AB v CD & Ors [2021] EWHC 741 (Fam)

In the last issue of QMLR this author considered the High Court’s decision in Bell v Tavistock, which concerned whether children were capable of consenting to puberty blockers (“PBs”) as treatment for gender dysphoria. A three-judge panel in the Divisional Court (which included Lieven J) concluded at [145] that:

“… it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with PBs. In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent. However, plainly the increased maturity of the child means that there is more possibility of achieving competence at the older age.

The Divisional Court did not consider the question of parental consent to PBs as the Tavistock had made clear in Bell that they had a policy that a parent could not consent to PBs on behalf a child who was not Gillick-competent [47]. The appeal in Bell was heard by the Court of Appeal on 23-24 June 2021.

The issue in the present case

The present case, which also came before Lieven J, concerned an application by the parents of XY (AB and CD) for a declaration that they had the ability in law to consent on behalf of XY to the administration of PBs.

The Second and Third Respondents’ position (Tavistock and Portman NHS Foundation Trust and University College London Hospital NHS Trust, respectively) was that, for patients who are already receiving PBs, given that a stay has been granted in respect of [138][1] of Bell and the extreme distress which these patients would suffer if treatment were discontinued, treatment for existing patients should continue on the basis of parental consent alone, as long as the patient continues to want the treatment. Thus, unlike Bell, the court now had to consider parental consent.

The issues were set out at [34] as follows:

“a. Do the parents retain the legal ability to consent to the treatment?

b. Does the administration of PBs fall into a “special category” of medical treatment by which either:

i. An application must be made to the Court before they can be prescribed?

ii. As a matter of good practice an application should be made to the Court?”

Do the parents retain the legal ability to consent to the treatment?

The issue was whether, even if XY was Gillick competent, her parents retained a “concurrent right to consent” to treatment on her behalf. The question of whether XY was Gillick competent had not been reviewed following Bell, and so the judge considered both scenarios: either (i) that XY was not Gillick competent, or (ii) that she was Gillick competent, but it remained relevant whether her parents could also give operative consent to the treatment [51].

Lieven J began by setting out the principle that parents are central to treatment decisions concerning their children and that, in general, judges ought to respect parents’ wishes. She then went on to consider in detail the judgments of Lord Donaldson and Lord Scarman in Gillick itself and subsequent authorities. She concluded at [67] to [69] that:

“Although there is some difference in nuance between the speeches in Gillick, it is accepted that Lord Scarman reflects the view of the Committee. The very essence of Gillick is, in my view, that a parent’s right to consent or “determine” treatment cannot trump or overbear the decision of the child. Therefore, the doctors could lawfully advise and treat the child without her mother’s knowledge or consent. In Gillick, the parent did not have the right to know that the treatment was being given, so it makes little sense to assume that the parent could act to stop the child’s decision being operative on whether the treatment takes place or not…

However, in the present case, the parent and the child are in agreement. Therefore, the issue here is whether the parents’ ability to consent disappears once the child achieves Gillick competence in respect of the specific decision even where both the parents and child agree. In my view it does not. The parents retain parental responsibility in law and the rights and duties that go with that. One of those duties is to make a decision as to consent in medical treatment cases where the child cannot do so. The parent cannot use that right to “trump” the child’s decision, so much follows from Gillick, but if the child fails to make a decision then the parent’s ability to do so continues. At the heart of the issue is that the parents’ “right” to consent is always for the purpose of ensuring the child’s best interests. If the child does not, for whatever reason, make the relevant decision then the parents continue to have the responsibility (and thus the right) to give valid consent.

This might arise if the child is unable to make the decision, for example is unconscious. However, it could also arise if the child declines to make the decision, perhaps because although Gillick competent she finds the whole situation too overwhelming and would rather her parents make the decision on her behalf. In the present case, in the light of the decision in Bell, and the particular issues around Gillick competence explained in that judgment, it has not been possible to ascertain whether the child is competent. In this case, there are two options. If the child is Gillick competent, she has not objected to her parent giving consent on her behalf. As such, a doctor can rely on the consent given by her parents. Alternatively, the child is not Gillick competent. In that case, her parents can consent on her behalf. It is not necessary for me or a doctor to investigate which route applies to give the parents authority to give consent. Therefore, in my view, whether or not XY is Gillick competent to make the decision about PBs, her parents retain the parental right to consent to that treatment.”

