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

Also the government aka Penny Mordaunt promised an investigation into ROGD. So there is widespread acknowledgement of the lack of solid research or evidence. Therefore one would expect clinicians to follow the precautionary principle and exhaust other approaches first. Clinicians are not obliged to provide treatments on demand.

They announced that investigation twice, but haven't done it once yet.

From Susan Evans twitter, it looks like they are filing papers this week to request that a judicial review is granted. I really hope it is.

I'm not sure whether Gillick competency is the right thig to compare this to, as wasn't that a case about whether and when a child can consent without their parent's involvement. That wouldn't usually be the case here?

However I am not sure in what detail the court will examine the medical evidence on PBs. Will it be a fairly cursory overview - which would be easier for the Tavi to defend, I would think, or will the hearing examine the case for and against PBs in detail, in order to determine whether or not Gillick competence is applicable?

Well, that's the question, isn't it? But since Sue Evans is married to Marcus Evans and both were HCPs at the Tavi, I hardly think their legal team will be ignorant of the medical issues.

Gillick may well be a diversion. The real question is whether the NHS has the right standards to offer PBS in the first place (at all, or a threshold to offer).

I'm not sure whether Gillick competency is the right thig to compare this to, as wasn't that a case about whether and when a child can consent without their parent's involvement. That wouldn't usually be the case here?

I'm just going on what Mrs A's lawyer said in the Guardian article from the OP. The lawyer said that the nub of their case will be whether Gillick is applicable.

Although, as PPs have said, most decisions to prescribe PBs are done with parental support, so Gillick would not be relevant, it will still be momentous if the court finds that Gillick-competent under 16s cannot consent to PBs, because it would be an acknowledgement that the long-term effects of PBs are so serious and difficult to understand as a child that consent is not valid.

XX I am a lawyer and will add/answer some of the points you have made, plus some random thoughts of my own.

As the legal papers haven't been lodged yet it's hard to see exactly what case Sue Evans and Mrs A will be making.

I share your concerns that this case could go the same way as Maya's, but I wouldn't want to prejudge that without understanding the detail of the grounds for the judicial review. And as we have seen with Maya's case, even where there is a loss, so much light is shone on the whole horrid mess.

In a judicial review the court is concerned with whether a public body has, in making a particular decision, acted lawfully, within its powers and rationally. Traditionally the court doesn't substitute it's own decision and instead will ask the public body to make the decision again. In theory the result could be the same. However often the terms of the judgment will be such that the public authorities will have to make a different decision .

The case might be argued along the lines that the Tavi has not considered Gillick competence at all, or has not done so adequately.

My understanding of Gillick is that it really demands a case by case assessment, considering the impact of the treatment, the impact of not having it, the age and understanding of the child etc, rather than a blanket "no child can consent to treatment x". I think it's unlikely that a court would make any blanket statements that no child could ever consent to PBs, although they could set the bar high in terms of requiring a very sophisticated level of understanding from a child before they were said to have Gillick competence, due to the impact of the treatment.

Anyhow, it remains to be seen exactly on what basis the claim is being brought.

My understanding of Gillick is that it really demands a case by case assessment, considering the impact of the treatment, the impact of not having it, the age and understanding of the child etc, rather than a blanket "no child can consent to treatment x". I think it's unlikely that a court would make any blanket statements that no child could ever consent to PBs, although they could set the bar high in terms of requiring a very sophisticated level of understanding from a child before they were said to have Gillick competence, due to the impact of the treatment

Hi, TheCuriousMonkey thank you - that is very helpful and interesting. WRT Gillick, you are right that there is at present AFAIK no specific treatment that is excluded from consent if a child is Gillick competent. However, as discussed earlier in the thread, there is a precedent as regards clinical trials, to which a child cannot consent, regardless of Gillick competence. So there is an entire category of treatments for which Gillick cannot be used.

