(For a primer on the Keira Bell vs Experimental Drugs on children see: https://youtu.be/0A6dFxAf8wY See a brief the overview of the courts’ decision below.)
By Law Graduate Katherine Deves
• The court has asserted they have the authority to make this decision under the best interests of the child principle because the treatment has profound lifelong and lifechanging consequences for children.
• The court acknowledged that the consequences of the treatment are “highly complex, potentially lifelong and life-changing in the most fundamental way possible”, and that there is no physical manifestation of gender dysphoria so it is concerning that clinical intervention is highly unusual in that it is surgical and medical, and interferes with normal biological and physical development.
• The court established that puberty blockers (“PB”) are not a neutral treatment (“pause button” theory was discredited) and that PBs and cross-sex hormones (“CSH”) are not discrete treatments because children invariably progress from puberty blockers to cross-sex hormones. Therefore, to be determined to be Gillick competent a child or young person must understand the implications of taking both.
• The court thoroughly reviewed the appropriateness of the application of the Gillick test and established a new comprehensive test of 9 different requirements to determine competency for consent, with children over the age of 16 being assessed differently to those under 16.
• The decision stated that the current Gillick test cannot be applied to the circumstances of the treatment as the child would have to understand, retain, and weigh up:
i. Immediate consequences of the treatment in physical and psychological terms
ii. The fact that the vast majority of patients taking PBs go to CSH and therefore s/he is on a pathway to much greater medical interventions;
iii. The relationship between taking CSH and subsequent surgery, with the implications of such surgery;
iv. The fact that CSH may well lead to a loss of fertility;
v. The impact of CSH on sexual function;
vi. The impact that taking this step on this treatment pathway may have on future and life-long relationships;
vii. The unknown physical consequences of taking PBs: and
viii. The fact that the evidence base for this treatment is as yet highly uncertain.
• In light of this new test and the unusual circumstances of this treatment, the court determined a child under the age of 16 is incapable of meeting the requirements as it is impossible for them to conceptualise and comprehend the effects. It should be a “statement of the obvious” in relation to children and adolescents finding it difficult to contemplate or comprehend what life will be like as an adult, and that they do not always consider long term consequences of their actions. There is no possible way to explain this in an age-appropriate way to explain the effects and cannot be mitigated by providing a child with more detailed information.
• Children over the age of 16 will require court authorisation, but the court has implied that it will be very unlikely it would be granted. For children over 16, it is appropriate for clinicians to involve the court should there be any doubt as to whether it is in their best interest because the clinical intervention involves “significant, long-term and….potentially irreversible long-term physical and psychological consequences”, and it is experimental with real uncertainty around the short and long term effects, and very limited evidence of its efficacy.
• The court was surprised at the Tavistock’s failure to keep data and records, and follow-up patients, as well as failing to make available research that was collated 9 years ago, and concluded that there is a lack of clarity over the purpose of the treatment considering it is unusual, experimental and with serious consequences.
• It must be remembered that the court is not empowered to make legislation, they are empowered to interpret the law, therefore, it is beyond their scope to issue a ban on such treatment as that is a matter for the legislature.