Issue Two – Is there a special category of medical treatment requiring court authorisation, and do puberty blockers fall within it ?

Lieven J explained that the first sub-issue was whether there was a special category of medical treatment requiring authorisation, and the second sub-issue was whether PBs fell within that category [71].

She made two interesting preliminary remarks. First, at [72] she commented that:

“Firstly, the judgments concerning medical treatment decisions that should be brought to court are sometimes less than clear as to whether they are referring to a legal requirement or merely to good practice. However, it is in most cases probably a distinction without much difference. If it is good practice to apply to the Court, then if a clinician does not do so s/he is at risk of considerable criticism and possibly disciplinary action by the professional body. Therefore, a principle of good practice may have a very similar effect to a legal requirement.”

Secondly, she noted that all of the parties were arguing the same position – that even if there were a limited category of medical treatment requiring authorisation, PBs do not fall within this category. She considered that, given Bell, there was a strong counter-argument, however no party sought to argue that position.

At [74] Lieven J noted that: “the argument that there is a special category of medical treatment, which only the court can authorise, rests on a series of decisions concerning sterilisation of girls and women, some of which involve under 16 year olds.”

Lieven J went on to consider the previous authorities concerning sterilisation procedures, before going to consider the authorities relating to withdrawal of clinically assisted nutrition and hydration and Hayden J’s guidance from January 2020 concerning when applications relating to medical treatment should be made to the Court. She also considered two Australian cases concerning the administration of puberty blockers to children and the relevant regulatory framework, including the Cass Review, an independent NHS England review into this area of services and treatment.

At [111] Lieven J also noted the argument put forward that placing PBs into a special category of treatment that would require court authorisation would amount to direct discrimination under the Equality Act 2010 and/or would breach Article 8. Although it was not necessary for her to deal with the point in the present case, she commented at [112] that: “this argument raises complex issues of discrimination law both under the Equality Act 2010 and the Human Rights Act 1998. It also appears to me that a very similar argument might be raised in the Bell appeal.”

Ultimately, Lieven J concluded that her analysis of the authorities demonstrated that there are very few cases which support a special category of treatment of children requiring court approval. She noted at [116] that:

“There are a range of cases where there does have to be Court approval, but this is where there is a clinical disagreement; possible alternative treatment of the medical condition in issue; or the decision is, in the opinion of clinicians, finely balanced. These are fact specific instances rather than examples of any special category of treatment where the Court’s role is required simply because of the nature of the treatment.

She observed that the position is different in relation to incapacitated adults, who do not have parents and therefore the court has to fulfil that protective role.

She observed that it could be argued that, for the reasons set out in Bell, PBs are sufficiently different from other forms of treatment and therefore should be treated differently. Although, as per Bell, children were very unlikely to be able to understand the implications of PBs, she commented at [120] that: “parents are, in general, in a position to understand and weigh up these matters and consider what is in the long and short term best interests of their child.” Overall, therefore, PBs did not fall into any special category of medical treatment for which applications to the court were always required before they could be administered.

Lieven J pointed to two particular concerns which she had regarding PBs. First, she commented at [123] that: “The taking of strong, and perhaps fixed, positions as to the appropriateness of the use of PBs may make it difficult for a parent to be given a truly independent second opinion. However, in my view this is a matter for the various regulatory bodies, NHS England and the Care Quality Commission, to address when imposing standards and good practice on the Second and Third Respondents.”

Second, she noted a concern that parents might feel under ‘reverse pressure’ from their children to consent to PBs. However she noted that there was no evidence before her that this was an issue in XY’s case.

She finally noted that if the clinicians were concerned that pressure was being placed on parents, if the case was finely balanced, or if there was disagreement between the clinicians then the case should be brought before the court.

[1] Which states: “It follows that to achieve Gillick competence the child or young person would have to understand not simply the implications of taking PBs but those of progressing to cross-sex hormones. The relevant information therefore that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to PBs, would be as follows: (i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking PBs go on to CSH and therefore that s/he is on a pathway to much greater medical interventions; (iii) the relationship between taking CSH and subsequent surgery, with the implications of such surgery; (iv) the fact that CSH may well lead to a loss of fertility; (v) the impact of CSH on sexual function; (vi) the impact that taking this step on this treatment pathway may have on future and life-long relationships; (vii) the unknown physical consequences of taking PBs; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain.”