'Highly Unlikely' Children Can Consent to Puberty Blockers

By Louise Hayes


UPDATE

The High Court has ruled that it is “highly unlikely” that a child under 13 could legally consent to being given puberty blockers. In Bell v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin), Dame Victoria Sharp, Lord Justice Lewis, and Mrs Justice Lieven unanimously found that competence requires children to understand:

  • The immediate and long-term consequences of treatment;

  • The limited evidence available on the efficacy of purpose of puberty-blockers;

  • Use of cross-sex hormones; and

  • The potentially life-changing consequences of using puberty-blockers.

As a result, the Court deemed it “doubtful” that children between 14 and 15 could legally consent to treatment. The Court also expressed reservations to providing children with more information in order to enable them to provide their informed consent, arguing that it is virtually impossible to convey to a child the gravity of permanently losing one’s fertility.


SIGNIFICANCE

The test for informed consent for children below the age of 16 is set out in the House of Lords decision of Gillick v West Norfolk and Wisbech AHA [1986] A.C. 112. Gillick competence requires a child to achieve “sufficient understanding and intelligence to enable her to understand fully what is proposed.” Whereas mental capacity for adults, as set out in the Mental Capacity Act 2005, can fluctuate depending on the day, Gillick competence is a developmental stage achieved on reaching a certain level of maturity. It is decision-specific and “commensurate with the gravity of the decision made.”


Whilst Bell does not alter the Gillick test or deny puberty-blockers to children under 16, the judgment is unusual and likely injurious for children seeking treatment for gender dysphoria. In keeping with the flexible nature of the Gillick test, the Courts usually refrain from specifying ages at which children can foreseeably consent to treatment, preferring case-by-case assessments. However, Bell arguably reveals existing judicial disinclination towards allowing children to make irreversible medical decisions. Similar paternalism is evident in Re L (Medical Treatment: Gillick Competency) [1998] 2 F.L.R. 810, where a 14-year-old Jehovah’s witness’ refusal of a life-saving blood transfusion was overruled by the Court, given the child’s “limited experience of life.” A factually analogous situation unfolded in R E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386, notwithstanding the 15-year-old claimant’s impressive intelligence and understanding. Arguably, Bell demonstrates that the Courts continue to conflate the informed consent test with a ‘best interests’ test, and thus medical autonomy for children is likely confined to reversible medical decisions.

77 views

Welcome to TLA where it is our goal to Encourage, Unify and Educate individuals interested in the evolving world of law!     Learn More