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

It shouldn't surprise me any more but the influence from these lobbying groups and the lack of any sort of overview from Government is shocking, as well as the seeming simplicity of simply bypassing safeguarding measures.

Massive thanks to Knotty, Green and everyone else for their work on this.

Well thats a successful law suit waiting to happen.
Legally it's cannot override the choices of parents when a child is not gillikic competent without a crt order.
A dr who is found to have interfered with parental responsibilities without a crt order or in the case of immediate lifesaving emergency care is liable to lose their licence and face criminal charges aswell as civil claims.

I'm not sure Drs ever take the consequences for things like this though, can't they just point to 'following the guidance'.

And no one is ever wholly responsible for the guidance, so there's never any individual comeback for things like this at all.

Isn't Gillick competence a bit of a red herring?

If a TIF child (or non-competent adult) is accommodated with males, then they are the ones at risk, and their parents (or attorneys or guardians) at least have the option of threatening legal action if they are harmed, which should in principle lead to appropriate safeguarding action.

If a TIM child or adult is accommodated with females, the likely harm is to the latter, but they (and their parents, attorneys, and guardians) have no input into the decision, and may not even know that it's happening.

In other words, the parents of TI children are not the right people to rely on when it comes to the safety of other people's children.

It goes without saying that it's ridiculous to have a policy that acknowledges that segregation is sometimes necessary, but then operates as if the things that make it necessary are ephemera like names and clothing.

The activist view, from what I’ve read, is that the ‘trans child’ should have their wishes granted, even if their parents disagree. That completely bypasses the Gillick test, and makes it irrelevant. It’s another example of all the usual safeguards being removed for these children.

I think the issue with Gillick competence in this regard is the following:

In medical scenarios involving treatment, an underage child may agree to have/not have treatment (possibly against their parents’ wishes) if and only if they are deemed, via thorough testing, to be Gillick competent - that is, if they are assessed as being mature enough to understand the consequences of their choice.

In the case of gender confused children, NHS staff are being told that minor children’s choices must always be taken into account with regard to their accommodation, even if they go against parents’ wishes, and (this is the critical part) even if the child is NOT Gillick competent. So NHS staff are being instructed to ignore not just parents, but also all safeguards around child competency.

I get why this is the activists view. I think it's essentially evil, but I understand where it's coming from.

What I don't understand is how this gets waived through by medical professionals with child safeguarding training ...

One important issue is that the Islas of this world grew up with this and to them it's normal. There's a generation now that were at school or university at the height of the SW infiltration of everything, and are true believers because they were bombarded with propaganda by their university, TV shows, and social media. 10 years later they're employed and often in positions of influence themselves.
Social media is incredibly influential and the heavy promotion of "trans rights" is very visible on Instagram, Tiktok and YouTube.
I'm sure it's no coincidence that those same SM platforms are are also full of reels about how parents are wrong about everything, families are toxic, dysfunctional, parents are narcissists. Children and young people are being influenced to turn against their parents to an extent I've never seen before; at the very least they're being taught that we know nothing because everything we learned is our of date.

I am astounded by the policies, issued without any evidence to back up the claims. They don't cite any sources.

In the case of gender confused/questioning children, safeguarding appears to have taken very much a back seat

No they cant the individual drs are on the hook for it because they are the ones breaking the laws and interfering with the parental responsibilities without a crt order in the same way that they are the ones who will be done with assault if they treat them without/against parents wishes

I honestly think that's the whole purpose of these policies, to remove safeguarding.

It needs to be a child centered approach. Sometimes that means respecting the wishes of a child even if they're not Gillick competent IMO. It depends on the urgency of the decision and the consequences of it.

My primary school child has medical conditions which require quite a lot of intervention. Some things that are potentially life and death are non-negotiable, but it would be emotionally harmful to her to hold her down and force tests which are useful but not essential. It will also make cooperation a lot more difficult next time, so proceeding in a way she is comfortable is really important, even if that means giving up and coming back on another occasion.

They should absolutely not be giving medications, surgeries etc without parental consent these kids with issues with their sex. But (thank goodness) they aren't doing that anymore anyway, certainly not in the age range we are talking about here. I agree that pronouns etc aren't harmless, and that 'affirmation' is often unhelpful, but there are surely situations where it's the lesser of two evils when dealing with a potentially very unstable child. Basically, I think we need to leave some of this up to clinical judgement depending on the child in front of them.

