Bell and anor v The Tavistock and Portman NHS Foundation Trust and ors (2021) EWCA Civ 1363

On 17 September 2021, the Appeal Judgment in what I will call the “Tavistock case” was delivered.

The Tavistock and Portman NHS Foundation Trust (“Tavistock”) operates a gender identity development service for patients up to the age of 18 suffering from gender dysphoria.

The court said:

“The present proceedings do not require the courts to determine whether the treatment for gender dysphoria is a wise or unwise course or whether it should be available through medical facilities in England and Wales. Such policy decisions are for the National Health Service, the medical profession and its regulators and Government and Parliament. The treatment of children for gender dysphoria is lawful in this jurisdiction.”

“The aim of the litigation was to require, as a matter of law, the involvement of the court before anyone under the age of 18 was prescribed puberty blockers thus denying the opportunity of consent to such treatment either individually or with the support of their parents or legal guardians.”

Tavistock does not prescribe puberty blockers.

Tavistock provides an assessment process and a referral process and “a referral takes place only if Tavistock assesses that the child would benefit from treatment and is capable of giving consent to puberty blockers”. “Referral requires the consent of the child and of the parents”.

There had been, before this appeal, a decision by the Divisional Court.  Those proceedings considered the competence of persons under 16 to consent to the administration of puberty blockers on the basis of the decision of the House of Lords in Gillick v. West Norfolk and Wisbech Health Authority [1986] AC 112 (“Gillick”).

The Divisional Court had made a declaration specifying precisely what informed consent would require.  It also gave extensive “guidance”.

At paragraph 9:

“The declaration affects only those under 16, although para [138] did cover those aged 16 and 17. The guidance went much wider. It covered children of all ages and recommended that the sanction of the court should be sought before prescribing puberty blockers albeit that there was no legal requirement to do so. The guidance, which does not have the effect of declaring the law, followed an extensive discussion in the judgment (starting at [139]) of some of the difficulties that a child would have in understanding the implications of loss of fertility and full sexual function if the further steps beyond puberty blockers were taken.”

Tavistock appealed against the declaration and submitted that the guidance given by the Divisional Court was wrong in law.

At paragraph 32, the Divisional Court decision was quoted:

“The court is not deciding on the benefits or disbenefits of treating children with [gender dysphoria] with [puberty blockers], whether in the long or short term. The court has been given a great deal of evidence about the nature of [gender dysphoria] and the treatments that may or may not be appropriate. That is not a matter for us.”

The appeal judgment said, “We agree”.

At paragraph 38:

“The claimants made no application for permission to rely upon the expert evidence they produced. Although some expert evidence was served with the claim the majority was served shortly before skeleton arguments were due to be lodged. None of it complied with the rules regarding expert evidence and a good deal of it is argumentative and adversarial. Tavistock sought to exclude the expert evidence on the grounds that it was inadmissible because it was not necessary to resolve the legal issue before the court; and also because it comprehensively failed to comply with the rules regarding expert evidence in any event. The issue was not resolved. Much of it was adduced to contradict the evidence given by Tavistock and the Trusts. Such evidence is rarely admitted but a particular difficulty here was that there was no way of resolving evidential disputes. The court supported the guidance it gave “in the light of the evidence as it has emerged”.

The Appeal Court said:

“It would have been preferable for the status of the claimants’ expert evidence to be resolved. It was controversial and would not, as we have said, ordinarily be preferred over that of a defendant in judicial review proceedings.”

At paragraph 55:

“In Gillick, the House of Lords made clear that it was for the clinician to decide whether a child under 16 could give informed consent to the prescription of contraceptives.”

Mr Hyam, Counsel for the original complainants, “accepts that the only real question before us is whether the Divisional Court, not having held that Tavistock’s (and the Trusts’) policies and practices were unlawful, was right to make the declaration and give the guidance it did”.

At paragraph 65:

“As will appear from what we say in the next section of this judgment, we have concluded that the declaration implied factual findings that the Divisional Court was not equipped to make.”

In discussion, the court said at paragraph 72:

“These answers emphasise the extent to which the declaration covered areas of disputed fact, expert evidence and medical opinion.”

At paragraph 76:

“The ratio decidendi of 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.”

At paragraph 22, Lord Phillips was critical of some of the 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”.

At paragraph 84:

“In respectful disagreement with the Divisional Court we conclude that the declaration should not have been granted.”

At paragraph 89:

“We conclude that it was inappropriate for the Divisional Court to give the guidance concerning when a court application will be appropriate and to reach general age-related conclusions about the likelihood or probability of different cohorts of children being capable of giving consent.”

The appeal was allowed and the declaration was set aside.  The guidance was held to be inappropriately provided.

This case reminded that the decision as to Gillick competence is a matter for parental consent where possible, and not a matter for the courts.