Consent to puberty blockers after the Keira Bell case

Who should decide whether a trans child has puberty blockers? The child themself? Parents, doctors, lawyers? Should anyone be able to prevent the treatment?

After the Bell case, will doctors continue to prescribe puberty blockers for trans children?

Doctors can do things which, if anyone else did them, would be assault, because they are experts, and they intend their patients’ good. I don’t have a particularly rosy view of doctors. A former GP told me once that part of the job of the GP was to protect patients from over-eager specialists, who might want to poke about and see what happens- might be too eager to give treatment, rather than do nothing.

With trans children, however, doing nothing is a moral choice. The trans child, given puberty blockers (PB) and, later, cross sex hormones, CSH, will pass much better than one who had a normal puberty and then takes CSH later. This can make a significant difference to their life chances. In the judgment, if not in the evidence led, there was far too little weight given to the benefits of PB. It was only stated to be alleviating immediate distress.

The judges found on the facts that PBs almost always lead to CSH, and therefore at the time of prescribing PB the child should be aware of the consequences of CSH. An appeal can’t just argue this is factually incorrect, it must show that the judges were not entitled to decide that. A new NHS protocol could however insist on more in-depth assessment at the time CSH is considered: is the child aware of the downsides? Any application to the court to start PB for a child could refer to such a protocol. While in this case on the evidence heard, the judges decided a child could not consent to PB because CSH afterward was practically automatic, that does not necessarily affect any case in the future.

The judges based the doctors’ ability to prescribe PB on the consent of the child. They then said the child was probably not capable of understanding what it would be like to be unable to have children, or know whether they would want their own children later, and therefore probably could not consent to treatment that would likely make them permanently infertile. They cite cases, paras 105-124 about a child’s capacity to consent, where it is not at all clear that a judge would be better placed to decide than a doctor, as they quote Lord Scarman confirming:

“The truth may well be that the rights of parents and children in this sensitive area are better protected by the professional standards of the medical profession than by “a priori” legal lines of division between capacity and the lack of capacity to consent since any such general dividing line is sure to produce in some cases injustice, hardship, and injury to health.”

These are the cases they considered:

Gillick: In 1986, government guidance said a GP could prescribe contraception to a girl aged 15 without her parents’ involvement, and Victoria Gillick, a Christian who may or may not have had reason to be concerned her daughters might conceal contraception from her, challenged that. The male involved would be committing an offence, and it may be better for the child not to have sex; and prescribing contraception might make sex more likely. There are a wide variety of moral views on this, though to me contraception reduces the risk to the girl. The court decided that the GP could prescribe “if she had sufficient maturity and intelligence to understand that nature and implications of the proposed treatment and provided that certain conditions were satisfied” (para 105).

Re W (a Minor): a 16 year old girl with anorexia nervosa refused treatment, and the court authorised the treatment, saying anorexia is “capable of destroying the ability to make an informed choice”.

Re L. L was 14, a Jehovah’s Witness who would not consent to a blood transfusion. The court ordered the treatment without her consent. The judge said “It may be that because of her belief she is willing to say, and to mean it, ‘I am willing to accept death rather than to have a blood transfusion’,” but that did not mean she was capable of making the right decision.

Re S. S was a mother under the age of 16. Could she consent to adoption, when she might never see her child again, and the child would legally cease to be her child? The judge quoted, “a person should not be held unable to understand the information relevant to a decision if he can understand the explanation of that information in broad terms and simple language…”

I would have compelled L to take a blood transfusion. I would allow a child to surrender her child, and it might be right to pressure her to do so. But these are difficult moral arguments.

The power to consent is not necessarily the best way to consider these moral issues, but it is the legal tool the court assessed.

It is clear to me that it is better to be a transitioned trans person than a non-transitioned trans person, and better for that person to pass than not. Unfortunately the cases of detransitioners, who are now organising, angry, and considering legal actions for damages, indicate that expert doctors cannot be sure their patient will intend to live in the acquired gender life-long.

The judges then made a statement of the law, on the basis of which they decided the case. Here it is.

