Finally, some legal sense.
The Tavistock and Portman NHS Foundation Trust operates the only gender identity service for children in England and Wales. Part of the service involves making referrals, where clinically necessary, for endocrine treatments, specifically puberty blocking drugs and/or cross sex hormones. Referrals are made only when the child has reached at least Tanner Stage 2 in puberty and where there is the consent of both the parent and the child. Even though parents can provide legal consent on behalf of their children [1], by requiring the consent of that child the Tavistock has historically foregrounded the rights of the child, which is to be commended. This approach is also in line with the long-established World Professional Association for Transgender Health (‘WPATH’) Standards of Care [2].
In Bell v Tavistock [3] the claimants, Keira Bell and Mrs A, brought a claim in the High Court for judicial review seeking a declaration that children under the age of 18 are not legally competent to consent to puberty blockers. Despite widespread coverage giving the impression that the claimants were successful in their claim at the High Court of illegality in the Tavistock’s policy or practice, their claim was not in fact successful. However, the High Court did provide both a declaration and guidance, the practical impact of which was that children under the age of 16 should be viewed as unable to provide legal consent to puberty blockers. The legally binding declaration listed eight factors that clinicians must take into account when deciding if a child could consent to puberty blockers (para. 9). Alongside it, the non-legally binding guidance, which covered children of all ages, recommended that a court order should be sought before prescribing puberty blockers (para. 9).
Even though the High Court judgment was stayed, this had an immediate and practical effect. No child has been referred by the Tavistock to endocrine services for puberty blockers since it was issued. We wrote here about both the harm being caused to transgender children by the ruling and the legal problems with it.
The case was recently appealed and we at Trans Legal Project watched the hearings at the Court of Appeal. We were very impressed with the meticulous and forensic way that the judges dissected the High Court decision. They demonstrated a detailed understanding of the legal problems with the earlier decision. Following the hearings, we were optimistic that the ruling would be overturned.
The judgment of the Court of Appeal was released on Friday [4]. The High Court decision (both the declaration and guidance) was overturned in a damning, unanimous, legal opinion from a panel of judges that included the two most senior Court of Appeal judges, Lord Burnett CJ and Sir Geoffrey Vos MR. The court found so many serious errors of law that it did not even find it necessary to see if the original judgment was consistent with the Human Rights Act 1998 (para. 90).
Evidence
The claimants in the original High Court case sought to introduce expert evidence to counter that given by Tavistock and NHS Trusts. Their evidence came from a group from across the world, unrepresentative of wider expert opinion, who disagree with the WPATH position. Most of their evidence was introduced at the last minute (para. 38). Further, the claimants had made no application for permission to rely on the expert evidence that they produced and “[n]one of it complied with the rules regarding expert evidence and a good deal of it [was] argumentative and adversarial” (para. 38). The Tavistock rightly sought to exclude this evidence, but the High Court did not resolve its status as it should have done (para. 38).
Extraordinarily, there was an even more fundamental issue than the fact the claimant’s expert evidence was inadmissible. The Court of Appeal notes that in judicial review proceedings (i.e. the original High Court case), a court will normally accept the evidence of the public authority (para. 22) and will not decide contested issues of fact or expert evidence (para. 62). In law there are exceptions to this principle, but they were determined to not apply to this case (para. 62).
None of this was disputed by the claimants in the Court of Appeal who, bizarrely, then had no choice except to argue that the findings of fact by the High Court had come from the Tavistock’s own evidence (para. 62). But the Court of Appeal noted the High Court had referred to evidence given by the claimant’s experts including Professors Hruz, Levine and Scott (para. 37), indicating use of those opinions in the ruling.
The Court of Appeal highlighted two findings that the High Court had implied from this evidence:
i) that puberty blockers are an “experimental” treatment for gender dysphoria; and
ii) that starting on puberty blockers leads virtually inexorably to cross sex hormones (para 63).
As anyone who watched the proceedings will know, these findings were the polar opposite to the evidence given by the Tavistock and the NHS Trusts. This is hardly surprising given that they disagree with both positions. Not surprisingly the Court of Appeal concluded that “the declaration implied factual findings that the [High] Court was not equipped to make.” (para. 65)
Jurisdiction to make the declaration
The Court of Appeal found that there have been no previous cases where a legal claim has failed but in which a court has gone on to issue a declaration (para. 69). Further, although there is a statutory power to make an advisory declaration or opinion, no such opinion was sought by the claimants (para. 69).
