Bell v Tavistock and Portman NHS Foundation Trust and others – requirements for consent under Gillick
On 1st December 2020 the Divisional Court gave judgment in this unusual judicial review involving the circumstances in which a child or young person under 18 may be competent to give valid consent to treatment in law for the use of hormone or puberty blockers for gender dysphoria, and the process by which consent to treatment is obtained.
The court’s decision was in favour of the Claimants, and sets out that for a number of different reasons the court considered that in order to give valid consent, a child or young person would also need to be able to understand, retain and weigh up the consequences of cross sex hormones (which can be given after age 16) including all the physical and other consequences of further treatment.
The court’s decision in summary was that given the extent of information that would be need to be understood, it was highly unlikely that a child aged 13 or under would ever be competent to give consent to be treated with hormone blockers for gender dysphoria, and that for children aged 14 and 15 it is doubtful that a child would understand the long term consequences to be able to give consent.
The court recognised that 16 and 17 year olds are to be treated like adults under the Family Law Reform Act 1969 but suggested that it would be appropriate for clinicians to involve the court before starting any such treatment where there was doubt about the young person’s long term best interests.
The court did not consider the possible exercise of parental responsibility to authorise this treatment.
The case relates to treatment with hormone blockers and potentially cross sex hormones, and the court had indicated that the circumstances of these treatments are to be distinguished but it is possible that the arguments set out could be used to suggest other limits on Gillick competence for children and young persons.
A request for permission to appeal was refused but a stay was granted to allow an application for permission to be made to the Appeal Court.
For more information contact John Holmes.