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

[FindTheTruth]

The appeal hearing will be live streamed this Wednesday 23 & Thursday 24 June, 10:30am

Background

1. The High Court decided in Mrs A and Keira Bell’s favour on 1st December 2020 that puberty blockers and cross-sex hormones are experimental treatments which cannot be given to children in most cases without application to the court. Full details of the original case:

www.transgendertrend.com/keira-bell-high-court-historic-judgment-protect-vulnerable-children/

1. The High Court decided in the case of AB on 26 March 2021 thatPARENTScan consent to their children receiving puberty blocking treatment when their children lack the capacity to consent.

1. Court of Appeal 23 & 24 June 2021 Keira Bell and Mrs A’s legal team is dealing with legal submissions from 7 intervenors who want to see the judgement of the Divisional Court overturned. “A significant task in defending the judgement of the Divisional Court. We are facing very well resourced opponents – the Tavistock being funded by the State and the other intervenors”.

Most of us aren't lawyers (I'm not anyway) and the judges are new to this case and are dispassionately looking at facts and arguments and the technicalities of exactly what they're meant to be deciding.

If the QC today had been ready with a robust answer to their question then we wouldn't be on this thread discussing it. Unfortunately he seemed a bit wrong footed by the question.

This is why the law isn't a science but an art. It's about being persuasive and confident and making a good case. It's not really about truth. It's about whoever makes their particular truth most persuasive on the day.

@rabbitwoman

This bit:

*be satisfied that there is a sufficient evidence base and/or experience of using the medicine to show its safety and efficacy
*take responsibility for prescribing the medicine and for overseeing the patient’s care, including monitoring and follow-up

So, what am I missing?

Quite.

These words are professional guidance not the law, though. I’d need to go back to the Medicines Act and/or human medicines regulations to see whether this might have been an alternative avenue. IANA lawyer or prescriber though so someone else may have better insight.

The Saatchi Bill failed in 2015 though - this sought to remove the risk of prosecution for doctors who harmed patients by prescribing experimental treatment, so this is a remedy in some circumstances. pharmaceutical-journal.com/article/news/saatchi-bill-defeated-at-emotionally-charged-healthwatch-uk-debate

Sorry, just thinking aloud here.

I don’t think that’s as uncommon as you might think. As in MF’s case, the appeal found the tribunal had erred in law, and ordered a fresh tribunal

I don't think the tribunal hasn't happened yet. Only the preliminary matter has been heard.

I don’t think that’s as uncommon as you might think. As in MF’s case, the appeal found the tribunal had erred in law, and ordered a fresh tribunal

That's not true.

They'd never even got onto the Employment Tribunal bit. Before they could start, the needed to establish whether the belief in two sexes was protected under the Equality Act.

Normally when someone alleges discrimination, it's in a category already understood by the court, e.g. discrimination on the basis of sex, race or religious belief.

No one's ever claimed discrimination based on gender critical beliefs (in biological facts) before, so the court had to be satisfied that it was allowed under the category of belief. The more junior judge found it wasn't and therefore the tribunal couldn't proceed.

The senior judges in the appeal court found that, actually, the first judge was wrong, Maya's belief's (in biological facts) are protected, and therefore the brakes are off and the original employment tribunal can continue.

No one ordered a new tribunal at any point.

@Signalbox

I don’t think that’s as uncommon as you might think. As in MF’s case, the appeal found the tribunal had erred in law, and ordered a fresh tribunal

I don't think the tribunal hasn't happened yet. Only the preliminary matter has been heard.

Or this, more succinct reply! (Cross posts!)

the point in the original case seemed to be that the judge was pointing out that GIDS was failing to apply Gillick competence, and the ruling was an attempt to correct that.

I thought judges were meant to have the opinion of the average man. So I asked my DP (a very average man).

Me: 'A question Darling.. Do people under 16 have Gillick Competence to consent to PB'
DP: 'No'
Me: 'Why?'
DP:
Me: 'Come on, why darling, I want your opinion'
DP: 'No'

Well I never got the thought track but the answer seemed conclusive.

