Dr Sandra Duffy

In the case of AB v Tavistock and Portman NHS Trust, heard before the High Court of England and Wales (Family Division), a challenge was made to the findings of the Divisional Court in Bell v Tavistock and Portman NHS Trust (previously discussed here).

AB and CD, who are the parents of XY, a transgender girl, sought permission from the court to consent to puberty blockers on XY’s behalf without requiring the intervention of a judge and the obtaining of a best interests order.

My write-up of the Bell judgment, linked above, contains the background to the cases, but in brief: puberty blockers (PBs) are the form of gender-affirming healthcare prescribed to young trans people aged 17 and under. The hormonal treatment prevents trans children and teenagers from experiencing pubertal changes appertaining to their sex assigned at birth.

These changes can be very distressing for young people and lead to problems in mental health and social development, particularly for young people who are growing up in their true gender from childhood and who are suddenly thrown into a puberty which does not accord with that gender.

Puberty blockers are sometimes challenged as an experimental treatment, a point which was made much of in the Bell judgment, but the international evidence base for their use shows them to be both safe and reversible should the child decide not to proceed with their transition. (Controversially, the evidence on the safety of puberty blockers which was presented in the Bell case, and which is accepted in AB, was very weak and did not draw sufficiently on international best practice – a decided oversight.)

AB v Tavistock and Portman NHS Trust

AB differs from Bell in that the question raised before the court here is whether parents can consent to puberty blockers on their child’s behalf, whereas Bell concerned the competence of the child themself. Bell is currently under appeal (to be heard in June), and Lieven J did not propose to address the issues therein, in AB. It is to be noted that Lieven J was of the panel of the Divisional Court which decided Bell, and, as she states, she “self-evidently entirely agree[s] with its analysis”. (9) Bell was therefore not to be re-litigated in this judgment.

XY, the child in question in AB, is a transgender girl aged 15. She had fully transitioned socially and had been a patient at the GIDS service since she was 10. She is currently taking puberty blockers and cites her potential distress at having to undergo male puberty in her letter to the court. She was declared competent to consent to the treatment. Following the judgment in Bell, the NHS England “issued an amendment to the Service Specification for GIDS requiring that each patient currently receiving treatment should be assessed and a ‘best interests’ application should be made to the court in the event that the clinical review determined that the patient should continue with PBs.” (24) XY’s clinical review would take approximately three months; meanwhile her next prescription is due in April. XY, her parents, and her clinicians, are unanimous that she should continue receiving her PBs.

The issues before the court were as follows:

1. “Do the parents retain the legal ability to consent to the treatment?

2. Does the administration of PBs fall into a “special category” of medical treatment by which either:

   1. An application must be made to the Court before they can be prescribed?

   2. As a matter of good practice an application should be made to the Court?” (34)

Lieven J notes the “central, fundamental and critical role of parents in their children’s lives, and decision making about their lives” (39) and states that this includes the role of granting consent for medical treatment (42) including “the most serious of all decisions” (43). She cites the Children Act 1989, the UN Convention on the Rights of the Child, and the European Convention on Human Rights, as support for the rights of parents. The issue as stated in this case is whether XY and her parents have a “concurrent right to consent” (49) - ie, do XY’s parents have a right to consent on her behalf, even if she is Gillick competent?

A variety of wardship and parental consent caselaw is cited as precedent to the current case, including the landmark case of Gillick v West Norfolk and Wisbech Health Authority, from which the notion of Gillick competence arises. Lieven J states that “[t]he very essence of Gillick is, in my view, that a parent’s right to consent or “determine” treatment cannot trump or overbear the decision of the child. Therefore, the doctors could lawfully advise and treat the child without her mother’s knowledge or consent.” (67)

However, in the present case, the parent and child are in agreement on the treatment sought. Therefore, “the issue here is whether the parents’ ability to consent disappears once the child achieves Gillick competence in respect of the specific decision even where both the parents and child agree.” (68) The crux of the decision on this point is that “[i]n the present case, in the light of the decision in Bell, and the particular issues around Gillick competence explained in that judgment, it has not been possible to ascertain whether the child is competent… Whether or not XY is Gillick competent to make the decision about PBs, her parents retain the parental right to consent to that treatment.” (69) This approach is said to protect the rights of both the child and the parent.

