On Friday, the Court of Appeal handed down its judgment in one of the most high profile, and important, cases for Trans children and indeed the Trans community. It is highly emotive for those involved and raises deep issues. The complexities, legal, medical and otherwise, are hugely significant.
In December 2020, the High Court ruled that children under 13 years old were "highly unlikely" to be able to consent to puberty blocking medication (described as 'innovative and experimental') and "very doubtful" those aged 14 and 15 would have the sufficient understanding of the implications to make this decision. The Tavistock and Portman NHS Foundation Trust (“Tavistock”) brought an appeal against that decision - which was successful.
The Court of Appeal set out the landscape of these cases in paragraph 3 of its judgment: "The treatment of children for gender dysphoria is controversial. Medical opinion is far from unanimous about the wisdom of embarking on treatment before adulthood. The question raises not only clinical medical issues but also moral and ethical issues, all of which are the subject of intense professional and public debate".
The main issue to be considered is whether children under the age of 16 can legally consent to take puberty blockers for gender dysphoria. The Court refers to 'Gillick competence' which stems from a 1986 case in which the House of Lords held that "provided the patient, whether the boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively". This case therefore established a principle that "it is for clinicians rather than the court to decide on competence".
The Court held that "it was inappropriate for the Divisional Court to give the guidance concerning when a court application will be appropriate and to reach general age related conclusions about the likelihood or probability of different cohorts of children being capable of giving consent" although acknowledged that there may well be circumstances when an application is necessary.
Many children will have been impacted over the past 10 months and there is now clarity as to the approach to be taken and the Court of Appeal confirmed that "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".
Court of Appeal judges said they recognised "the difficulties and complexities" of the issue, but that "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