High court case on puberty blockers and consent

[bumpertobumper]

This week a case starts in the high court with a mother of a teen and a former gids nurse bringing a case that under 18s can't consent to puberty blockers.
Sorry if there is already a thread on this, had a look and couldn't see one.

https://www.theguardian.com/society/2020/jan/05/high-court-to-decide-if-children-can-consent-to-gender-reassignment?CMP=ShareiOSAppp_Other

I thought NHS treatment was based on best evidence. If there is no best evidence and / or potential possibility of harm then PB should be part of a clinical trial (if passed by ethics - which would be unlikely).

I wonder why is it approved treatment? What does the NHS base approval for PB on if impact of benefit / harm is yet to be evidentially determined? As previously discussed treatment with such profound / irreversible repercussions is experimental. Therefore the ability to obtain informed consent is / should also be under question - aside from issues with capacity - as there is nothing evidential to base treatment, and information to obtain consent, on.

What does the NHS base approval for PB on if impact of benefit / harm is yet to be evidentially determined?

I haven't seen an answer to that. This is the NICE page for triptorelin, which is the drug used in the UK for blocking puberty. NICE only recommend it for precocious puberty in children, not transgenderism.

bnfc.nice.org.uk/drug/triptorelin.html

For puberty blocking these children, we are talking at Tanner Stage 2, right, so 9-11 years old for girls and ~11 for boys.

If Gillick competence is assessed using age and severity, is it likely that these children will reach it at this age? I guess there can’t be a blanket answer here, but it seems like quite a high bar.

I think I share the reservation about this case being winnable and really addressing all the matters of concern, but it’s certainly heading in the right direction, and as I said earlier, the key thing here is exposure.

Hi Muststop. The court case is about a 15 year old. 16/17 is a grey area: they can definitely consent to treatment (Family Law Reform Act 1969) and a recent Supreme Court judgement about the MCA (though about DOLS, not a medical decision) held that 16/17 year olds should essentially be treated like adults as regards treatment without consent, though that was on Human Rights grounds. But there are still grey areas around refusal of treatment if in their best interests, and whether the courts can compel it.

While the concept of a child being able to consent to some procedures/treatments has therefore been extended to other areas than contraception and we talk about children being Gillick competent it is still, as far as I am aware, accepted practice that the more serious the intervention or consequences of not intervening are or the younger the age of the child the less likely it is for them to be competent. Therefore a 15 year old can consent to me checking their blood pressure or a blood test but not to having their appendix removed

This is not correct. A 15 year old can consent to any procedure (apart from within a CTIMP) as long as she can understand its consequences and the consequences of not having it. However, the more complex the procedure, the more difficult it is to understand. TBH, I think most 15 year olds would easily be Gillick competent to consent to having their appendix out, but many 13 year olds would not, though they could consent to a BP check

&Given that I achieved 13 O-Levels, 5 A levels And 2 S-levels as a teenager and shortly afterwards a first class science degree from the UK’s premier science university*

Would this still have been possible if your IQ had been lowered by 10% through the use of PB? And presuming you have had surgery, this would have been made a lot more complicated. You would also have lost any chance of fathering kids (even through sperm storage) and sexual desire/orgasm. You might look back with the benefit of age and say that none of this matters to you but you cannot make that decision for children today, many of whom would escape a life as a medical patient as they find they are happy with their body after surgery.

I think most 15 year olds would easily be Gillick competent to consent to having their appendix out, but many 13 year olds would not, though they could consent to a BP check

So why do you think the court is likely to find that an 11-year-old is competent to consent to being made infertile and having no sexual function as an adult?

happy with their body after puberty*

You would also have lost any chance of fathering kids (even through sperm storage) and sexual desire/orgasm. You might look back with the benefit of age and say that none of this matters to you but you cannot make that decision for children today, many of whom would escape a life as a medical patient as they find they are happy with their body after surgery

This. If we could reliably know which children would identify as trans all their lives, I would have far fewer problems with PBs (though I would still be concerned about osteoporosis etc). At the moment, though, as oldcrone says, we are treating patients blindly, knowing that many if them would have desisted if left untreated. And, if treatment continues past the natural age of puberty, it is irreversible.

So why do you think the court is likely to find that an 11-year-old is competent to consent to being made infertile and having no sexual function as an adult

Where have I said that I think that?

Old Crone thanks. Yes - completely different clinical indication. Two different patient populations.

Where have I said that I think that?

You said: I would be astounded if this case succeeds unless there is a particular reason why the individual child concerned might have an impaired capacity to consent, such as cognitive impairment.

Sorry. I confused the discussion about children being given puberty blockers aged around 11 with this case which is about a 15-year-old. So the situation is slightly different, but I think 15 is still too young to make a decision about whether to be sterilised which is what puberty blockers inevitably lead to.

I'm not sure how the outcome of this case will influence policy going forward - if it is found that a 15 year old is competent to consent, will there be any discussion around what the minimum age should be, or will that require another case to be brought? Will it be assumed that because a 15-year-old is deemed competent that an 11-year-old can also consent to this treatment?

The consequences of not having your appendix removed when it needs to be are

1. Well established scientifically and clinically
2. Easy to explain to a 15yo.

The consequences of having puberty blockers are not.

Oh and we know a lot about when and how to remove an appendix because we do it a lot and have been doing it for a long time.

