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”.

"A team of clinicians, and a parent, and a child all agree. In the public interest to permit treatment in this case."

I'm not sure I agree. In the Charlie Gard case the parents wanted treatment to continue and there was a clinician in America willing to provide treatment. The UK Clinicians disagreed which is how this came to court.

As I understand, in the Charlie Gard case, the treatment suggested was a meaningful, experimental treatment. It just wasn't going to be effective for poor Charlie. But there are also dodgy, unethical clinicians who exploit eg cancer patients with quackery. Just because you have a doctor offering treatment and a family that want it, does not mean that it is in the best interests of a child to have the treatment - even if the child also wants to have it.

Whatever the appellant is trying to argue about consent, Kiera Bell's experience as a living breathing example of how young people cannot truly consent can not be overcome. If just one person, i.e.Keira, says the experience has physically and psychologically harmed her, then for me that means that the Tavistock/Gids must stop the affirmation/medicalisation approach. Apologies Keira for using your horrendous experience in this way to make a point. Your bravery is without compare.

@nauticant

What’s your pause nauticant?

My pause is that it means there needs to be proper discussion to work out the nature of consent for the child and particularly in relation to puberty blockers. That's what the court has moved onto now. The big question for me is how the appellant will bridge the gap between treatments such as contraception and abortion vs the outcome caused by PBs then cross-sex hormones.

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?

Because if one of the clinicians is Webberley I don't think they should be given a free pass.

@noneedtoexpelme

Whatever the appellant is trying to argue about consent, Kiera Bell's experience as a living breathing example of how young people cannot truly consent can not be overcome. If just one person, i.e.Keira, says the experience has physically and psychologically harmed her, then for me that means that the Tavistock/Gids must stop the affirmation/medicalisation approach. Apologies Keira for using your horrendous experience in this way to make a point. Your bravery is without compare.

Yep. Surely the point is that KB did indeed consent, and was thought to have capacity, at the time, but in hindsight regretted giving that consent. And therefore, if the treatment is not proven to be entirely reversible, significant limits should be put on that ability for a minor to consent irrespective of whether parents and clinicians think at the time the child is fully informed.

Because if one of the clinicians is Webberley I don't think they should be given a free pass. I'd be stronger than that.

How will they get over these issues: abortion vs pb's no similarity
consent to experimental drugs when life depends on it vs pb's

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.

And that's lunch

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

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)

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

We've all been struggling with the audio oldwoman

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.

@nauticant

What’s your pause nauticant?

My pause is that it means there needs to be proper discussion to work out the nature of consent for the child and particularly in relation to puberty blockers. That's what the court has moved onto now. The big question for me is how the appellant will bridge the gap between treatments such as contraception and abortion vs the outcome caused by PBs then cross-sex hormones.

Hmm yes that is interesting- 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? I think abortion is more Directly comparable with PB than contraception given we know that the effects of contraception are reversible but obviously not in the case of termination. I’d say there are similar arguments as to whether a child can fully consider the future implications of abortion too.

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?

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

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

You can't have another puberty later.

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

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. 🤔

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.

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.

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.

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?

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.

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!)

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.