The second issue before the court was whether PBs fall into a “special category” of medical treatment requiring particular measures before prescription. Using a line of reasoning taken from sterilisation and wardship cases, Lieven J came to the conclusion that “There are particular issues in relation to PBs and there may well be justification for clinicians taking a very cautious approach in individual cases and erring on the side of having Court consideration and authorisation. However, the need for caution in imposing blanket rules, even for the most difficult categories of case, is important to have closely in mind.” (99)

The court also considered the Australian cases of Re Kelvin and Re Jamie concerning puberty blockers, but differentiated them from the analysis in Bell (102). Lieven J noted the possible discrimination law issues that may arise in placing PBs in a special category of medication requiring court approval, under the Equality Act 2010 and the Human Rights Act 1998. However, she reserved comment on these issues. (113)

In conclusion, Lieven J stated that she did not “consider that these issues justify a general rule that PBs should be placed in a special category by which parents are unable in law to give consent.” (128)

Implications for trans healthcare

This judgment, therefore, allows for parental consent to puberty blocking treatment on the child’s behalf, whether or not the child can be judged to be Gillick competent. Self-evidently, this is a huge step forward from the judgment in Bell for parents and children seeking gender-affirming healthcare. Children with supportive parents will be able to access the healthcare they require. However, there are obvious issues with the decision.

Firstly, the situation of children who do not have supportive parents, and who are therefore the least advocated for, remains the same. However, it is worth noting that the Tavistock clinic rarely allowed for puberty blockers to be administered without parental consent in any case, and therefore the situation in law and policy remains approximately the same. Children without support are still being left behind in their struggle for healthcare and, without the backing of their family and following Bell, they are unlikely to be able to access the care they need.

Secondly, it is unsurprising that AB follows the reasoning of Bell – Bell is currently under appeal, but stands, and Lieven J was part of the panel which decided Bell. However, the parts of Bell which, in my opinion, require criticism, are therefore not challenged. The weak evidence base on the safety of PBs from Bell, which I reiterate does not reflect the reality of international best practice, is accepted without question. The outcomes of Bell are also accepted – for example, the very debatable finding that puberty blockers are “experimental”. It remains to be seen what will be made of those findings in the appeal.

Thirdly, although the role of parents in children’s lives and decision is vital, allowing parents to be the arbiters of an issue such as gender-affirming healthcare is territory which must be trodden carefully. The court displays a strange attitude toward family dynamics, stating that it is possible that children may pressure their parents into allowing them to take puberty blockers (125). It seems far more likely that parents would be in a position to refuse consent and therefore bar the child from access to healthcare (pending, of course, the appeal in Bell on the competence of the child). This raises real questions about the autonomy of the trans child and the ideological stances of some in society, including reluctant parents of trans children.

Finally, the court’s negative attitude to transition and trans-related healthcare, as seen in Bell, is still evident in AB. The sentence “The gravity of the decision to consent to PBs is very great, but it is no more enormous than consenting to a child being allowed to die” (121) is quite shocking – delaying puberty is not seen as a temporary, interim solution to the problem of a child growing up in a body incongruent with their identity, but instead it is placed in comparison to decisions around children with terminal illness.

On the whole, the problems which happened in the wake of Bell still stand. There is still a threat of the narrowing of Gillick competence in cases around abortion and contraception, should challenges be taken. The presumption of competence has shifted away from the child and, with AB, toward the parent.

The NHS clinical reviews of treatment and ban on new applications for puberty blockers initiated after Bell are ongoing (although the Good Law Project, which supported the challenge in AB, is petitioning for them to be halted). And it is evident that the English courts still have a long way to go when it comes to understanding the lives and needs of trans young people. However, we must attend for the appeal in Bell to know in which direction the fate of these young people will tend.

• Dr Sandra Duffy is an Irish legal academic and a teaching associate at University of Bristol Law School.