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

It's interesting to think about what the Tavistock make of this and what they wanted from the initial decision. The appeal being successful is a terrible outcome for them. The High Court exposed their evidence base and practice as being woeful and if the Court of Appeal overturns the High Court, this will be trumpeted everywhere is a totally victory for prescription of puberty blockers to children and the Tavistock will be deluged with children saying "I want my puberty blockers". The very worst thing the Tavistock could do in response would be to return to business as usual.

Does Keira get to give any evidence or is it only the lawyers that can speak?

I don't think it does leave them with a nightmare if they win the appeal. A large part of their client base totally believe in the approach and will happily put their children on the pathway. If you believe your child is trans and has been since birth, why wouldn't you carry on. Afterall it's only people like us and a lower court that is saying it's wrong and that's only because we're transphobic.

I never realised how judges can pick and chose towards an outcome they want. It is clear that these judges don't want to make a ruling, they are looking for a technicality to overturn to get out of making a decision on this. Wow

The appeal can be lost but it still leaves the Tavistock with a nightmare. They know they have no evidence base and they know that everyone else knows it. The world has moved on, outside the US the "foreign Tavistocks" have in some significant cases voted with their feet.

If the appellants win, what will they do with their victory in a practical sense?

That's a good point Nauticant. The judgment is important even if the overall point is lost.

At least one of the judges - possibly all of them - are currently completely unconvinced that the nature of the treatment has anything to do with the court. I'd be amazed if this appeal is dismissed at this point.

The judges don't want responsibility for this. They want the responsibility to lie on those making the medical decisions and for them to get their act together.

The way the judges are looking to wriggle out of this is to say there was nothing unlawful in a narrow judicial review sense.

To me the question is whether they're going to wash their hands so completely that they'll refrain from even stating that although there was no illegality, the Tavistock are acting without an evidence base.

Surely the key point with capacity (and presumably Gillick competency) is that it’s not enough to just be able to understand the information, the person has to be capable of weighing it up.

I find that odd given the previous finding was that those issues are all so complex it was unlikely a child could consent. It’s a strange one, we draw a line to say under-16s cannot consent to sex but seem hesitant to apply a similar line here when the consequences are (just as? more?) long lasting.

Oh dear, the line coming from the judges now is that if children are warned about the consequences: sterility, effectively no sexual function (unless as a passive entity), being a life-long medical patient on drugs that in the long term have a negative effect, then that might be sufficient.

Thanks Sarah if you ever read this.
I'm finding it hard to follow tbh

Right, the discussion has moved onto this being a special treatment that needs to be handled differently. It should be interesting to see how the court responds to that.

Sarah Phillimore expressed that far better than me:

twitter.com/SVPhillimore/status/1408011148662906888

My impression is the judges view is that maybe it can but that's in the medical domain and for doctors either to make their practice robust enough or to say it's not possible.

In fact, the judge has just said that the claimant (Bell) lost on the point that consent cannot be given by a child.

That's the point isn't it - can consent be given against the backdrop of what one of the judges has just called a 'controversial treatment'.

I think Hyam QC is doing well in the circumstances in that so far he does seem to have anticipated the next curveball that comes from the judges.

I think it's more than that, the Tavistock might have been acting unlawfully in certain actions but overall their framework was not inevitably going to cause them to act unlawfully.

Therefore, the appropriate remedy should not have been via a judicial review but action taken against the specific actions.

Doesn't sound like the judges are happy on this legal point that Tavistock was doing anything unlawful.

One of the judges is back to the point that this is a judicial review claim that the defendant has acted unlawfully, and the High Court judgement doesn't explain the illegality but does criticise how they acted.

The judge just doesn't see the illegality set out in the decision of the divisional court (the High Court).

The seagulls get picked up pretty well.

If you listen, hearing the judges is reasonably OK because they're sat and closer to their microphones. Counsel are standing and the desk placed microphones are mainly picking up sound local to them. One solution would be for counsel to sit but that would cramp their style.

Sarah philimore live tweeting but also can't hear well.

mobile.twitter.com/SVPhillimore/status/1407996152470028288

The microphone is too near the bundles.