NHS Trust - trans identifying child "the child’s preference should prevail even if the child is not Gillick competent"

[Another2Cats]

Two days ago @KnottyAuty posted this thread about the results of FOIs that she and others here had sent to local NHS trusts. They put in an awful lot of work.

https://www.mumsnet.com/talk/womens_rights/5517499-seeninhealth-interactive-map-of-unlawful-nhs-single-sex-and-trans-self-id-policies-for-whole-of-uk-check-out-your-trust-and-find-template-letters-to-call-for-the-return-of-lawfulness-to-the-nhs

So, I noticed that one of my local NHS trusts was on the list and decided to have a look. I live in Peterborough (thank you to whoever did the FOI for my city) and did I get a shock when I read their “Same Sex Accommodation Policy”.

Peterborough is a little complicated as the hospital etc is run by one trust (North West Anglia) but mental health and learning disability care is provided by another trust (Cambridgeshire and Peterborough). This is about the trust that provides mental health and learning disability care.

The policy was ratified on 28 July 2023 and is due for review on 23 July this year. I will definitely be making myself heard on this one.

There were a number of issues I had with their policy (which I will come on to) but it was the part on children that I found most concerning.

In ‘Section 7.4 Particular considerations for children and young people.’ there is the sentence:

“If possible, the child’s preference should prevail even if the child is not Gillick competent.”

I cannot begin to say how much of a problem that is.

I really cannot believe that an NHS policy would say something like this.

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For those that are aware of this term, please skip the next few paragraphs. But if you’re wondering what this means then:

For context, the term ‘Gillick competent’ refers to a very old case that went to the House of Lords back in 1985 (Gillick v West Norfolk & Wisbech Health Authority [1985] UKHL 7)

The case was about the pill. Mrs Gillick objected to doctors being able to prescribe the contraceptive pill to her daughters under the age of 16 without her consent or knowledge.

She won at the Court of Appeal but then lost in the House of Lords (this was in the days before the Supreme Court).

The House of Lords ruled that children under 16 can, in certain circumstances, consent to medical treatment even if their parents do not (and vice versa) as long as they fully understand what is happening.

The House of Lords said:

[189] ...I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.

Gillick competency has been at the centre of some very distressing cases. For example, in 2021 there was a case involving a 15 year old girl who suffered from sickle cell disease. She was a Jehovah’s Witness, as was her mother.

Sometimes, people with this disease require blood transfusions. Jehovah’s Witnesses refuse blood transfusions for religious reasons.

In this case, with a Gillick competent child’s refusal to consent to treatment in circumstances which would probably lead to her death or serious permanent harm, the Court held that, while due regard would be given to the wishes of the child, those wishes are not determinative in cases that affect the life or death of the child. The Court ordered a transfusion but rejected an application from the hospital for any further transfusions beyond her 16th birthday (A NHS Trust v X (Re X (A Child) (No 2)) [2021] EWHC 65 (Fam)).

Gillick competency was also a part of the Bell v Tavistock NHS Trust case about giving puberty blockers to under 16s. Although Bell won at first she lost at the Court of Appeal who said that it was possible for under 16s to consent to take puberty blockers (Bell v Tavistock & Portman NHS Trust [2021] EWCA Civ 1363)

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Anyway, enough about Gillick, and back to Peterborough NHS Trust

To put that quote into context, here is the whole of that section:

7.4. Particular considerations for children and young people.

Gender variant children and young people should be accorded the same respect for their self-defined gender as are trans adults, regardless of their genital sex.

Where there is no segregation, as is often the case with children, there may be no requirement to treat a young gender variant person any differently from other children and young people. Where segregation is deemed necessary, then it should be in accordance with the dress, preferred name and/or stated gender identity of the child or young person.

In some instances, parents or those with parental responsibility may have a view that is not consistent with the child’s view. If possible, the child’s preference should prevail even if the child is not Gillick competent.

More in-depth discussion and greater sensitivity may need to be extended to adolescents whose secondary sex characteristics have developed and whose view of their gender identity may have consolidated in contradiction to their sex appearance. It should be borne in mind that they are extremely likely to continue, as adults, to experience a gender identity that is inconsistent with their natal sex appearance so their current gender identity should be fully supported in terms of their accommodation and use of toilet and bathing facilities.

It should also be noted that, although rare, children may have conditions where genital appearance is not clearly male or female and therefore personal privacy may be a priority.

