Informed consent of children in relation to medical treatment - The case of Bell and another -v-Tavistock and Portman NHS foundation Trust CA 2021
In December 2020 Keira Bell brought a claim by way of Judicial Review in the High Court against the Tavistock Clinic. She was 23-year-old woman who was prescribed puberty blockers at the age of 16 to enable her to transition to a male. She was prescribed testosterone and had surgery to remove her breasts. She later regretted starting PBs at the age of 15.
The claim was for Judicial review of the Tavistock Trust which runs the Tavistock Clinic – the only youth gender identity clinic in UK prescribing PBs to persons under 18 for gender dysmorphia.
The issue was whether a child under 16 years of age could ever be Gillick competent to make a decision regarding treatment with PBs.
The High court ruled that it was highly unlikely that a child aged 13 or under would ever be competent to consent to being treated with puberty blockers.
It also ruled that for those age 14 and 15 it was very doubtful that a child of that age could have sufficient understanding to give consent and that clinicians may have to seek authorisation from the court to decide the issue of consent for children under the age of 18.
The High Court also set down a list of things that a child would have to be able to understand retain and weigh up in order to be able to consent to treatment and intimated that clinicians should obtain court authorisation prior to commencing the clinical treatment.
Given that about 3000 children were currently being seen by the gender identity development service and a waiting list of almost 5000 at the time of the trial the Trust suspended referrals for hormone therapy until the appeal was heard.
The case came before the Court of Appeal in September 2021 and overturned the High court ruling and reaffirmed the principle established in the House of Lords decision in Gillick, that it was for the doctors and not the judges to decide on a child’s capacity to give consent in respect of proposed treatment.
However the court recognised that the question raised deep issues and that clinicians would inevitably need to take great care before recommended treatment to a child and to be astute to ensure that the consent obtained for both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment in light of evolving research and understanding of the implications and long-term consequences of such treatment.
The ruling now means that children under 16 can take puberty blockers without their parents consent provided the clinician is satisfied that they are Gillick competent. To be competent the child needs to have sufficient maturity and intelligence to fully understand what is being proposed, the risks involved and the implications of proceeding with treatment.
The courts will not get involved in the decision making process except in the most complex of cases.
Despite the decision of the Court of Appeal, Clinical negligence claims could still be pursued by those who regret starting a particular treatment and allege their informed consent to treatment was not obtained, because they were not Gillick competent to make a consent decision or because the consent process itself was not Montgomery compliant.
In such claims, records of the consent process, accounts of pre-treatment consultations and any applicable informed consent guidance will be important evidence to obtain. In addition, evidence that there was time to “think“ between stages within the treatment pathway as well as evidence of alternative treatments and availability of data to assess the impact and efficacy of the treatment being offered will also be important as evidence.
If one or both parents do not accept a child is Gillick competent or that the treatment is in their best interest it is still open to them to make a court application.