NHS clinicians prescribing puberty blockers are ‘extensively, powerfully’ regulated, court told
A court ruling that blocked access to vital healthcare for young trans people was based on “partisan” evidence and must be quashed, the NHS argued today at the Court of Appeal.
If the High Court had “applied the rules of evidence” to what it heard in October’s judicial review proceedings it would “almost certainly have rejected it for a number of reasons”, the Court of Appeal heard today.
“We say that evidence on its face was clearly partisan,” judges were told by Fenella Morris QC, for the NHS.
The NHS is appealing the December verdict in a case that was brought by Keira Bell, 23, who took puberty blockers at 16 and had top surgery at 20 but has since detransitioned, and Mrs A, who wanted to prevent her 16-year-old child taking puberty blockers.
It hinged on whether under-16s can give informed consent to puberty blockers, which are currently the only medication available to trans under-16s experiencing gender dysphoria. Seventeen and 18-year-olds who have been taking puberty blockers for at least a year are eligible for hormone replacement therapy (HRT).
Puberty blockers are widely deemed safe, reversible and medically necessary, lawyers for the Tavistock and Portman NHS Trust maintain. Lawyers for Bell and Mrs A successfully argued that trans teens should have to go before a court before being able to access the medication.
The High Court judges said in their ruling that it is “doubtful” children aged 14 to 15 could understand “the long-term risks and consequences” of taking puberty blockers and then HRT, and “highly unlikely” that children under 13 would be competent to give consent.
The December verdict sent shockwaves through the LGBT+ community, as it meant young trans people’s access to healthcare in England and Wales was further restricted. The Tavistock and Portman NHS Trust is now appealing that judgment.
The Tavistock runs GIDS, the only NHS gender clinic for trans youth in England and Wales, and today defended the process by which it refers trans young people with gender dysphoria to endocrinology services to be considered for puberty blockers.
The Court of Appeal heard that the existing mechanism by which young trans people can consent to puberty blockers, which is known as Gillick competence and is a system of informed consent also used by doctors to prescribe contraception and abortion care to under 16’s, is working properly and should be reinstated.
Gillick competence is “a complete answer to the entirety of the situation” when it comes to prescribing puberty blockers to young trans people, said Morris.
“What we seek as an outcome is a return to established legal procedures,” Morris told the Court of Appeal today.
Morris also told judges that another case, AB, has already partially reversed the December High Court judgment, in a ruling that says parents can consent to puberty blockers on behalf of their trans children.
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In cases where the patient, doctors and parents all agree on puberty blockers being the right treatment, then forcing them to go before a court to get permission “adds to the court’s burden” and would be “unimaginably stressful for families”, Morris said.
“You shouldn’t be singling out any treatment as an exception to Gillick because it’s novel or sensitive. Gillick is good for everything,” Morris continued.
Morris went on to explain that there are multiple other regulatory bodies overseeing decisions about healthcare for young trans people experiencing gender dysphoria – including NHS England, the Care Quality Commission, the Cass Review, and the General Medical Council – and that trans youth and their families do not also need court involvement.
“We say that this established, extensive and powerful system ought to be left in place and it’s not appropriate for the court to venture further into it.”
The Lord Chief Justice, Lord Burnett of Maldon, said that the case has generated “great interest” and that he fears “that there may be a sense out there that this court is concerned to decide whether this treatment is a good idea or a bad idea. I hope that everyone understands that this is not what these judicial review proceedings, or this appeal, is about”.
Tomorrow is the second and final day of the hearing. The judgment is expected to be reserved and published in the coming months.