Courts shouldn’t ban clinical treatments
This is a win for common sense, not the trans lobby
When we talk about court cases we often talk about winners and losers. On one analysis it looks like a loss for rationality that the Court of Appeal has reversed the decision of the High Court that medical transition for children was so serious it required court sanction. Instead, it hands the question of consent back to clinicians.
In earlier, more innocent times, this would indeed be a major win for the pro-transition lobby. But this is not 2015: gone are the Wild West days of trigger-happy treatment, where clinicians prescribed first and asked questions… never. Instead, we have intensifying public and professional scrutiny of these treatments and their providers, including in the Court of Appeal’s judgement.
Bell’s judicial review has failed, but she has performed a great service for the integrity of medics
First, however, let’s examine the specifics of the case. The Court of Appeal were unhappy with how the High Court dealt with disputed evidence; agreeing with its stated approach that a judicial review was not the correct arena for making findings of fact (para 31) or attempting to choose between disputed expert evidence. It considered that despite these statements of intent, the High Court had made some factual determinations such as the treatment offered was “experimental” on the basis that there was “real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy”. The Court of Appeal found it would have been better to avoid those kinds of “controversial” findings which “turns expressions of judicial opinion into a statement of law itself.”
Nor was the High Court right to make declarations about the validity of a child’s consent. The Court of Appeal noted this was the heart of the appeal, with the Tavistock arguing that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.” Nor could the Court of Appeal find any example of declaratory relief being granted in a judicial review where the challenge with regard to the law had failed.
While both Lords Scarman and Fraser had in Gillick made detailed observations about what they would expect to see from doctors assessing informed consent, to have turned these into declarations of law would have been inappropriate (para 81).
The High Court was also wrong to require that decisions about treatment needed to be sanctioned by the court. This “placed patients, parents and clinicians in a very difficult position”. The guidance would in practice have the effect of denying treatment as many wouldn’t have the resources to make an application and there would be inevitable delay through court involvement.
All patients, particularly children, need services that are insulated from political ideology
This was not a decision about the rights and wrongs of puberty blockers; it was a decision about the limitations of a judicial review. Keira Bell’s judicial review has failed but she has performed a great service for not only the welfare of children but also the integrity of the medical and scientific community. The High Court exposed the lack of proper evidence in this field alongside the bizarre cementing of an “affirmation path” which confines children on a route to really serious medical intervention, for the rest of their lives. We hope that the discussion generated by both the High Court and the Court of Appeal will finally bring an end to this dangerous climate of fear, where necessary discussion is shut down as “transphobia”.
The Court of Appeal sounds a warning note at the end of the judgment at para 92:
We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.
And at para 93:
But it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances, as envisaged by Gillick itself, and by reference to developing understanding in this difficult and controversial area. The clinicians are subject to professional regulation and oversight.
The signs are hopeful now of more general willingness and openness to discuss these very important issues. The Cass Review was commissioned in 2020 to carry out an independent review into gender identity services for young people. Its terms of reference focus on the assessment, diagnosis and care of children with gender incongruence and will be wide ranging in scope.
We await the outcome of the Cass Review with great interest. It will hopefully recognise that all patients, but particularly children, need services that are insulated from political ideology. “Talking therapies” must assume a greater importance than simply a model of affirmation. This will no doubt place an even greater strain on the existing specialist facilities for “gender diverse” children but the long term impacts on children are too serious to ignore and we must make investment in our children’s mental health a priority.
Few will admit it openly, but gender critics and pro-transitioners are all ultimately on the same side: we want what we believe to be best for children’s long-term health and happiness. The only people who matter are, and always will, be the young people at the centre of these treatments. Whether they end up winners or losers depends entirely on us having an open, informed and transparent discussion about the risks and benefits of transition. Yesterday’s judgement helps bring this another important step closer.
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