Isn't that the same as all frivolous GC cases? e.g., Ann Sinnot's recent failure.

If you think that what happened in Ann Sinnot's application for judicial review was a failure for "GC cases", you didn't understand the EHRC's submission.

@highame

Fertility preservation is fine if you've been producing eggs/sperm but what if you don't want to go down that route because you really don't understand. How many 13 year olds want children?

Picking up this from earlier:

In most girls, menarche does not mean that ovulation has occurred. In postmenarchal girls, about 80% of the cycles were anovulatory in the first year after menarche, 50% in the third and 10% in the sixth year.[10] Regular ovulation is usually indicated by predictable and consistent intervals between menses, predictable and consistent durations of menses, and predictable and consistent patterns of flow (e.g., heaviness or cramping). Continuing ovulation typically requires a body fat content of at least 22%.

Spermarche/semenarche, the counterpart of menarche in females, is the development of sperm in males and typically occurs during genital Tanner Stage 4.

And the Tavistock are prepared to give blockers at Tanner stage 2 when neither girls or boys have mature gametes. So 'fertility preservation' for these children is medical nonsense.

When adult clinicians at GIDS, precious few of whom actually have a medical degree, don't understand the basics of reproductive biology, what chance do kids have?

@33feethighandrising

I don’t think that’s as uncommon as you might think. As in MF’s case, the appeal found the tribunal had erred in law, and ordered a fresh tribunal

That's not true.

They'd never even got onto the Employment Tribunal bit. Before they could start, the needed to establish whether the belief in two sexes was protected under the Equality Act.

Normally when someone alleges discrimination, it's in a category already understood by the court, e.g. discrimination on the basis of sex, race or religious belief.

No one's ever claimed discrimination based on gender critical beliefs (in biological facts) before, so the court had to be satisfied that it was allowed under the category of belief. The more junior judge found it wasn't and therefore the tribunal couldn't proceed.

The senior judges in the appeal court found that, actually, the first judge was wrong, Maya's belief's (in biological facts) are protected, and therefore the brakes are off and the original employment tribunal can continue.

No one ordered a new tribunal at any point.

Perhaps this is my misinterpretation but the judgement says: “it is our judgment that the Tribunal erred in law. In relation to the preliminary issue of whether the Claimant’s belief falls within s.10, EqA, we substitute a finding that it does. The matter will now be remitted to a freshly constituted Tribunal to determine whether the treatment about which the Claimant complains was because of or related to that belief.”

(Apologies as I’m going off topic but in my job (not a lawyer!) I’m dealing with two situations where a person has taken a case to court (a much lower court) and the courts have completely cocked up. So it wouldn’t necessarily surprise me if the JR is found to have been misconceived but it would disappoint me that the KB has been put through the mill, as it does in the two cases I’m dealing with.

I think that means it has to be a new judge not the same one who heard the preliminary matter and who presumably would have gone on to hear the rest of the case if they had decided in Maya’s favour at the preliminary stage.

Just caught up with this and it sounds very worrying. Can the Sonia Appleby case have any bearing on this case? I guess not before it's concluded. It seems like evidence is mounting of massive safeguarding failings at GIDS, surely this might give the judges here pause?

We don’t allow children under 16 to leave school, take jobs except under certain protected terms, sign contracts, have sex, or marry because they lack the capacity to understand the long term consequences of their actions. How could they consent to puberty blockers that cause osteoporosis, affect brain development, and destroy future fertility? Adolescents need to be protected and safeguarded from dangerous situations. Children with ROGD need at least six months of supportive non directed therapy to determine why they want to change their gender. Many are autistic, or have histories of trauma.
We need to stop all this blue/pink brain gingerbread unicorn nonsense, and let children grow up. Trying to explain trans to primary aged students may not be wise. What you wear or enjoy has nothing to do with gender.

