“Let the Doctors Decide”
27 September 2021
In Bell and A v Tavistock and Portman NHS Trust and others  EWCA Civ 1363 the Court of Appeal advised judges to avoid formulating policy in an area of social and moral complexity.
Ever since the Divisional Court restricted the medical treatment of children experiencing gender dysphoria at the end of last year (see R (on the application of Bell and A) v Tavistock and Portman NHS Trust and others), discussed on this blog here), the decision has provoked heated debate. Some lamented the distress of young sufferers deprived of treatment. Others applauded limits they said would prevent irreparable harm. On 17 September 2021 the Court of Appeal reversed the decision, but the dispute will continue to rage both in and outside the Courts.
The first Claimant, Keira Bell, is a former patient of the Tavistock who was prescribed puberty blockers at 16 to delay the onset of female sexual characteristics. She transitioned to a male using cross-sex hormones, had a double mastectomy, and then changed her mind, regretting the “brash decision” she said would negatively affect the rest of her life. Her case – accepted by the Divisional Court — was that the “innovative” and “experimental” nature of the treatment, specifically the use of puberty blockers, made it unlikely a child could validly consent to it.
The current law on consent, set out in the leading case Gillick v West Norfolk and Wisbech Health Authority , holds that a child can validly consent to treatment if they have sufficient maturity and intelligence to understand fully what is proposed (known as “Gillick competence”).
The Divisional Court in Bell did not find the prescription of puberty blockers in the absence of court order to be unlawful and it rejected the Claimants’ argument that information about treatment provided to potential recipients was misleading or inadequate. It was unconvinced, however, about the ability of children to understand and weigh the information and thereby give valid and informed consent.
Relevant information, said the Divisional Court, would include “the fact that the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones”, that these may lead to a loss of fertility and sexual function, and that the evidence base for this treatment is “as yet highly uncertain”. There was no age appropriate way to explain this, said the Court. Accordingly it was “highly unlikely” a child under 13 would be competent to consent and very doubtful a 14 or 15 year old could. 16-18 year-olds were presumed to have capacity but where there was any doubt about treatment being in their best interests authorisation from the Court would be advisable. In practice, noted the Court of Appeal, this declaration as interpreted by clinicians as a requirement to obtain the Court’s permission to treat.
The Court of Appeal allowed the appeal and dismissed the claim for judicial review, stating that it was impermissible for the Court below to issue a declaration and guidance in circumstances where it did not find illegality. Advisory declarations were known but not, it stated, where a claim of illegality had failed. The Court below had also imposed an “improper restriction” on the test of Gillick competence by departing from the principle that children under 16 could make their own decisions if assessed as competent by their treating clinicians.
In essence, the Court of Appeal found that the judges below had stepped into the shoes of clinicians: it is “for doctors to decide on competence not judges”.
It is a matter of clinical judgment, said the Court, tailored to the patient in question, how to explain matters to ensure that the giving of consent is sufficiently informed. The declaration, however, came close “to a checklist or script that clinicians are required to adopt for the indefinite future”.
Some factors included were statements of disputed fact, others “beg questions to which different clinicians would give different answers”. In other words, the declaration was problematic due to its rigidity but also because it covered areas of disputed fact, expert evidence and medical opinion and “implied factual findings which the Divisional Court was not equipped to make”.
The Divisional Court had explicitly stated that that it was not “the court’s role to judge the weight to be given to various different experts”. It also reminded itself (correctly said the Court of Appeal) that its role was not to “determine clinical disagreements between experts about the efficacy of treatment”. That was for NHS and regulatory bodies. But despite these statements, the Divisional Court did make factual findings and seek to resolve matters of clinical dispute in ruling that:
- treatment was experimental (in the sense that its long-term consequences are unclear); and
- the “vast majority” of patients prescribed puberty blockers went on to receive cross sex-hormones.
This was impermissible, according to the Court of Appeal. “Judicial review,” it said “is not the forum to resolve contested issues of fact, causation and clinical judgment” and the Court was wrong to decide between the evidence of competing experts without it being properly admitted or tested in cross-examination.
The evidence of the Tavistock clinic (and the Trusts to which patients were referred) was that the treatment was safe, internationally endorsed, reversible and subject to a rigorous assessment process. Allowing the declaration to stand would require clinicians to suspend or temper their clinical judgment and defer instead “to what amounts to the clinical judgment of the court” when deciding if a child could validly consent to treatment.
The guidance was also said by the Court to have been “insufficiently sensitive to the role of parents in giving consent”. On this point, the Court referred approvingly to Lieven J’s decision in AB v CD  (some months after the Divisional Court’s judgment, to which she contributed). In that case she held that unless the parents were overriding the wishes of the child, they could consent on the child’s behalf to puberty blockers without the need for a best interests application to the Court. Children may have difficulty understanding the consequences of treatment, it was said, but their parents would not.
Throughout the Judgment, in different ways, the Court pressed for judicial restraint. Controversial ethical issues which attract polarised views “are best assessed in a regulatory and academic setting and not through litigation”, it said. Moreover, as advised by Lord Philips in R (Burke) v General Medical Council , Courts should avoid expressing opinions in areas of social and ethical controversy where there is no specific issue to resolve between the parties. The Divisional Court in Bell fell into this error.
The Court of Appeal’s conclusion was clear: applications to the Courts may be appropriate in specific, difficult cases but it was wrong to give guidance to clinicians about when such circumstances may arise. Having said that, the Judgment ends with its own counsel of caution. Clinicians will “inevitably take great care” before recommending treatment to a child, said the Court, and will be “astute to ensure” consent is properly informed by the advantages and disadvantages of proposed treatment in light of “evolving research” and any long-term consequences it may have.
Somewhat ominously it goes on to warn: “[C]linicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issues can be tested” and, in that vein, notes a January 2021 Care Quality Commission report critical of aspects of obtaining consent at the Tavistock clinic.
Regardless of the outcome (and leaving aside the prospect of a further appeal), Ms Bell’s litigation has shone a bright light on a controversial and complex area of medical practice. As figures before the Court show, treatment for gender dysphoria among children is increasing: in 2009 there were 97 referrals to the Tavistock clinic; in 2019 there were 2,519. Given these figures, Ms Bell is unlikely to be the only young person who has changed their mind about treatment. If this is right, a clinical negligence claim is just a matter of time. Unlike proceedings for judicial review, that will provide a forum where the court is required to make factual findings, form judgments about clinical practice, and resolve disputes between experts. On that occasion, the judges will have to decide.
Marina Wheeler QC is a barrister at 1 Crown Office Row.