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I think that what concerns me most about this is that sometimes parents (and professionals) can be affirming of children who are trans identifying (“Yes, this 11 year old boy is really a girl”).

But this policy does at least acknowledge the possibility that children who present as trans-identifying may not be Gillick competent.

But then they go and say that they should be pandered to anyway, even if they are clearly not Gillick competent.

For children with mental health or learning disability issues, Gillick competency is a real issue. Especially in in-patient settings.

The whole thing is really quite egregiously bad, in my view.

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The rest of the policy is in line with the NHS England policy, eg

“Transgender people should be accommodated according to their presentation: the way they dress, and the name and pronouns that they currently use.

This may not always accord with the physical sex appearance of the chest or genitalia.”

While this is bad enough in any hospital, it is particularly bad in mental health settings. There was a thread back in January reporting a case where a trans-identifying woman was placed on a male psychiatric ward and was raped within the first hour that she was there.

https://www.mumsnet.com/talk/womens_rights/5475381-well-this-was-totally-predictable

I know I shouldn't be surprised that this sort of thing was written, but it really does make me despair at the sort of people who are running the NHS

Brace yourself: we found that 66% of all trusts recommended overriding parental concerns regarding placement of minors, even if the child is not Gillick competent:

Let’s see if we can get those numbers a bit more legible. Try this:

Ha @TwoLoonsAndASprout you beat me to it!

Here's a bit more from the as yet unpublished analysis:

66% of NHS England Trusts with inpatient facilities specify that gender questioning children should be accommodated according to their wishes, even if they are not Gillick competent and those with parental responsibility have a different view. This removes parental authority which is contrary to the recommendations of the Cass Review see page 187-189
Here what is being said is, explicitly, even if this child has been assessed and has been deemed to NOT be mature enough to understand the consequences of their decisions, you must nevertheless let them make this decision (and simultaneously remove their parents' ability to safeguard and make a different decision).
Many trusts gave the rationale: “.. they are extremely likely to continue, as adults, to experience a gender identity that is inconsistent with their natal sex appearance so their current gender identity should be fully supported ….” However, research data shows the opposite - i.e. gender questioning children are more likely to desist than continue https://segm.org/studies
Insight: this equates to social transition of children, many of whom will not have received an assessment or diagnosis from a gender clinic, without taking parental views into account. This runs counter to the recommendations in the Cass review.

Edited to remove broken hyperlink and replace with page numbers
And again to change the wrong to ...

This is a very concerning inconsistency. It really seems to be that those creating the policies understand the issues but have decided to follow the ideological recommendations from the political lobby groups.

I don’t think I’m stretching a point too much to say that the policies were created by political lobby groups - specifically by Press For Change.

This is child abuse.

How are medical leaders standing over this?

Why is nothing being done about this?

Absolutely terrifying

There’s a timeline here of roughly how current NHS policies were created:

seeninhealth.org/map-timeline/

I'm not sure that the people creating the policies (Isla Bumba and her ilk) do understand the issues. I think there is so much activist material swilling around and a general belief that "being kind" is a panacea to all the world's problems that these polices get signed off (by the people who SHOULD understand this issues - whether they do or not is a different matter) without proper scrutiny and analysis as they appear to adhere to a staff retention strategy of inclusivity.

I hope that is the case anyway because the wilful foisting of these polices on the general public is too sinister for me to contemplate.

Obvs. the activist organisations are wilfully foisting but I hope they would be a minority. But every time I believe I can no longer be shocked by any of this something even more heinous pops up and so I am prepared to believe that this was all done with full knowledge and understanding of senior NHS bods. I just don't think they've got the competence to manage it ...

Bloody hell. So they're ignoring Cass and the law.

Usually the NHS is litigation-averse to the nth degree. What on earth is it about the magical trans word that makes them throw all sense and caution to the wind?

Most of these policies pre-date Cass (and the SC) by quite some time, and nuggets like this are usually buried in extremely long and convoluted larger documents. I’m not in any way letting anyone off the hook, but I will bet you many, many NHS staff will not even know that their policies contain such instructions.

This is brilliant. So helpful. I am in awe of SEEN in health.

You can see Stonewall running through that timeline like a stick of rock.

We are immensely grateful to SEEN in Health for hosting this data but @GreenAllOver and @KnottyAuty produced the timeline as part of the policy audit. Mumsnetters all the way

The timeline is entirely due to @GreenAllOver ‘s unbelievable digging skills - she absolutely needs an award for that!

She bloody does!

This needs lots and lots of publicity.

