Gillick competence and the treatment of transgender children and young people: Rook Irwin Sweeney acts for interveners in successful appeal of R (Quincy Bell and another) v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)

The Court of Appeal has overturned the decision of the Divisional Court in R (Quincy Bell and another) v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) relating to the treatment of children and young people with gender dysphoria with “puberty blockers.” That judgment had concluded that it was highly unlikely that under-13s would ever be competent to give consent to treatment with puberty blockers, and (b) it was very doubtful if 14 and 15-year olds could understand the long-term risks and consequences so as to have sufficient understanding to give consent. In those circumstances, the Divisional Court said that clinicians “may well consider” that it is not appropriate to move to treatment with puberty blockers without the involvement of the court. The Divisional Court also made declarations giving guidance on the matters a child would need to understand to be considered competent to consent to treatment with puberty blockers.

In a unanimous judgment handed down on 17 September 2021, the Court of Appeal allowed the Tavistock’s appeal, concluding that:

• the Divisional Court had not found that the policies or practices of either Tavistock or the NHS Trusts to whom it referred patients for consideration of treatment with puberty blockers were unlawful, or that the information provided to patients was inadequate to form the basis of informed consent – as such, the Claimants’ claim before the Divisional Court had failed; given that the claim had failed, the Divisional Court should not have made any declarations;
• the declaration made by the Divisional Court covered areas of disputed fact, expert evidence and medical opinion, which were not suitable for determination in judicial review proceedings;
• the House of Lords case of Gillick v. West Norfolk and Wisbech Health Authority had already decided that it was for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment;
• the Divisional Court was not in a position to give general guidance on what a child would need to understand to be competent to consent to treatment with puberty blockers.  The Divisional Court’s guidance would require applications to the court when there was no legal obligation for such an application to be made.  It placed patients, parents and clinicians in a difficult position, and should not have been given.

The judgment sets out the proper distribution of responsibilities as between doctors and the courts, primarily that it is for clinicians, under appropriate regulation, to assess Gillick competence and that it is not for the Courts to prescribe general guidance on how doctors should exercise their clinical judgment. It also provides timely clarification on the law on children’s consent to medical treatment in view of the recent decision to offer COVID-19 vaccinations to young people in England and Wales who are aged between 12 and 15.

Rook Irwin Sweeney acted for the national trans-led charity Gendered Intelligence; Brook, the UK’s leading sexual health and wellbeing charity for young people; and the Endocrine Society, a global community of endocrine scientists and clinicians, who intervened in support of the appeal.