Blog post by Ollie Persey of the Garden Court Chambers Community Care Team.
AB v CD & Ors [2021] EWHC 741 (Fam)
Facts
The case concerned an application by AB, the mother of XY, for a declaration that she and XY’s father, CD, could consent to their child receiving 'puberty blockers’. XY was a 15-year-old transgender girl. Puberty blockers are a form of hormone treatment that delay irreversible biological changes.
AB follows Bell v The Tavistock and Portman NHS Foundation Trust & Ors [2020] EWHC 3274 (Admin) (‘Bell’), where the Divisional Court held that it was unlikely that a child under the age of 16 could be Gillick competent to consent to treatment with puberty blockers. The decision in Bell is under appeal. Crucially, the question of whether parents could consent to their child undergoing the treatment was not considered in Bell.
As such, the key issue in AB was whether XY’s parents could consent to the treatment or whether the decision as to whether XY should be prescribed puberty blockers should come before the Court, either as a matter of legal requirement or as a matter of good practice.
Judgment
Lieven J (who was also a Judge of the Divisional Court in Bell) held that a parent’s right to consent to treatment on behalf of the child would continue even when the child was Gillick competent to make the decision, except where the parents disagreed with the child.
Lieven J noted that the ‘very essence of Gillick’ was that a parent’s right to consent to treatment could not trump the decision of the child. Therefore, in Gillick the doctors could lawfully advise and treat the child without her mother’s knowledge or consent. Lieven J also noted that a parent remained responsible when a child was Gillick competent. For example, they could consent to medical treatment for a Gillick competent child where they either could not or had not consented due to unconsciousness or had found decision-making overwhelming.
Following Bell, it was unclear whether XY was Gillick competent. However, XY and parents agreed that treatment with puberty blockers was in her best interests. As such, Lieven J considered there to be two options: if XY was Gillick competent, she had not objected to her parents consenting on her behalf. Alternatively, if XY was not Gillick competent, her parents could also consent on her behalf. In reaching this conclusion, Lieven J reiterated that the parents’ ‘right’ to consent must be for the purpose of ensuring the child’s best interests.
The remaining question was whether consent to treatment by puberty blockers was a ‘special category’ of case that required the decision to come before the Court. In short, Lieven J held that the concerns about puberty blockers identified in Bell did not justify removing the parental right to consent. She noted that whether it was a legal requirement or good practice was a distinction without a difference, given the potential disciplinary consequences for doctors that ignore good practice.
Lieven J observed that ‘additional safeguards’, such as a second independent medical opinion, might need to be added into the decision-making process for prescribing puberty blockers. She also outlined circumstances where it would be appropriate for the decision to go before the Court, for example, if parents had been pressured into giving consent by a child.
Comment
Following Bell, the Gender Identity Development Service (‘GIDS’) for children and young people at Tavistock and Portman NHS Foundation Trust took the decision to pause new referrals into the GIDS endocrinology service while it carried out clinical reviews of existing patients. The only exception to this was where the Court ordered the treatment.
In response to AB, The Good Law Project (which supported the claim) wrote to NHS England and called for referrals to recommence on the basis that parents could consent to the treatment in certain circumstances without an order from the Court. However, NHS England has now launched an independent review group into puberty blockers and stated that: ‘[u]ntil the new review group becomes operational, the absolute requirement to seek a best interests order from the court before treatment is commenced will remain in place.’ Anyone with an interest in this area will be closely following the appeal in Bell (due to be heard in June 2021) and the outcome of this review.
AB is also of general interest to mental capacity practitioners as Lieven J’s (obiter) observations on the scope of Gillick competency are a helpful elucidation of the principles. Of note was her firm view (at paragraph 60) that a parent’s consent cannot trump a Gillick competent child’s:
“[t]o the degree that Lord Donaldson was seeking to find that a parent retains the right to consent to treatment which a Gillick competent child has refused, in my view that analysis does not fit with what the House of Lords, and in particular Lord Scarman, said in Gillick. It would now also be very difficult to accept in the light of article 8 of the ECHR.”
