Can children give informed consent to puberty blockers?

Yesterday 1 December 2020 the Divisional Court, unusually consisting of three judges, handed down their judgment in the Bell case, on the use of puberty blockers for children and young persons with gender dysphoria.  The legal question was not to determine the rights or wrongs of the treatment but rather to try and answer the fundamental question as to whether children and young persons can give informed consent in the legal sense to that treatment.  Whilst puberty blockers are considered to be largely reversible, the evidence before the court demonstrated that the vast majority go on to take cross-sex hormones in due course.

After a detailed consideration of a considerable amount of evidence, the court concluded that to achieve what is commonly known as Gillick competence, the child would have to understand not simply the implications of taking PBs but those of progressing to cross-sex hormones. The Court stated that:

“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.” [138]

On the question of consent therefore, the Court held:

• It was highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers.
• It was doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers [151].
• With children of 16 or over, there was a presumption of an ability to consent but “given the long- term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment” [152].

The immediate practical impact is surely going to be that a lot of this treatment to children will stop.  The evidence before the court set out examples of individuals with a widely varying experience: from the obvious relief that this clinical pathway provided some children, to the tragic consequences in relation to the young person at the centre of this case.  Repeatedly the Court appeared concerned about the lack of readily available data and analysis on the monitoring of the significant numbers of young people who have gone down this route.

For lawyers involved in grappling with consent and capacity issues, this is essential reading for an exposition of the law in this area.

The Bell v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) judgment may be accessed here.

Samantha Broadfoot QC

Landmark Chambers

2 December 2020