High Court rules that parental consent is valid…

In March 2021, the High Court considered whether parents have the capacity to consent to a trans-child being treated with puberty-blockers. That case came a few months after R (Bell & Anor) v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) where the Divisional Court had decided that most trans-children did not have capacity to decide for themselves whether to be treated with puberty blockers, suggesting the High Court should be the decision maker (as the NHS Trusts did not, at that stage, seek to rely on parents to give lawful authority for this treatment).

In AB, the child experiencing gender dysphoria wanted treatment with puberty blockers to prevent her experiencing the effects of male puberty. This was a separate medical process to surgical gender reassignment, but the treatment was designed to delay male development whilst the child developed maturity and considered if she wanted surgical gender reassignment at a later date.

She was treated at the Tavistock clinic and was prescribed puberty blockers by a consultant endocrinologist working for a different Trust. Her parents offered to consent to her receiving puberty blockers. As the law was uncertain following Bell, the parents sought a Declaration that their consent would be effective in law. That position was supported by the Trusts and by counsel instructed to represent the child.

Lieven J (who was part of the Court in Bell) ruled that parents could provide valid consent to this particular form of treatment, whether or not the child had the necessary competence to consent to the treatment herself. It is well established that a Gillick-competent child has capacity has to consent to their own treatment. However, the Judge decided that, because parents have “parental responsibilities” for the child, they can consent on behalf of the child even if the child is competent to make the decision for herself (but for example, chooses not to decide). Hence, whilst parents cannot use their right to consent to overrule a child by requiring a competent child to have treatment that the child refuses, parental rights include giving consent when a Gillick competent child either chooses not to do so or is unable to do so.

This is important from a practical perspective because it means that treatment can continue pending an assessment of the child’s competence in circumstances where both the child and the parents agree.

The Judge also decided that, contrary to the arguments advanced by the Claimants in Bell (who were not before the court in AB), puberty blockers are not in a special category where parents are not able, in law, to consent on behalf of a child. Lieven J reasoned that, if parents do not need the court’s permission to take graver decisions such as removing life support, the court’s permission is not needed to access puberty blockers.

However, the Judge indicated that a court application should be made where there is a clinical disagreement or there is a possible alternative treatment of the medical condition in issue or if the decision was — in the opinion of clinicians — finely balanced. The Judge expressed concern that, in another case, parents could be pressured to give consent; and if that was a concern in any particular case, the case should be brought before the court to determine if the treatment is in the child’s best interests.

David Lock QC appeared for the mother in AB.

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