Also, as you probably know better than me, Gillick case law is limited as, usually, when Gillick is invoked, the parents are unaware that medical treatment has taken place, so there is no one to bring a case (as, obviously, the child who is the patient is unlikely to do so). So most case law that has involved Gillick hasn't directly tested the principle of a child consenting to treatment - Gillick competence has been used more as a guideline for judges in determining when to order treatment than as the deciding factor: the judges have taken Gillick competence into account, but ultimately the court has determined whether the treatment should take place, not the child. A downside of this is that case law is both sparse and arguably inconsistent. (apologies- I'm sure I am teaching you to suck eggs, am just laying out the situation as I understand it).

I would guess that the pending case may use Re E [1993] as a precedent, in which a judge over-rode a 15 year old Jehovah Witness' refusal to have a blood transfusion to treat leukaemia (even though his parents supported his refusal), on the grounds that a 15 year old cannot fully comprehend dying, so he could not meet the test of needing to understand the consequences of refusing.

XX you are definitely not teaching me to suck eggs at all, this is not really my area of expertise (well judicial review is but not specifically Gillick).

I think it's a good point about clinical trials.

Also as you and others have pointed out, Gillick was a case where a mother didn't want her children to get the pill without her consent.

AFAIK, that is not necessarily the same here, where the parents are to a lesser or greater extent involved with the process.

Realistically, most families will take a joint approach to treatment of whatever sort and parents are (one would hope) able to make a fairly accurate assessment of the capacity of their child to understand and make a decision jointly. For example I made a decision about a certain medical treatment when my son was 4 and didn't give him any say. Now he is 9 I would probably discuss with him and take his views into account but still make the ultimate decision myself. It will be different again when he is 14.

To be honest I'm just as concerned about parents being given inadequate or inaccurate information and therefore not being able to support their children.

What I am hoping is that this case looks at whether anyone can consent to puberty blockers when their effects long term are still not understood. Can a child be expected to understand something that really even the doctors can’t answer with any certainty?

What I am hoping is that this case looks at whether anyone can consent to puberty blockers when their effects long term are still not understood. Can a child be expected to understand something that really even the doctors can’t answer with any certainty?

The difficulty with that argument is that the same is true of a large number of other drugs and procedures. By definition, when any treatment is new, we don't know its long-term consequences. Drugs for children are a particular grey area, as pharma companies are reluctant to test drugs on kids, so many medications have to be prescribed off-licence/label, i.e. without assurance from the manufacturer that they are safe for children. So the "we don't know the long-term consequences" is not a reliable way of singling out PBs from other treatments for which we do allow children to give consent. Mrs A's lawyers are probably better off arguing the opposite: we do know (some of) the long-term consequences of PBs, and they are so serious and irreversible that a child could not fully comprehend them - drawing a parallel with Re E.

Sue Evan's case to be discussed on LBC in 9-10am slot.

On now 9.20am

Is this case being heard by an individual judge or a panel of judges? Was the judge self selecting? If so, that might have implications for the decision

XXcstatic

I know what you’re saying but I actually can’t think of many medications or treatment options that are given to children where the long effects aren’t known. Even medications that are off-label, many are studied and long term effects noted. I do agree that there should be strong emphasis on the side effects we know. I say this repeatedly and the Monitors don’t like it and frequently report, but children who go on puberty blockers then cross sex hormones will have zero sexual function. There should be no room for prudishness in court.

Yy not

Thats another big unanswered question. What is the potential for a healthy relationship . What kind of person would repeatedly have sex with someone who hadnt the capability to enjoy it. Is that something we want these children to grow up thinking? That its normal and healthy?

I haven't read all messages yet, but I wonder whether a comparison with refusal of procedures - in particular permanent sterilisation - is something that could be argued. I've heard enough anecdotes about women wanting a sterilisation (or hysterectomy in case of very serious period symptoms and not wanting children) and being refused this, because "they could change their mind". If that is a valid argument for adults, why would "but they could change their mind" not be equally valid for adolescents or children.

(Refusing to perform sterilisation may well be solely an NHS thing, and it can be obtained without problems privately, not sure.)

The example of Gillick competent children not being able to consent without parental support to participate in research, seems like the appropriate parallel. However this ‘treatment’ of blockers doesn’t seem to even have the safeguards that research participation would do.
The results of this treatment aren’t routinely followed up -even though there are concerns about lack of bone density issues, lack of normal cognitive maturation etc arising from puberty blockers, so there urgently needs to be follow up done. Furthermore the results of giving the puberty blockers are not publicly reported as research outcomes would be.

