What is the Bell v Tavistock appeal really about?
Sarah Phillimore summarises the events from the first day of the Bell v Tavistock appeal
In December 2020 the High Court heard an application for judicial review of the practices of the Tavistock and Portman Foundation NHS Trust (the Tavistock) in prescribing puberty blockers for children.
The court declared that it was highly unlikely that children under 16 would be able to offer informed consent to this treatment, as it lead inexorably to prescription of cross sex hormones which have serious and life-long consequences, including likely loss of fertility and sexual function. How, it was argued, could any child consent to this? Only if, the court replied, the child was found to be able to understand the full implications of this treatment. In other words, was it “Gillick competent”?
The case attracted a significant amount of international attention, as most other jurisdictions proceed on the basis that puberty blockers are “completely reversible” and have no long lasting consequences. The Tavistock appealed and their arguments were heard yesterday in the Court of Appeal.
I managed to follow most of the hearing via the live stream on YouTube. As with any court hearing, what the observer needs to pay closest attention is not the submissions of the parties, however powerful or elegant they may be, but the interjections of the Judges which give immediate insight into how the court is thinking.
The interjections here were interesting. The court explicitly recognised its concern that “the great interest” the case has generated raised the fear “that people think we are deciding whether or not this treatment is a good idea or bad idea. That is not what this case is about.”
The Tavistock argued that clinicians should be trusted to exercise their judgment
The case is rather directed to the much narrower and less immediately exciting considerations of what is the precise ambit of a judicial review and when can the court reasonably interfere in decisions made by the medical profession. The key to the argument appeared to turn on whether or not the “service specifications” were lawful or not. These are drawn up by NHS England and informed the Tavistock as to how to meet their statutory obligations. The Tavistock argued they were lawful, they were followed and that was that. It was not for the court to try and adjudicate between the competing claims of various experts.
Keira Bell’s team argued that the “readiness indicators” set out in the service specifications, to help the clinicians decide when a child was able to offer valid consent, were insufficient and the High Court had been right to add more detail. But, argued the appellant, that means the court treading on the clinician’s toes, which goes beyond the court’s role. Clinicians should be trusted to exercise their clinical judgment and they are subject to a raft of regulatory consequences if they don’t. If any such revised list of “readiness indicators” is to be drafted, then it should only be done with at least some collaboration with the medical profession and no such collaboration was sought here. The child’s autonomy should be respected and families not subject to additional stress of court proceedings.
It seemed as if the Court of Appeal were looking favourably upon the argument that doctors could be trusted to do right by their patients and that it was not advisable to attempt to distinguish one form of treatment as being so serious that it should require court approval or any presumption that a child was not Gillick competent.
The question of medical intervention for gender non-conforming children is unlike any other clinical decision
There is one more day of submissions to go and I await the judgment with great interest. There will clearly be an enormous amount to unpick. In almost every other clinical scenario I too would be attracted by the submission that it is for the doctors on the ground, who must make these decisions every day to be trusted to make them; matters should only be referred to the court when there is serious dispute between patient and doctor. But the question of medical intervention for gender non-conforming children is unlike any other clinical decision. The quality of the evidence for its efficacy is poor. More concerning, any opportunity to discuss or investigate this over the last few years has not merely been discouraged, but actively and aggressively silenced. Doctors are just as fallible as any other human and history is littered with examples of where existing medical ethics did not protect patients from really serious harm — from lobotomies to eugenics.
Of course the Court must not become a “law maker” — that is the role of Parliament. But if the checks and balances inherent in the separation of powers are to be effective, the court cannot operate in lofty indifference to what is actually happening on the ground. When the medical evidence is as contradictory, sparse and contested as it clearly is here, when the consequences for the children are significant, life long and irreversible, when any attempt to discuss it is met with cries of “transphobia” — does the ancient parens patriae jurisdiction simply give way to unquestioning trust in clinicians?
The beating heart of this case will remain the child’s ability to consent. The Tavistock say they would never treat a child who didn’t — but could not demonstrate in the High Court how they analysed or kept records of their decisions about a child’s Gillick competence. I would hope that any responsible clinician would welcome the guidance set out by the High Court as to the wide range of issues a child would need to weigh and understand to make their consent lawful.
The tragedy will remain that, whatever the outcome of this appeal, treatment for children in distress about their gender identity remains woefully inadequate and appears to focus on medical intervention rather than talking therapies. Waiting lists are so long that these discussions around the ability of children under 16 to consent to puberty blockers will be, for many, simply academic.
Any opportunity to discuss this over the last few years has been actively and aggressively silenced
If Keira Bell’s declarations are quashed, the Court of Appeal will at least be very clear that this is not a decision about the rights or wrongs of the treatment itself. And this very court process and the continued discussion have been hugely significant in challenging the dangerous notions that these matters may not be discussed. Growing concern over the activities of the Tavistock, as reported by Newsnight, have prompted further action outside the court arena. The Independent Review of Gender Identity Services for Children and Young People (The Cass Review) was commissioned by NHS England and NHS Improvement in Autumn 2020 to make recommendations about the services provided by the NHS to children and young people who are questioning their gender identity or experiencing gender incongruence.
It may be that this case ends up an example of the limits of “lawfare”. Courts can only decide the cases in front of them; they may not usurp the functions of Parliament or conduct wide ranging reviews of opposing clinical views.
However it happens, in whatever forum, what is important is that the risks and benefits of such treatment are researched, discussed and challenged where necessary. This will be the true victory of Keira Bell — to make it clear that these are issues we can and will discuss, to protect the welfare of children, without fear or favour or tiresome and false accusations of “transphobia”.
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