NHS ‘obtained consent illegally’ from trans kids for puberty blockers, claims Keira Bell lawyer
The NHS appeal against a controversial judgment that restricts access to puberty blockers for young trans people has concluded.
Lawyers for Keira Bell, a young woman who detransitioned, reiterated their argument that it is a “fairytale” that young trans people are capable of consenting to “experimental” healthcare.
Jeremy Hyam QC said the Tavistock and Portman NHS Trust “permits or encourages” unlawfulness in the way it obtains consent from gender dysphoric children.
“The way that consent was being obtained was illegal,” Hyam told the Court of Appeal of the Tavistock’s procedures.
Hyam was questioned by judges on this approach on the basis that the Tavistock does not itself prescribe puberty blockers – it refers trans children under its care to endocrinology services at the Leeds Teaching Hospitals Trust or University College London Hospital.
For this reason, the Lord Chief Justice, Lord Burnett of Maldon, said he was finding it “quite difficult at the moment to figure out what the divisional court thought was unlawful”.
Bell, 24, brought the landmark judicial review against the Tavistock and Portman NHS Trust, which runs GIDS, NHS England’s only gender clinic for trans under 18’s, along with Mrs A, a mother who wanted to prevent her teenage child taking puberty blockers.
Bell regrets her own medical transition – she took puberty blockers at 16, testosterone at 18 and had top surgery at 20 – and says that the Tavistock clinic should have challenged her more about her desire to transition.
In December, the High Court ruled that it is “doubtful” that children aged 14 to 15 could understand “the long-term risks and consequences” of taking puberty blockers, and “highly unlikely” that children under 13 would be competent to give consent. Judges said that clinicians should seek a court’s backing before prescribing the medication.
The case is about whether young trans people can give their informed consent to puberty blockers, which hinges on ‘Gillick competence’ – an established procedure via which young people have bodily autonomy and the right to healthcare, including contraception and abortion-related healthcare for under 16’s.
Puberty blockers, said Hyam, are a “pathway to greater intervention” with “the vast majority” of trans children who are prescribed them going on to become trans adults who may take “cross sex” hormones.
These hormones, Hyam told the Court of Appeal today, “may lead to loss of fertility” and have a “partial” impact on “sexual function”.
“The child has to understand the bigger picture” of “what is coming down the line” if they take puberty blockers, Hyam told the court. These children, he added, may be “unconcerned” about their sexual relationships now but that might change in the future, and as such it is “unlikely or very unlikely that a child of 12 or 13 could consent to” taking puberty blocking medication.
The Leeds Teaching Hospitals Trust and University College London Hospital, which were not respondents in the original judicial review, intervened in this appeal. A barrister for the two told the court that the decision on whether to prescribe puberty blockers to trans kids with gender dysphoria is made by a paediatric endocrinologist.
“The document being challenged relates to the Tavistock and that is no more than a consent procedure for referring patients to the Trusts,” judges heard. “It does not purport to be the document used by an endocrinologist to determine if there is consent under Gillick.”
It was explained that once young trans people have been referred to endocrinology services by clinicians at the Tavistock’s GIDS clinic, they undergo tests including bone density, blood tests, an appraisal of the stage of puberty they have reached, and psychological evaluation. Six to 12 months later a paediatric endocrinologist will decide whether they are Gillick competent and can be prescribed puberty blockers, if that is deemed by clinicians to be the best course of treatment and if the child and their parents agree.
“Some confusion has crept into this claim,” the court heard, “because the grounds of claim challenge the prescription of puberty blockers by the Tavistock. But the Tavistock doesn’t prescribe puberty blockers”.
The judges have reserved their judgment, which will be handed down by email to the parties.