125. In our view, the following principles can be derived from the cases to which we have referred:

126. First, the question as to whether a person under the age of 16 is Gillick competent to make the relevant decision will depend on the nature of the treatment proposed as well as that person’s individual characteristics. The assessment is necessarily an individual one. Where the decision is significant and life changing then there is a greater onus to ensure that the child understands and is able to weigh the information, see Re S at para 60.

127. Secondly, however, that does not mean that it is not possible for the court to draw some lines. The Trusts themselves accept that a 7 year old being treated with PBs for precocious puberty cannot give informed consent and his or her parents must give that consent because of the young age of the child concerned and the nature of the treatment.

128. Thirdly, efforts should be made to allow the child or young person to achieve Gillick competency where that is possible. Clinicians should therefore work with the individual to help them understand the treatment proposed and its potential implications in order to help them achieve competence.

129. Fourthly, however, that does not mean that every individual under 16 can achieve Gillick competence in relation to the treatment proposed. As we discuss below, where the consequences of the treatment are profound, the benefits unclear and the long-term consequences to a material degree unknown, it may be that Gillick competence cannot be achieved, however much information and supportive discussion is undertaken.

130. Fifthly, in order to achieve Gillick competence it is important not to set the bar too high. It is not appropriate to equate the matters that a clinician needs to explain, as set out in Montgomery, to the matters that a child needs to understand to achieve Gillick competence. The consequence of Mr Hyam’s approach would be significantly to raise the bar for competence and capacity, which would be contrary both to the common law and to a child’s Article 8 rights and the importance of supporting individual autonomy.

131. We adopt the language of Chadwick LJ in Masterman-Lister v Brutton and Co (Nos 1 and 2) [2003] 1 WLR 151: a person should be able to “understand an explanation of that information in broad terms and simple language”, see Re S at para 36. Although this was said in a case that concerned an adult’s capacity, in our judgment the same approach should be applied to a case concerning Gillick competence. The child or young person needs to be able to demonstrate sufficient understanding of the salient facts, see Re S at para 60.

132. Sixthly, we agree with Mr Skinner, that in deciding what facts are salient and what level of understanding is sufficient, it is necessary to have regard to matters which are those which objectively ought to be given weight in the future although the child might be unconcerned about them now. On the facts of this case there are some obvious examples, including the impact on fertility and on future sexual functioning.

The judges arrogate to themselves the right to decide whether treatment is justified. The ability to consent depends on “the nature of the treatment proposed”, and what the judges think of it. Contraception for a 15 year old girl- yes. PB and CSH which will make the child permanently infertile- no. Sometimes, treatment is so obviously appropriate- PB for a child aged 7 with precocious puberty- that the child’s consent is irrelevant, and the parents’ sufficient. Possibly a treatment is so questionable -in the judgment of the court, though not of trans people and our allies- that a child will never be able to understand enough to consent to the judges’ satisfaction.

I hope trans people will get through on the fifth principle- consent must be in theory possible, because of the right to individual autonomy. However the sixth principle, that the child must understand the importance to adults of sexual functioning and fertility, was the killer in this case. See para 139:

It will obviously be difficult for a child under 16 to understand and weigh up such information. Although a child may understand the concept of the loss of fertility for example, this is not the same as understanding how this will affect their adult life. A child’s attitude to having biological children and their understanding of what this really means, is likely to change between childhood and adulthood. For many children, certainly younger children, and some as young as 10 and just entering puberty, it will not be possible to conceptualise what not being able to give birth to children (or conceive children with their own sperm) would mean in adult life. Similarly, the meaning of sexual fulfilment, and what the implications of treatment may be for this in the future, will be impossible for many children to comprehend.

144… There is no age appropriate way to explain to many of these children [under 16] what losing their fertility or full sexual function may mean to them in later years.

147… We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.

That seems to be what the NHS has decided, at least for the moment. The trans child will have to persuade not only the gender clinic, but also a judge.

The factual decision that anyone prescribed PB almost certainly went onto CSH gives a chink of light. If the doctors can show that there will be a further assessment before CSH, with further assessment of capacity to consent, they might get round this case. It is CSH that finally takes away fertility and sexual functioning, and not PB.

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