No mention of the possibility of, you know, helping the child achieve congruence with their body. What a ridiculous idea that would be.

I agree, but I think the thing that needs the most publicity is that all of these policies came from an advocacy group Press For Change who were working at government level but apparently without government oversight. These policies were handed down from on high, with virtually no accountability anywhere.

eta: The Department of Health advisory group Sexual Orientation and Gender Advisory Group (SOGIAG) which created most of the policies was effectively the same people as in Press For Change.

Yes. It highlights vulnerability in the NHS that leaves it open to litigation.

It’s astonishing. Christine Burns got Dept of Health to publish 10 pieces of guidance on transgender issues in slightly under two years (April 2007 to November 2008 - listed here <a class="break-all" href="https://web.archive.org/web/20081217142220/pfc.org.uk/node/613#equality" rel="nofollow" target="_blank">https://web.archive.org/web/20081217142220/pfc.org.uk/node/613#equality ). It looks like they didn’t get approval by Ministers or Government lawyers.

All of them were written by trans people (6 by GIRES, one by Stephen Whittle, two by Christine Burns / Press for Change, and one is service user stories). GIRES is a charity, Press for Change was set up as its lobbying arm with many of the same people.

They appear to have changed Dept of Health policy, not by a proper process of submissions to Ministers with options, pros and cons and a careful look at both sides, but just by publishing the asks of lobby groups as though they were required by the Dept of Health. The official change to allow trans people to choose their ward and for it still to count as ‘single sex’ on mixed sex accommodation data returns was published on 18 May 2009 - these documents show the path towards that decision. A change this big should have been a Ministerial decision, but an FOI found no evidence of a submission to Ministers.

Five of these documents seem to have bypassed the internal Dept of Health safeguards against publishing documents that didn’t align with broader policy, as they have no Gateway reference (Gateway was the final check before publication) - maybe because two of them were published on 31 December 2007, a day when very few people would be working and there would be no Ministers available to agree publication.

Edited to add - apologies, the link is fine in preview but won’t post properly. If anyone wants it, DM me. It’s the health policy page of the Press for Change website, from web archive December 2008.

And again, you say any of this to someone who hasn't been following the issue and you sound like an utter lunatic.

Thanks @GreenAllOver and @KnottyAuty for all your hard work on this. Incredible.

God, it's so depressing though.

On Stonewall, the close relationship with the Dept of Health dates back a long way. I found a 23 Aug 2005 Chief Executive letter (which from what I can tell is not quite guidance but is stronger than advice) to NHS Trust CEs, from Dept of Health jointly signed by Ben Summerskill, CE of Stonewall. It encouraged NHS organisations to become members of Stonewall’s Diversity Champions programme. The Dept of Health had been a member since 2003.

^^ Aided and abetted by those bekind virtue signallers who were of the hard of thinking type. Smug in their virtuousness.

I'm not sure that the people creating the policies (Isla Bumba and her ilk) do understand the issues. I think there is so much activist material swilling around and a general belief that "being kind" is a panacea to all the world's problems that these polices get signed off (by the people who SHOULD understand this issues - whether they do or not is a different matter) without proper scrutiny and analysis as they appear to adhere to a staff retention strategy of inclusivity.

We do need a separate lobby to raise these issues in a child safeguarding context IMO

It’s yet another strand to the social contagion that makes our children and young adults so vulnerable to harm (specially when also ASD).

Because at a surface level it looks OK and the premise of gender ideology (some people will suffer such distress that the kindest thing to do is enable them to attempt to medically change their bodies) is embedded, no one is questioning this kind of policy.

If the default treatment for gender-related distress was holistic therapy to help people reconcile with their bodies (and address comorbidities), policies like this would never see the light of day. It would be like affirming an anorexic in not wanting to eat while an inpatient at hospital

The “conversion therapy” bill is another thing to take action against. If that gets through in it’s current form it will be even harder to make a case against policies like this

I suppose they were using the Supposition of Tiny Numbers. Which seems to be a repeated trope.

I reckon many/most peple would, at the time, shrug and think the numbers would be so vanishingly small it wouldn't matter much.

That's another thing that comes up all the time.

The fact is that changing policy for these Supposed Tiny Numbers changes it for everyone. But that is conveniently ignored.

Indeed. A tiny number of cases requiring some one-off compromises is one thing [not that I agree with that, but..] whereas turning society upside down to appease the Tiny but noisy and sometimes violent Numbers is something else.

Proportionality got lost somewhere along the way.