High Court affirms parents can consent to medical…

The difficult and complex business of providing medical treatment to trans-gender children got a little easier as a result of the judgment given by Mrs Justice Lieven in AB v CD and others [2021 EWHC 741 (Fam) ("AB"). AB could be seen as being “round 2” of Bell v The Tavistock and Portman NHS Foundation Trust & Ors [2020] EWHC 3274 (Admin) ("Bell"), but that would not be wholly accurate.

In Bell the Divisional Court decided that the issues around puberty blockers were so complex, a child was unlikely to have capacity to make the decision for himself or herself, and as the Trusts said they had, to date, only relied on consent from children (not from parents) the only way for the Trust to treat trans-gender children with puberty blockers would be for treatment in each case to be approved by a Judge. NHS England instructed the Tavistock and Portman NHS Foundation Trust (“the Tavistock”) to apply to court for Judge to decide if treatment should continue for trans-gender children on existing treatments. That outcome raised the possibility that Family Division Judges would have to find space for up to 500 cases a year where they would need to review the evidence in every case to see if a trans-gender child who was recommended to should be administered puberty blockers. That process envisaged a separate “best interests” application for each child to a High Court Judge. The challenges of the court delivering that type of service are not insignificant.

The outcome in Bell also led to NHS England instructing the Tavistock not to commence treatment for any new trans-gender children seeking puberty blockers. Treatment for such children has thus been put on hold by NHS England.

The present status of the Bell decision is somewhat unclear because the order made in that case is stayed until the appeal is heard. The appeal in Bell will be heard in the Court of Appeal in June 2021.

The judgment in AB did not challenge the court's findings in Bell, which was not surprising as Lieven J was one of the 3 Judges in that case. AB was dealing an issue that was not addressed in Bell, namely whether a parent could consent to their trans-gender child being prescribed puberty blockers. The reasoning of the Applicant in AB was that, if the child could not consent, the parent was next in line, not the court.

In summary, the Judge decided that AB was right in saying that a parent could consent to this treatment of behalf of her child. The Judge decided there were no public policy reasons to say that these decisions should be taken by Judges as opposed to parents. Indeed the court went further and noted that parents were often better placed than parents to act as decision makers. It is a well-reasoned, sensible and sensitive judgment. It does not dissent from Bell (and Lieven J expressly stated she continued to agree with Bell) but it means that doctors can now look to parents to provide lawful consent to puberty blockers where the doctor reaches the professional medical opinion that the treatment is in the best interests of the child. As long as NHS England changes its instructions to the Tavistock that every case has to go to court (which seems inevitable), it should massively reduce the number of trans-gender children cases that have to come to court.

In this case, unlike in Bell, the court was asked to consider whether adopting rules around trans-gender children accessing medical treatment which were different to the rules applying to children accessing all other medical treatment would be unlawful as any difference of approach breached provisions of the Equality Act 2010. The Judge accepted that there was a serious issue whether different rules would be unlawful, but felt that she did not need to address that issue because she decided the same rules relating to parents having the right to consent applied to trans-gender children as applied to all other children. That issue, the Judge predicted, would be likely to re-emerge in the Bell appeal.

The case also offers an answer to one of the perennial questions in medical law, namely do parents lose their capacity to consent when the child becomes Gillick competent. The answer is “No”, parents can still be the decision maker but they cannot use that power to overrule a treatment decision made by a Gillick competent child. The Judge summarised the position at §69 saying:

“This [i.e. the need for the parents to be a medical decision maker] might arise if the child is unable to make the decision, for example is unconscious. However, it could also arise if the child declines to make the decision, perhaps because although Gillick competent she finds the whole situation too overwhelming and would rather her parents make the decision on her behalf. In 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. In this case, there are two options. If the child is Gillick competent, she has not objected to her parent giving consent on her behalf. As such, a doctor can rely on the consent given by her parents. Alternatively, the child is not Gillick competent. In that case, her parents can consent on her behalf. It is not necessary for me or a doctor to investigate which route applies to give the parents authority to give consent. Therefore, in my view, whether or not XY is Gillick competent to make the decision about PBs, her parents retain the parental right to consent to that treatment”

That legal analysis goes far beyond puberty blockers and appears to be of general application. It is likely to be of considerable practical benefit to doctors in a range of cases including where there is uncertainty about whether a child is Gillick competent, where the child is equivocal about making a medical treatment decision or where the child lacks capacity.

David Lock QC appeared for the Applicant mother in AB, leading Ceri White and instructed by Anne-Marie Irwin of Rook Irwin Sweeney.