Keira Bell and Mrs A vs. Tavistock - Court of Appeal hearing 23 & 24 June 2021

It raises the question: what's special about PB treatment for gender dysphoria compared to other treatments a child can consent to? If the Court of Appeal accepts that PBs in most cases lead to treatment by cross-sex hormones, the answer would be quite a lot. Can a child give up all that that entails when, by any sensible measure, they can never really understand what they're giving up? The answer from the appellants would seem to be that what the gender dysphoric child gets from the treatment is so significant, then the question of loss is of less importance

To be clear - I agree with the original judgement but, if I were advising the Tavi team (I am a doctor, not a lawyer, but do a lot of medico-legal work), I would say - how is this different in principle from an abortion? An abortion is permanent, non-life saving (in most cases) and less reversible than PBs. And we know that some women do go on to regret them (I am pro-choice: again, I am not reflecting my own views here)

For the appeal to fail, the AC will need to uphold the original judgement that there is a clear difference in law between PBs and all other treatments, in order to create a rationale for treating PBs in unique way, as regards competency. I think that will be hard. I suspect we will end either in a fudge, where the original judgement is overturned, but with a finding that the Tavi should have a low threshold for going to court before prescribing PBs, and/or with the hot potato being passed to the Supreme Court.

Any other treatment offered to a child, or an adult for that matter, involves an explanation of the balance between risk and benefit, so that the patient can understand how that equation looks from a medical perspective, but also think about how that fits into their own circumstances. If the risks are significant, there needs to be a very solid basis for the short-term and long-term benefits to set against that.

The risk-benefit equation for puberty blockers for gender dysphoria is very poorly understood even in the medium term, never mind the long term, so the basis for saying a child or adolescent can understand that is completely lacking, which in turn renders consent meaningless.

Some of these kids are so young that they need sex and what orgasms feel like explaining to them (massive again).

These ''professionals'' seem to think that just telling a kid ''x feels like this'' and ''you won't be able to have children'' is good enough. How the hell can a child truly understand how infertility will make them feel as adults? Or not being able to have sexual relationships?

Undersnatch

do you know what is the current situation there, what age child needs to be to consent to an abortion or contraception, without parental consent?

There isn't a specific age. Instead, a concept called Gillick competence is used. The child would need to display the capacity to make a decision about contraception or abortion.

Capacity is decision specific and requires someone to show that they understand and can retain the information needed to make a decision; to weigh up the different options available to them; and to communicate their decision.

So a child might need to show that they understand that not having an abortion would mean going through pregnancy and birth, then having a baby and either taking care of it or having it taken into care; whilst having an abortion would mean taking a drug or surgery to end the pregnancy, and that this would end the baby's life. They would need to come to a decision and explain why they were making that decision.

Assessing capacity can be a bit subjective, but that's the general process.

Sorry if this is a daft question - is the question of parental consent to puberty blockers in this case specifically limited to their prescription by gender identity clinics? I know they are legitimately used in cases of precocious puberty when of course a child would not be considered gillick competent.

Thanks invisible, that's interesting. I wonder why she changed her mind - I assume not due to any more information etc but her feelings changed? (perfectly understandable!)

tuning in to a discussion about whether the windows can be opened as it's a bit hot in there!

also fascinated by who is wearing a mask and who isn't.

what's special about PB treatment for gender dysphoria compared to other treatments a child can consent to?

The combination of experimental, permanent and not life-saving.

What other treatment is being offered like that?

CardinalLolzy

Yes, there is a distinction. See for example this case, in which a teenager was found to be able to refuse consent for a life-saving heart transplant:
www.google.com/amp/s/amp.theguardian.com/society/2008/nov/12/health-child-protection

She changed her mind a few months later:
www.bbc.co.uk/news/av/uk-43110989

Because she was deemed Gillick competent to make that decision, she was able to refuse to have the treatment, even though the result of that was that she would die. She was still able to change her mind afterwards.