Nope there's a huge difference between allowing a child to refuse unnecessary tests and affirming a child against parental wishes when the child is not gillikic competen especially when that child is in a psychiatric hospital as an in patient, and it involves other children.
If anything a psychiatric hospital should never affirming gender ideology as it goes against everything we know about child psychiatry and the principal of watchful waiting

That timeline is so helpful!
https://seeninhealth.org/map-timeline/

Eliminating Mixed Sex Accommodation, May 2009
Annex E

"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."

https://webarchive.nationalarchives.gov.uk/ukgwa/20130104221201/http:/www.dh.gov.uk/prodconsumdh/groups/dhdigitalassets/documents/digitalasset/dh098893.pdf

The NHS was mixing up Protected Characteristics right from the start:

Equality impact assessment
Title of policy: NHS Operating Framework for 2010/11

Gender (including transgendered people)
The NHS Operating Framework for 10/11 is unlikely to have a significant negative impact on equality in relation to gender (including transgendered people), in terms of barriers to a community group, exclusion or negative impact in terms of community relations.

The reasons for this are that the NHS Operating Framework pulls together existing policies that have already undergone equality impact assessment or in the case of forthcoming policy areas, that will be assessed. It may be that some of these policies are more relevant in terms of gender equality and where this is the case the issues will be identified and addressed so that the policies do not disproportionately impact on people in terms of their gender. It contains nothing additional to this.

8. Promote and protect human rights
The NHS Constitution makes clear the expectation of the NHS to provide a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief.

This redirect page links to the document:

http://www.dh.gov.uk/prodconsumdh/groups/dhdigitalassets/@dh/@en/@ps/@sta/@perf/documents/digitalasset/dh110442.pdf

2021 paper by Women's Declaration International (was Women's Human Rights Campaign) includes a brief history of the fight to restore Single-Sex Accommodation in the NHS - which was immediately undermined by Annex E (later Annex B).

WHRC Research Paper April 2021
“Availability and Clarity of Information on Patient Single-Sex Accommodation provided by the NHS"
Laila Namdarkhan and Anna Cleaves

Research
The present research aims to explore the current status of single sex accommodation (SSA) for inpatients in general hospital wards, with brief reference to mental health services and maternity provision, by assessing the visibility and accessibility of SSA policies to the general public, and the ways in which the 2019 review of NHS had affected the content of patient information, with specific reference to Annex B.

A random exploration of 52 NHS England trust websites, including 150 hospitals was undertaken covering each of the regions in order to answer the following:

• Are inpatients informed of their right to same sex accomodation and same sex health practictioner?

• Where is information about SSA found?

• Are the protected characteristics of sex and gender reassignment used used correctly in information to patients?

Background (From single-sex to mixed-sex-to single-sex to ‘gender identity’)

It took from early 1990 to 2009/10 to introduce the mandatory abolition of mixed sex accommodation in the NHS and the introduction of a national reporting system for breaches of SSA and their justification.

At its inception the NHS (1946) segregated accommodation and bathing/toilet facilities by sex in all inpatient services. Within mental health asylums patients of the opposite sex mixed for social/ recreational purposes always under supervision by designated staff.

In the 1960s psychiatry moved to implement mixed sex accommodation (MSA) and units, under the guise of what was termed the ‘greater enlightenment of psychiatry’2 . It was argued that patients (males) benefitted from sharing living arrangements (not sleeping accommodation) with women. Learning disabled facilities were based on a mixed-sex model that was intended to create a pseudo family set-up.

PDF download report:
womensdeclaration.com/documents/170/NHSSSAResearch_WHRC.pdf

Edit: Apologies some of that was right off-topic! I still had the SEEN thread in my head!

I want to say something about your little daughter and the difficult medical conditions that she and you are dealing with, it doesn't feel right to jump over it to comment on the rest of your post - is [support] appropriate? I hope so

Not that I have anything very contradictory to say about the rest of your post -
I just think the more reinforcement of biological reality a child gets, the better.

A minor child who is so unstable that even at that young age they will react badly to being treated according to their sex serious needs a lot of love and support, before they develop even more negativity towards their own body.

Thank you for the 🌺.
I broadly agree, and I'm totally gender critical (and not one of those ones that say they are and then say we should all be kind 🙄).

I just think that 'complicated' children require a very tailored approach, and what is helpful for one might not be for others. Clinicians need have have ability to have flexibility in their approach, with appropriate discussions with parents.

If a gender questioning kid with cancer tries to run away from chemo sessions not because he's scared of the chemo, but because the nurses aren't using his preferred name, then that doesn't seem to be on the child's best interest, for example.

