Since November 2018, BABEL (‘Balancing Best Interests in Healthcare Ethics and Law’), a joint Wellcome Trust funded project between the Centre for Ethics in Medicine (CEM) and the Centre for Health, Law, and Society (CHLS), has been researching the nature and purpose of the concept of ‘best interests’ as it applies to both adults and children deemed to lack decision-making capacity in healthcare matters in England and Wales. (more…)
by Sandra Duffy, Law School, University of Bristol
On December 1st, the High Court handed down its decision in the case of Bell and A v Tavistock and Portman NHS Trust. This ruling concerned a judicial review of the practice of the Tavistock Gender Identity Development Service in prescribing puberty-blocking hormonal treatments to children under 16 years of age.
Puberty blockers are given to transgender children with a diagnosis of gender dysphoria. They are used to spare these children from going through the puberty associated with their assigned sex and to give them time to reflect on their gender identity without the pressures associated with puberty. Puberty blockers have an inverse correlation rate with suicidal ideation in transgender persons and can sometimes be a life-saving treatment for these children. Most young persons who take puberty-blocking treatments will go on to take adult hormonal interventions (CSH) also (approx 98%, per Bell). However, this is neither automatic nor inevitable. Puberty blockers are fully reversible as they pertain to pubertal developments and the individual is given the choice at 16 as to whether they wish to continue on to adult medical services.
The standard used to assess competence to receive medical treatment in children under 16 is known as Gillick competence. Children are considered competent to give consent to treatment without their parents’ consent if they have “sufficient understanding and intelligence” to understand the “nature and implications of the proposed treatment.” (Bell, 105)
The interested party in this case is Keira Quincy Bell, who identified as a trans boy as a teenager and young adult, but now identifies as a woman. She does not believe that she was fully competent to make transition-related decisions as a minor, alleging that she could not understand the consequences of those decisions, nor that they would entrain the later decisions she made as an adult (such as a mastectomy).
The High Court’s conclusion in this decision is that “it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [puberty blockers]… In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.” (Bell, 145) Within the list of “long-term… consequences” the Court believes it is necessary to understand are the effects of CSH on sexual function and fertility. CSH are voluntary treatments undertaken after the age of 16, in a separate decision to that which is involved in consenting to puberty blockers. The Court here uses the high correlation rate between puberty blockers and CSH as destiny, conflating the two decisions into one – which is not the case in reality.
In making the above-quoted statement, the Court refines Gillick competence as it relates to trans children as a class. As Ruth Fletcher has pointed out, this is antithetical to the usual way in which capacity decisions are made – on a decision- and person-specific basis. It also singles out trans children and applies stricter standards on them than on other children when consenting to healthcare. Asking trans children to understand the consequences for sexual and other health matters of taking CSH (Bell, 138) – which is a treatment they will not encounter until later in their teenage/early adult years – involves a leap of the imagination which will render this standard difficult to meet.
Puberty blockers are characterised as an experimental treatment with unknown consequences in the decision. This impacts strongly on the Court’s holding that it would not be possible for young teenagers to understand the consequences of their decision to take them. However, this has been denied in the medical literature.
This decision is highly cisnormative. It positions cisgender (non-transgender) identity as normal and transition as a dangerous process to be avoided if possible. It is also heavily pathologised. There is no rights-based, affirming language used about trans youth. Trans identity itself is only referred to in terms of the psychological disorder ‘gender dysphoria,’ which people are said to “suffer from.” This adds to the othering of transgender persons and removes the perspective of the individuals concerned from the decision itself.
Lastly, the decision is likely to have an influence on other aspects of minors’ healthcare. Particularly troubling are the implications for reproductive healthcare decisions such as abortion which may also be said to have “lifelong consequences.” The tightening of Gillick competence in Bell is a worrying precedent for those seeking to protect minors’ reproductive autonomy.
The opinions expressed in this piece are solely those of the author, unless otherwise attributed.
The Human Rights Implementation Centre, along with the Centre for Health, Law and Society, are pleased to announce our seminar on the medico-legal consequences of the Bell v Tavistock judgment, which will be held on March 3rd at 1.15pm. Speakers include Robin White (Old Square Chambers), Professor Simona Giordano (University of Manchester), Dr Bianca Jackson (Coram Chambers), Dr Jay Stewart (Gendered Intelligence), and Dr Ruth Fletcher (QMUL). Please see further details at this Eventbrite link.