And because this treatment is not research (but yet it seems to have been established as routine medical treatment without any evidence) no supervisory body seems to be prepared to insist that giving blockers like this should be stopped due to any emerging evidence about adverse effects on the child. Instead, more kids and younger and younger kids seem to be being given puberty blockers. Where are the safeguards for children around being offered unevidenced care? Whether that’s with the child’s own ‘informed consent’ , or with their parents’ ‘informed consent’.

Bloody hell BBC twitter.com/RealSamVimes/status/1214502825948041216?s=19

The results of this treatment aren’t routinely followed up -even though there are concerns about lack of bone density issues

They don't even know how many children are put on hormone blockers according to the response to a FOI request last year:
We have collated data for young people under 15 years olds referred to the endocrine clinic and who have provided consent for hormone blocking treatment as part of that referral. We assume that these young people have gone on to receive hormone blocking treatment. We do not have collated data for young people referred for blockers aged between 15 and 16 years old.

Also this from the same FOI request:
For each of the years between 2012 and 2018, could you please provide me with the number of patients with gender dysphoria under 16 who have been given hormone therapy (hormone blockers) WITHOUT parental consent

Response:
None of the young people under the age of 15 years old have needed to access blockers without parental consent.

Are they implying that 15-year-olds were given blockers without parental consent? Or do they just not know because: We do not have collated data for young people referred for blockers aged between 15 and 16 years old. (Why do they not know?)

FOI 18-19333 on this page (I can't seem to do a direct link).
tavistockandportman.nhs.uk/about-us/contact-us/freedom-of-information/foi-disclosure-log/

From Imnobody's link: The huge jump may be partly because @TaviAndPort advertised their service on a BBC children's TV programme first shown in 2014, and repeated numerous times since then. In this clip, Dr Polly Carmichael talks about the 'benefits' of taking hormone #pubertyblockers.

Figures from the FOI request I linked to:

Accepted referrals to GIDS service
2012 182
2013 251
2014 323
2015 761
2016 1,272
2017 1,570
2018 1,451

Are they implying that 15-year-olds were given blockers without parental consent?

I would strongly suspect it does imply that, OldCrone. The natural way to slice the data would be under-16s vs 16 and over. The fact that they have sliced it into under 15s vs 15 and over is suspicious.

Have the BBC stopped promoting that CBBC (!) video which implies both no side effects from puberty blockers and which also has Dr Polly describing the puberty blockers as a breathing space or pause? Isn’t that exactly what that Health Research Authority report told the Tavi not to do in their information for patients? So the BBC should not be showing it any more to kids as unbiased information, should they?
Though why CBBC need to cover this issue in such detail at all, I don’t know.
The way it’s described as some harmless Peter Pan thing, stopping you growing up into a man or a woman is so disingenuous. Children are still ageing growing into adulthood. ‘Just’ with the blockers, now doing without the maturation and physical and emotional benefits of going through normal puberty and taking on an unknown new set of medical and psychological risks by artificially stopping that puberty.
I think the BBC makes some fantastic kids programmes but this sanitising and minimising of facts would be really inappropriate even if it were for an adult audience.

Surely GIDS can't rely in the suicide risk when their own experiment mentions that children taking blockers show an increased risk of suicidality?

xx but the fact is that children’s treatment is usually more restricted due to lack of research which is partly why there are poor outcomes for childhood cancers such as brain tumours and other solid tumour malignancies. So they hesitate to give children with brain tumours who will die from their illness experimental treatment yet are effectively handing out puberty blockers to gender dysphoric children, despite it being experimental treatment. There is no logic or rationale to this at all imo

The BBC is certainly complicit in the promotion of the idea of puberty blockers being a ‘pause button’, interesting that referrals doubled in the year after I am Leo was aired.
Perhaps in the spirit of fairness they could do a follow up show based on the experience of a detransitioners such as the young women who featured in the Swedish documentary ‘trans train’