Neither apply to PB used in this way.

For puberty blocking these children, we are talking at Tanner Stage 2, right, so 9-11 years old for girls and ~11 for boys

If Gillick competence is assessed using age and severity, is it likely that these children will reach it at this age? I guess there can’t be a blanket answer here, but it seems like quite a high bar

Very unlikely to reach it at 9-11, I would think. There is no case law for that age group, though, AFAIK. And, in practical terms, it's also much less likely that a younger child would be able to obtain treatment without a parent's support.

I think I share the reservation about this case being winnable and really addressing all the matters of concern, but it’s certainly heading in the right direction, and as I said earlier, the key thing here is exposure Agree. If the case is lost, we are no worse off than we are now in medico-legal terms. The downside is that Mermaids et al will claim that the courts have found that PBs are safe but, balanced against that, is the publicity and people waking up to the fact that children are receiving these drugs at ever younger ages.

Will it be assumed that because a 15-year-old is deemed competent that an 11-year-old can also consent to this treatment?

No. The big difference between under 16s and over 16s is that over 16s are presumed to have capacity, whereas, for under 16s, you have to assess each child and each situation individually. If this case is lost, nothing changes. If it is won on the principle of Gillick's applicability (as opposed to the individual child's capacity) - and it is bound to go to the Court of Appeal and probably the Supreme Court if it is - it would be a momentous change.

Hi RobinMoiraWhite, I'm very clever too and got lots and lots of O levels. It didn't stop me from making some incredibly stupid and unwise decisions during my teens and early adulthood. I'm still living with the results of some of those unwise decisions now, in middle age. Respecting children and teenagers involves acknowledging that brain development in adolescence is uneven and someone can exhibit academic brilliance years before they can properly appreciate the long term consequences of their actions and decisions. To treat young teens as fully competent just because they are good at passing exams is extremely disrespectful and dangerous because it takes no account of their vulnerability at this stage of development.

The children referred to GIDS today are not 'equivalent children' to those who were in your situation. We are primarily concerned in this case with those who exhibit ROGD. This is an entirely new cohort.

• There has been a complete reversal in the sex ratio - around 70% of referrals to GIDS are now female
• These children show no signs of gender dysphoria prior to adolescence
• Many of these children do not identify as the opposite sex but as non-binary or something else
• These children arrive at GIDS having already socially transitioned

And for this particular brand new cohort there has been an increase of 4000+% in yearly referrals in less than a decade.

These children are nothing to do with you.

Unless you're just borrowing the name you're the barrister who represented Katherine O'Donnell against the Times at an employment tribunal. You lost that one.

The children referred to GIDS today are not 'equivalent children' to those who were in your situation.

Some of them are. I linked earlier to an interview with Rupert Everett who said this:

“I really wanted to be a girl. Thank God the world of now wasn’t then, because I’d be on hormones and I’d be a woman. After I was 15 I never wanted to be a woman again.”

The gender clinic might be seen as a good idea by homophobic parents of effeminate boys. I think boys still outnumber girls in the youngest age groups referred to the clinic.

But this case is about girls who exhibit ROGD.

but I think 15 is still too young to make a decision about whether to be sterilised

Well yeah, when you consider how women in their late 20's, 30's and even 40's are treated by the NHS when actually requesting a sterilisation.

Grown women with multiple children, who know another pregnancy would seriously harm their health, cannot get a sterilisation because they might change their minds or meet a man in the future who wants babies () but we are saying young teens are competent to make these decisions?

11 y/o boys and younger are a tiny minority of GIDS referrals. That cohort has remained fairly stable over the years compared to what has happened with adolescent girls and to a smaller extent adolescent boys.

Jeez robin you passed some exams so what.

We are talking here about children

And deciding the rest of their adult life’s

Not just some exams

The recent HRA investigation at GIDS told them to stop telling children (and their parents) that PBs are pauses to allow reflection and to be upfront that they lock in a medical pathway that will lead to sterilisation (and a host of other possible side effects).

Anyone on this thread suggesting that this does not have a significant impact on Gillick competence is being misleading. It's possible that a Tanner III child could "consent" to a pause but it's a very different matter to think the same child could "consent" to sterilisation and permanent loss of sexual function.

It's possible that a Tanner III child could "consent" to a pause but it's a very different matter to think the same child could "consent" to sterilisation and permanent loss of sexual function

I'm reminded of that tweet where a certain person stated ",removal of sterilisation clause is key"

I'm reminded of that tweet where a certain person stated ",removal of sterilisation clause is key"

Precisely.

Anyone on this thread suggesting that this does not have a significant impact on Gillick competence is being misleading. It's possible that a Tanner III child could "consent" to a pause but it's a very different matter to think the same child could "consent" to sterilisation and permanent loss of sexual function*

Not sure if this means me but, if it does, just a reminder that I am only expressing an opinion on how the case will pan out. I am not in a position to mislead as, like everyone else, I don't know what will happen, I can only speculate.

If I understand correctly what Mrs A's lawyers will argue, it will indeed be that Gillick was never intended to permit consent to a procedure with these potential consequences. Ethically, I agree. Legally, I think it will be tricky. I think the most likely outcome is that the case fails or that it succeeds but only on the basis of the individual child's lack of capacity, but not the principle of Gillick. I would be absolutely delighted to be proven wrong though.