their gender. Research supports the notion that gender affirming care results in better outcomes for trans youth, we know how to support these young people, we know that the consequences of not doing so include depression and isolation, self harm and, in the worst case scenario, suicide.
We believe that the only decision should be how to provide the best, most consistent care across the board.
The GenderGP Fund was set up to support those under the age of 16 who were directly impacted by the outcome of the Bell v Tavi ruling, we have been providing support to young people since the Fund was launched in December 2020, ranging from subsidised access to medication to family therapy and individual counselling sessions, the more we can raise the more people we can help.
Key points:
- This determination only applies to NHS GIDS.
- If GIDS services resume there will still be severe delays on providing care.
- At the time of the CQC GIDS inspection there were 4,600 people on the waiting list. How long will it take to clear that backlog?
- No trans child should have to go through puberty that doesn’t fit their gender.
- Every trans child should have the opportunity to have puberty with their peers.
- Not accessing care carries the risk of abuse and stigmatisation.
- GenderGP is able to help all patients, independently of the NHS.
- We provide support, healthcare, education – for children and their families.
- GIDS clinicians are even signposting patients to GenderGP.
Background
Gender affirming care in the UK has become a hotly debated topic, culminating in the Bell v Tavistock Judicial review which took place in December 2020. The review ruled that young trans people, under the care of the NHS Tavistock and Portman Gender Identity Development Service (GIDS), were unable to give consent to puberty blocking treatment.
This case is focused on the NHS and the service specifications followed by the Tavistock and Portman Gender Identity Development Service (GIDS) which was set up to look after people under the age of 18. The ruling applies to those under 16. As a private service, GenderGP was unaffected by the ruling and as such was able to step in and provide much needed support to those left high and dry.
The decision was appealed and in June 2021, the Court of Appeal gathered for a judicial review on the lawfulness of the NHS service specifications followed by the Tavistock. The objective of the appeal was to confirm Gillick Competence as the correct legal approach, without any additional criteria or the need for court authorisation. Importantly, the review was not about puberty blocking medication itself.
Gillick Competence
‘Gillick competence’ is used to determine whether a young person (under 16 years of age) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge. It helps people who work with children and adolescents to balance the need to listen to the wishes of a youngster, with the responsibility of keeping them safe.
The Good Law Project
Since the original December ruling the Good Law Project (GLP) has raised its own legal case (ABCD V The Tavistock and Portman and University College London Foundation Trust), which allows parents to provide consent on behalf of their child. However, despite this law overruling much of what was determined as part of the Bell v Tavistock case, anecdotal reports have suggested that despite being assessed by Tavistock clinicians and being verbally approved for endocrine treatment, trans youth are still not receiving access to puberty blockers on the NHS, despite the law stating that it could be available to them with parental consent.
Accessing care on the NHS
While NHS England may not be known for it’s agility and fast response rate, immediately following the judgement of the Bell V Tavistock case, its Service Specification for Gender Identity Development Service for Children And Adolescents was updated. Importantly, this was not updated following the outcome of the case brought by The Good Law Project.
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.”
In addition to updating the service specifications, NHS sent emails to impacted families. This was despite no impact assessment being conducted, nor any process put in place for trans youth to present their case for wanting puberty blockers to the court. This also overlooked entirely how a judge was being considered more of an authority on a healthcare procedure than the medical professional, patient and parent combined.
Gender incongruence is a recognised medical condition and those who suffer from gender incongruence are legally entitled to receive treatment under the NHS constitution within 18 weeks from referral.
Gender affirmative care
Since the December ruling, GenderGP has continued to support young people and their families, who have been desperate for help, not only in the form of hormones and puberty blockers but also by being there to answer questions and offering gender specialist counselling.
We have seen high levels of distress from families who feel abandoned by the NHS, we have heard report after report that GPs feel paralysed, not knowing if they can continue to support patients already on medication, others not knowing whether – or even how – to refer young people who are in visible distress. GIDS clinicians have been referring patients in dire need of care to GenderGP, as they know we will help.
While the outcome of today’s appeal represents a victory for trans youth, we are a long way from achieving the standards of care we should be aiming for in the UK. Timely, affirmative care is the right of every individual and we will continue to campaign for improvements until our young trans people are treated the same as any other person accessing care in the UK today, and around the world.
If you would like to talk to someone about your child, sessions with our gender specialist counsellors are usually available within 24 hours.
If your child needs access to medical care click here to access our services.