The rights and dignity of other kids must never be compromised though, so there are obviously red lines like single sex accomodation (where that's provided for kids). But it could be that a decision is taken to send the child to an adjacent hospital for treatment, where the accomodation for kids is mixed sex, for example.

In terms of psychology support, we need to be firmer about approach (ie as to the dangers of an affirmative approach) given how captured many trusts are, but still with enough flexibility to ensure the best interests of any specific child is paramount.

Either it's accidentally undermining/destroying safeguarding and women's rights, or its on purpose.

I know this example has been discussed before but I was thinking about this the other day. Is there ever a situation where clinicians agree with anorexic children that they're fat? If not, why not, given this seems to be the approach with gender dysphoria in some situations and why can't the approach there be adopted for gender questioning children? It seems it might be helpful to adopt an approach where clinical best practice hasn't been influenced by activists with their own agenda.

It's difficult to see how it could be accidental, to be honest. That literally no-one stops and thinks 'hang on what about this situation, what about the safeguarding rules we're supposed to follow... this doesn't add up'. Not once, ever. Of course the bullying people receive when they try and challenge probably silences those who do have these questions about safeguarding.

But then if people are being bullied out of following safeguarding rules we come back to deliberate.

Looking at the history, it was all brought in as part of the package of new equality and human rights legislation in the early 2000s.

The impression was given that children had to be listened to, and their wishes respected, because of their human rights. And because it was true that the law had changed, it was easy for people to believe it had changed even more than it actually had. The activist language about ‘getting ahead of the law’ is even in some of the official guidance.

Do you mean the rights of the child bill in Scotland?
If so that bill was struck down under a section 33 order as outwith their Scottish government legislative power

An important post.
One would have hoped that society had learnt from the last lot that argued for this approach. The Paedophile Information Exchange (along with commentators like Peter Tatchell) focused on the rights of children to consent to sex with adults. They nearly got away with it back in the 70s / 80s with politicians like Harriet Harman signing up to their cause.

Then the need to safeguard children from predatory adults was becoming a major concern with other scandals contributing to the Children Act in 1989 & subsequent safeguarding legislation.

Why we have allowed the groups described in the OP to start dismantling safeguarding and to promote "the child's right to consent, no matter what" should be a matter for media investigation and subsequent enquiries, with disciplinary action against those who enabled them.

They're children, not mini adults and they have the right to be protected from exploitation. We've seen how human rights can be twisted like this before. Unforgivable it's happened again.

Thanks for that research link from WDI I’ll go in search of that!

I mean the Equality Act 2006, GRA 2004, and various versions of the Sex Discrimination regulations. If you have a look at this publication (Press for Change via the Dept of Health Equality and Human Rights Group) it lists all the legislation, gives an interpretation of what it means for trans people, and on p.35 it explicitly says that NHS organisations should ‘go further’. My bold added.

”As stressed throughout this guide, the strict letter of the law in relation to equality and human rights is intended to be the baseline for policies and conduct within NHS organisations. The fact that the law does not strictly require a particular action to promote equality, dignity and respect for staff and service users does not preclude managers from aiming high and seeking to level up the way in which everyone is treated and regarded. Similarly, the existence of limited exceptions should never be seen as an invitation to seek to exploit them unless all other possible avenues for inclusion have been tried and exhausted.”

These principles apply particularly in the case of trans people, where the definitions employed in framing the law can mean that, between two superficially similar or identical people, one person can be legally protected and the other may not. To split hairs over equality in these circumstances is to miss the point about the social aim to be achieved.

NHS organisations should aim to set an exemplary example, both as an employer and as a provider and procurer of services, by acting (and encouraging others to act) in accordance with the principle that the NHS is
a service provided for all members of society, without prejudice.”

If you’re interested, you can download the whole document from the Government archive.

Edited to add Government archive link - <a class="break-all" href="https://webarchive.nationalarchives.gov.uk/ukgwa/20090217051354/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_089941" rel="nofollow" target="_blank">https://webarchive.nationalarchives.gov.uk/ukgwa/20090217051354/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_089941

Just to add, the document has a specific section on children and young people (p.14-15) but doesn’t mention Gillick competency at all. There are lots of links to other documents in the footnotes, which would allow you to track when the ‘do what the child asks even if they’re not Gillick competent and their parents disagree’ point started being officially made. I’ve gone through most of the publications mentioned, but I wasn’t specifically looking for that point.