This is a key legal point. Had the claimants asked for an advisory opinion on determining the capacity of children to consent, then the defendants would have offered expert evidence on this point and relevant medical bodies would have had the chance to intervene.
Also, the Court of Appeal found that the declaration went beyond a legal opinion and “covered areas of disputed fact, expert evidence and medical opinion” (para. 72) and “it states facts as law” (para. 80).
The Court of Appeal also quoted its approval of Lord Phillips MR in R(Burke) v General Medical Council [5] who “was critical of some declarations which “did not purport to resolve any issues between the parties, but appeared to be intended to lay down propositions of law binding on the world.”” (para. 78) and stated the “declaration which the [High] Court made does not sit happily with the observations of Lord Phillips” (para. 79).
Gillick
Gillick [6] competence is the legal principle that children under the age of 16 are able to consent to medical treatment when they have sufficient understanding. Whether or not a child has sufficient understanding must be determined by a clinician, on a case-by-case basis.
The Court of Appeal found that the High Court declaration was inconsistent with Gillick competence, noting that “[i]t would have been inconsistent with the ratio of the case that clinicians must be trusted to make the decisions for the court effectively to give them a manual about how to do so” (para. 80). It also found that the High Court’s guidance was inconsistent with Lord Scarman’s dictum that a child’s capacity to consent was “not to be determined by any judicially fixed age limit” (para. 88).
The Court of Appeal also took the opportunity to state that the ratio in Gillick “was that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment. Nothing about the nature or implications of the treatment with puberty blockers allows for a real distinction to be made between the consideration of contraception in Gillick and of puberty blockers in this case bearing in mind that, when Gillick was decided 35 years ago, the issues it raised in respect of contraception for the under 16s were highly controversial in a way that is now hard to imagine.” (para. 76)
Final thoughts
Following the original ruling, trans children have unnecessarily had treatments to which they and their parents consented, and which were recommended by clinicians, indefinitely withheld. This has likely led to them experiencing the irreversible and distressing effects of their natal puberty. It is hoped that after this ruling, the Tavistock will start to refer children to endocrine services immediately once more, so that they can access appropriate treatment.
There are concerns shared by many that the case was also a Trojan Horse to attack the rights of girls seeking reproductive health care. If Gillick competence is overturned, then parents would be able to prevent their children from seeking abortions or contraception. Some of these concerns centre on the construction of the legal arguments and the involvement of the solicitor, Paul Conrathe. The rule of law demands that a solicitor is free to take any case within his expertise and that clients should have access to legal representation, however unpopular their case might be. Further, it is important not to conflate the personal views of a lawyer with those of their clients. Nonetheless, Conrathe states that Jesus Christ is the most important person in his life and he has stated Jesus’s “life is the inspiration for the work I do” [7]. This work has included representing a series of pro-life clients who have sought restrictions on abortion in court cases, including in particular Axon [8], which also sought to overturn Gillick competence. The clear restatement of Gillick competency in this current case offers much needed reassurance to anyone concerned about reproductive rights.
Sadly, it seems that the High Court was ensnared in the current media driven hysteria around trans people. The court unfortunately made numerous errors of law, which in our view prompted it to produce a judgment that would be welcomed by transphobic British newspapers. We are delighted that the Court of Appeal has now upheld the rule of law by documenting the manifest legal errors of the High Court and overturning the judgment. The Court of Appeal noted aptly that the “… role of the courts is to decide discrete legal issues” (para. 3).
There are clearly problems at the Tavistock, but the best way to identify and address them is through the Cass Review, rather than via a court case brought by partisan claimants seeking to further their cause. We do remain concerned however that a damning report on the Tavistock by Cass may prompt an increasingly trans-hostile government not to introduce desperately needed service improvements but to try to close the Tavistock entirely.
Trans Legal Project
**********************
[1] AB v CD and the Tavistock [2021] EWHC 741 (Fam)
[2] [2020] EWHC 3274 (Admin)
[3] WPATH is recognised as the leading international body for professionals involved in the treatment of transgender individuals and has published consensus driven internationally accepted guidelines since 1980. The current standards of care are available from https://www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English2012.pdf?_t=1613669341 [Last accessed 20 Sep 2021]
[4] Bell v Tavistock [2021] EWCA Civ 1363
[5] [2005] EWCA Civ 1003
[6] Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7
[7] L Tsang 02.03.04: Paul Conrathe The Times, 2 Mar 2004. Available from https://www.thetimes.co.uk/article/020304-paul-conrathe-wf32fsz58jn
[8] R (Axon) v Secretary of State for Health [2