I still find it bizarre that we even have to argue that it's wrong to medicate healthy children for not conforming to gender norms

This is not the issue at stake in this case. Yes, this case is linked to the broader issue of using PBs/CSH in adolescents, but the court is not making a judgement on that broader issue.

Hope I’m wrong, but it sounds like it may be an important point of law: that judicial review is the wrong way to challenge this.

What is the point of judicial review, if not to determine whether a public body is correctly applying the law?

Looking at the original argument:

The claimants’ case is that children and young persons under 18 are not competent to give consent to the administration of puberty blocking drugs.

I can understand the argument that the High Court overstepped in assigning age band (because competence cannot be neatly segregated by age as children mature at different rates). So this may be dismissed. I really hope not, but I could see the reasoning if it were.

Further, they contend that the information given to those under 18 by the defendant is misleading and insufficient to ensure such children or young persons are able to give informed consent.

Well the information given to the court is misleading and insufficient. Surely it is the court’s job to look at the information given to patients and determine whether it is even close to being accurate and sufficient. —Because— if Tavi have providing misleading and insufficient information surely a judicial review is precisely to correct way to stop them?!

While the court may not be able decide whether the all or no children are able to consent, they must be able to decide whether the Tavi have been acting unlawfully by giving treatment which children have not properly consented to.

IANAL, but I predict a split judgement here. Tavi have been acting unlawfully and need to review their own guidelines. But the High Court was wrong to give age banded guidelines for how Tavi should be working.

It seems to me the problem is the law on capacity and consent assumes that the proposed treatment is something vaguely sensible.

A 16 yr old consenting to appropriate cancer treatment even with infertility as a side effect is simpler.

A bit like why advanced directives can only refuse treatment not insist on it.

The problem with puberty blockers is its a bit like consenting to have heart surgery because you as a patient 'feel' that is where the problem is when actually your cardiac tests are normal and your endoscopy shows you have a gastric problem. How does anyone go about assessing capacity to consent to that? The fault lies with the doctors who are proposing the treatment in the first place and the law is not designed to take that into account.

Seems to me the only hope really is lots of the judgements in cases of individual children seem to spot there is something not quite right about how we say we think about capacity and make a sensible judgment in a more paternalistic fashion than you might expect.

The fault lies with the doctors who are proposing the treatment in the first place and the law is not designed to take that into account

I think this is exactly right.

NICE and the Tavis own study found that PBs do not work in lessening feelings of dysphoria, or reduce distress. For boys, if they go on to later surgery they will have a penis too small to make a false vagina. For girls they will grow up to be very short men making 'passing' harder not easier. They have known negative physical effects.

So what's the point of them? The Tavi are fighting for the right to prescribe a useless treatment.

Foxy is on Twitter saying that this case is all about rolling back abortion rights.

Foxy is by degrees replacing his critical capabilities with his sense of moral righteousness. Not the best self-development route for a lawyer.

I had also thought this was about Gillick competence in that the earlier case had said everyone under the age of 18 would need a court decision. The argument is that some under 18 are competent to make this decision. Gillick is usually used for one off cases, the prior judgement would mean Gillick in all cases. I may be wrong but that's one of the things I thought from yesterday. I also wonder how Keira's QC will bring back how to make a judgement when something is not unlawful. Tavi didn't do anything unlawful but procedurally and in many other ways, they were dreadful

@ChloeCrocodile “What is the point of judicial review, if not to determine whether a public body is correctly applying the law?”

As rabbit said it’s not a personal case where Keira’s sue the NHS (maybe this is what should happened as much as I would hate NHS money having to go into GIDS malpractice claims), it’s a higher road to prevent harm.

All support to Keira Bell. I read today that there are 36,000 girls in US waiting for double mastectomies to pretend to be boys. That is scary and also big money!

Articus Keira does have another case but it's pending the outcome of the Cass enquiry. That case is about the Affirmation model.

Claiming a link or threat to current abortion legislation with this case is disingenuous.