Bell and another v Tavistock and Portman NHS Foundation Trust (University College London Hospitals NHS Foundation Trust and Others intervening)
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWCA Civ 1363 |
| Court | Court of Appeal (Civil Division) |
2021 June 23, 24;Sept 17
Children - Medical treatment - Consent - Puberty-blocking drugs prescribed to children experiencing gender dysphoria - Court making declaration specifying matters child having to understand in order to have requisite competence to consent to puberty blockers - Whether declaration improperly restricting established test of competence
The defendant NHS trust operated a gender identity development service providing specialist care to children and young persons up to the age of 18 who experienced gender dysphoria. After assessment the service might refer such persons to one of two other NHS trusts (the first and second interveners) whose clinicians might be prepared to undertake medical interventions, including the administration of certain hormone or puberty-blocking drugs to suppress the physical developments which would otherwise occur during puberty. Between 2011 and 2014 such drugs started to be prescribed for those aged 12 to 15 and in mid-puberty under an approved early intervention research study, as the first of three possible stages of physical intervention; the second stage being the prescription of cross-sex hormones from around the age of 16, and the third stage being gender reassignment surgery for those aged over 18. The results of the research study, and the efficacy of such treatment for children and young persons with gender dysphoria, had yet to be published. For the year 2019/2020, 161 persons under the age of 18 were referred by the defendant’s service for puberty blockers, 95 of whom were aged 10 to 16. It was the practice of the defendant, through its service, to require the informed consent of children and young persons recommended for such treatment. The first claimant had been born female and, at about the age of 15, had been prescribed puberty-blocking drugs to halt the process of developing female sexual characteristics. She eventually transitioned to a male, having taken cross-sex hormones to promote male characteristics and undergone surgery, but later wished to revert to being female. The second claimant, the mother of a girl aged 15, was concerned that her daughter might be referred to the defendant’s service and be prescribed puberty blockers. By a claim for judicial review, the claimants challenged the defendant’s practice of prescribing puberty-blocking drugs to children under 18 as being unlawful on the ground, inter alia, that persons below that age lacked competence to give valid informed consent to the treatment. Although the Divisional Court found no illegality in the defendant’s policy or practice and held that children under 16 and young people aged 16 and 17 could consent to embarking on a course of puberty blockers, it went on to declare that the relevant information that a child under 16 would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers were: (i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking puberty blockers went on to cross-sex hormones and, therefore, that they were on a pathway to much greater medical interventions; (iii) the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery; (iv) the fact that cross-sex hormones might well lead to a loss of fertility; (v) the impact of such hormones on sexual function; (vi) the impact that taking that step on that treatment pathway might have on future and lifelong relationships; (vii) the unknown physical consequences of taking puberty blockers; and (viii) the fact that the evidence base for the treatment was as yet highly uncertain (“the declaration”). The court further stated that it was highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers and doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blocking drugs, and that clinicians might well consider that it was not appropriate to move to treatment, including puberty blockers, without the involvement of the court and it would be appropriate for clinicians to involve the court in any case where there might be any doubt about the long-term best interests of a 16- or 17-year-old (“the guidance”). The defendant appealed against the declaration and submitted that the guidance given by the Divisional Court was wrong in law.
On the appeal—
Held, allowing the appeal, that although the court had a broad discretion to grant declaratory relief in public law judicial review proceedings enabling it to make an advisory declaration in appropriate cases, the present case was not a claim for such an advisory opinion or declaration, but a failed claim for a declaration that required the intervention of the court exercising its “best interests” jurisdiction before puberty blockers could be prescribed; that the declaration ought not to have been granted, since it covered areas of disputed fact, expert evidence and medical opinion, turned expressions of judicial opinion into a statement of law and stated as law facts which were both controversial and capable of change, and would require clinicians to suspend or at least to temper their clinical judgement and defer to what amounted to the clinical judgment of the court on which key features ought to inform an assessment of competence; that the effect of the guidance was to require applications to the court where there was no legal obligation to do so, it being inappropriate for the Divisional Court to give guidance as to when such an application would be appropriate; that it had also been inappropriate for the court to reach general age-related conclusions about the likelihood or probability of different cohorts of children being capable of giving consent to the administration of puberty blockers; and that, accordingly, by making the declaration accompanied by guidance requiring (probably frequent) court intervention, the Divisional Court had placed an improper restriction on the established test of competence and the declaration would be set aside (post, paras 69–72, 74–75, 80, 84, 85–89, 91, 94).
Per curiam. Applications to the court may be appropriate or necessary in specific difficult cases where there are disputes between one or more of clinicians, patients and parents (post, paras 89, 94).
The following cases are referred to in the judgment of the court:
AB v CD
An NHS Trust v X
An NHS Trust v Y
Gillick v West Norfolk and Wisbech Area Health Authority [
Montgomery v Lanarkshire Health Board
R v Board of Visitors of Hull Prison, Ex p St Germain (No 2) [
R v D [
R (A) v Secretary of State for the Home Department
R (Axon) v Secretary of State for Health
R (Bayer plc) v NHS Darlington Clinical Commissioning Group
R (Burke) v General Medical Council
R (Watkins-Smith) v Aberdare Girls High School
S (A Child) (Child Parent: Adoption Consent), In re
W (A Minor) (Medical Treatment: Court’s Jurisdiction), In re [
The following additional cases were cited in argument or referred to in the skeleton arguments:
A Local Authority v JB
An NHS Trust v A, B, C and A Local Authority
B v A Local Authority
Bank Mellat v HM Treasury (No 2)
Birmingham City Council v D
C (Adult: Refusal of Treatment), In re [
CS (A Child), In re
D (A Minor) (Wardship: Sterilisation), In re [
DB v Chief Constable of Police Service of Northern Ireland
E (A Child: Medical Treatment), In re
Gard (A Child) (Child on Life Support: Withdrawal of Treatment), In re
Glass v United Kingdom (Application No 61827/00) (
JT v First-tier Tribunal (Social Entitlement Chamber)
Jamie, In re
Kelvin, In re
King (A Child), In re
L v Lithuania (Application No 27527/03) (
MB (Medical...
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