Young persons’ consent for cross-sex hormone treatment
1 January 2025
O v P and Q [2024] EWCA Civ 1577
(Jeremy Hyam KC and Alasdair Henderson of 1 Crown Office Row represented the mother in this case)
This was an appeal from a decision in the Divisional Court by Judd J in April 2024. The case raises a question at the core of the transgender debate involving young people: consent.
The young person at the centre of this litigation is now 16 years old. He was born female and started to identify as male in 2020 at the age of about 12.
His parents were estranged. In these circumstances his mother appealed against the refusal of her request for an adjournment of proceedings in which she sought a prohibited steps order and a best interests declaration in relation to her child, pending an assessment being undertaken by a private gender dysphoria clinic (Gender Plus), the first private gender dysphoria hormone clinic in the UK.
It was accepted that, now the young person was by now 16, no Gillick competence question arose (see Sir James Munby at [55] in An NHS Trust v. X [2021] EWHC 65 (Fam), [2021] 4 WLR 11, and MacDonald J at [48]-[49] in GK and LK v. EE [2023] EWCOP 49). It was also accepted that the young person was “impressive, hardworking and intelligent” and had no mental health problems.
Puberty Blockers and Cross-Sex Hormones: Policy Background
As Vos MR noted, a number of events coalesced to make this case a particularly sensitive one at the time of this appeal.
(i) the Cass Interim Review in 2022 led to the closure of the Tavistock clinic that had been in issue in Bell v. Tavistock;
(ii) on 12 March 2024, NHS England published a clinical policy concluding that there was not enough evidence to support the safety or clinical effectiveness of puberty blockers to make the treatment routinely available (outside a research protocol);
(iii) as the first instance judge recorded at [58], NHS Scotland had announced before the hearing that persons under 18 would not be prescribed cross-sex hormones;
(iv) on 21 March 2023, NHS England published a clinical commissioning policy laying down stringent eligibility and readiness requirements to be met before cross-sex hormones could be administered to those over 16;
(v) on 9 April 2024, NHS England wrote to all NHS gender dysphoria clinics asking them to defer offering first appointments to those under 18 “as an immediate response to Dr Cass’s advice that ‘extreme caution’ should be exercised before making a recommendation for [cross-sex hormones] in [children]”;
(vi) on 10 April 2024, the Cass Review was published*; and
(vii) on 11 December 2024 (the day before the hearing before the Court of Appeal), the government announced that the temporary embargo on the use of puberty blockers would be made indefinite (subject to a review in 2027).
* For the purposes of this case, the mother highlighted that the Cass Review had called into question the quality of the evidence on which hormone treatments for adolescents are based. Dr Cass says at page 13, for example, that “[t]he reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress”. Moreover, Dr Cass highlights new evidence about brain maturation continuing into the mid-20s, whilst it was originally thought to finish in adolescence. Dr Cass recommended that puberty blockers should only be available within a research protocol, and that recommendation has now been implemented.
The judge at first instance had said first that, whilst the findings of the Cass Review might turn out to be very significant, she did not think they justified her departure from Bell v. Tavistock and from Lieven J’s decision in AB v. CD and Tavistock [2021] EWHC 741 (Fam) (AB v. CD), which the Court of Appeal approved in Bell v. Tavistock.
Arguments before the Court
The father sought to terminate the proceedings begun by the mother on the ground that they were causing the young person significant distress.
The mother contended that the proceedings should be adjourned because the legal and regulatory landscape for gender dysphoria treatment was changing rapidly; the Cass review had only been published a week before the hearing before the judge; and Gender Plus was a private provider whose practices and procedures were diverging from the NHS approach. In these circumstances, it behoved the court to keep an eye on a case of this kind in a time of flux. The mother also argued, though not strenuously, that cases concerning treatment for gender dysphoria should be regarded as being in in a special category requiring judicial oversight wherever there was less than complete unanimity. If necessary, the mother submitted that the Court of Appeal should depart from its recent decision in R (Bell) v. Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416.
The judge below had concluded that, while the Cass review might be significant, it did not justify a departure from the decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All E.R. 416, [2021] 9 WLUK 157, in which it was held that treatment with puberty blockers should not be distinguished from the consideration of contraception in Gillick, and that questions of Gillick competence were for doctors, not the courts. Judd J held there was no realistic basis upon which to override the young person’s consent to treatment by a regulated provider and that there was no legitimate purpose in adjourning the case.
Continue reading →
Recent comments