That was a very unusual case, because the child had received a lot of medical treatment throughout her life, so was a lot more knowledgeable about the realities of treatment - and also about her own mortality.

The thing that always strikes me - in any other context, a 12 or 13 yo who understands sex and sexual pleasure would (or should) trigger about a million safeguarding klaxons, because, y'know, they shouldn't have anything other than theoretical understanding.

But in this context, it's perfectly fine to assume they truly understand what they're agreeing to and what they're giving up.

But the concept of ring-fencing PBs as particularly unlikely to be within Gillick competence is novel and may be successfully challenged by the Tavi.

It raises the question: what's special about PB treatment for gender dysphoria compared to other treatments a child can consent to? If the Court of Appeal accepts that PBs in most cases lead to treatment by cross-sex hormones, the answer would be quite a lot. Can a child give up all that that entails when, by any sensible measure, they can never really understand what they're giving up? The answer from the appellants would seem to be that what the gender dysphoric child gets from the treatment is so significant, then the question of loss is of less importance.

For me it comes down to this: how many false positives will there be? (ie ROGD would-be desisters). That's why the appellants arguments this morning talked about extensive regulatory safeguards.

If nobody were entitled to speak for somebody they didn't know and had never met, I guess the transatlantic slave trade would still be flourishing. 🤔

Just to add to this, given the lack of good evidence, is this case going to test whether emotion can be brought into court and win, without the evidence to back it up. No matter what documents Tavi has, there really isn't the science to back up the case to win the appeal - or am I being daft

Abortions are "reversible", for the mother, in that the mother can (normally) have another child later.

You can't have another puberty later.

(Obviously in either case as many steps as possible should be taken to avoid that situation when we're taking irreversible treatment! )

This is a bit theoretical and I'm not saying it's anything to do with Keira's case, but is there a distinction between not being able to consent, because you lack the capacity to fully understand the information given, and consenting with understanding but later changing your mind? Would the latter situation always depend on not having relevant information or understanding that means you would've made a different decision had you had that in the first instance?

We don't characterise any other decision about consent in this way for under 16s (I think I am right in saying), and I can't think of any other analogy in medical law in general

Indeed. But that seems to be because PBs are a novel case. An experimental treatment with no firm evidence foundation, not addressing an immediately-life-threatening condition, that clinicians apparently want to widely prescribe.

We've all been struggling with the audio oldwoman

MissLucy wouldn't it be good to get this to the Supreme court? I know this is yet another step, but it would then be unassailable, unless the government brought in legislation (and I guess that would only happen as the result of much better medication and research). Would the Tavi consider the challenge is the other question

Many thanks for your commentary, ladies. I'm watching the video but am struggling to understand the points being made in court (can't hear some of it anyway)

This is by no means a slam-dunk, and I think it will go to the Supreme Court, whatever the AC outcome.

Despite the fox-basher's claims, the original judgement reinforced Gillick. However, the judgement's ring-fencing of decisions about PBs as very unlikely to fall within an under 16's competence was novel. We don't characterise any other decision about consent in this way for under 16s (I think I am right in saying), and I can't think of any other analogy in medical law in general - with the arguable exception of life or death decisions by people with a Lasting Power of Attorney, but that's rather different, as it is not the patients themselves making the decision in that case.

So the legal principle underlying the original judgement won't be overturned by the AC, as it is Gillick. But the concept of ring-fencing PBs as particularly unlikely to be within Gillick competence is novel and may be successfully challenged by the Tavi.

Please don't shoot the messenger btw. I am not responsible for deficiencies in the legal system

And that's lunch

Isn't that what the court decided last time? If that all were in agreement it would go to court and be decided on a case by case basis?

I believe that was what they basically said, yes. They would need to establish whether the child in question would be capable of consenting. They believed the default assumption should be "no", but a court could override that.

For children between 16 and 18, they still recommended taking it to court to make sure.