‘Let the Doctors Decide’ – UK Human Rights Blog
September 27, 2021
In Bell and A v Tavistock and Portman NHS Trust and others  EWCA Civ 1363 the Court of Appeal advised judges to avoid formulating policies in an area of social and moral complexity.
Since the Divisional Court restricted the medical treatment of children with gender dysphoria late last year (see R (at the request of Bell and A) c Tavistock and Portman NHS Trust and others), discussed on this blog here), the decision sparked a heated debate. Some have deplored the distress of young patients deprived of treatment. Others applauded the limits which they said would prevent irreparable damage. On September 17, 2021, the Court of Appeal overturned the decision, but litigation will continue to rage both inside and outside the courts.
The first claimant, Keira Bell, is a former Tavistock patient who was prescribed puberty inhibitors at 16 to delay the onset of female sex characteristics. She switched to a man using cross-sex hormones, had a double mastectomy, then changed her mind, regretting the “headstrong decision” which she said would negatively affect the rest of her life. His case – accepted by the Divisional Court – was that the “innovative” and “experimental” nature of the treatment, particularly the use of puberty blockers, made it unlikely that a child could validly consent to it.
The current consent law, set out in the leading case Gillick v. West Norfolk and Wisbech Health Authority , considers that a child can validly consent to a treatment if he has sufficient maturity and intelligence to fully understand what is proposed (called “Gillick skill”).
The Divisional Court of Bell did not find the prescribing of puberty blockers unlawful in the absence of a court order and rejected the claimants’ argument that the treatment information provided to potential beneficiaries was misleading or inadequate. However, she was not convinced of the children’s ability to understand and assess the information and thereby give valid and informed consent.
Relevant information, the Divisional Court said, would include “the fact that the vast majority of patients taking puberty-blocking drugs switch to cross-sex hormones,” that these can lead to loss of fertility and function. sexual, and that the evidence base because this treatment is “still very uncertain”. There was no age-appropriate way to explain this, the court said. As a result, it was “highly unlikely” that a child under 13 would be able to give consent and it is highly doubtful that a 14 or 15-year-old could. Young people between the ages of 16 and 18 are presumed fit, but if there is any doubt that treatment is in their best interests, court authorization would be desirable. In practice, the Court of Appeal noted, this statement as interpreted by clinicians as a requirement to obtain court leave to treat.
The Court of Appeal allowed the appeal and dismissed the application for judicial review, declaring that the lower court was not permitted to issue a declaration and directions in circumstances where it did not find illegality. Advisory statements were known but not, he said, when an allegation of illegality had failed. The lower court had also placed an “inappropriate restriction” on Gillick’s proficiency test by departing from the principle that children under 16 could make their own decisions if deemed competent by their treating clinicians.
In essence, the Court of Appeal considered that the lower judges had put themselves in the place of the clinicians: it is “for the doctors to decide the competence, not for the judges”.
It’s a matter of clinical judgment, the court said, tailored to the patient in question, how to explain things to ensure that consent is sufficiently informed. The statement, however, came close to “a checklist or script that clinicians are required to adopt for the indefinite future.”
Some of the factors included were statements of disputed fact, others “raise questions to which different clinicians would give different answers”. In other words, the statement was problematic because of its rigidity but also because it covered areas of contested fact, expert evidence and medical opinions and “implied factual findings that the Divisional Court was not. not empowered to do ”.
The Divisional Court had explicitly declared that it was not for “the court to judge the weight to be given to the various experts”. He also remembered (rightly the Court of Appeal) that his role was not to “determine clinical disagreements between experts on the effectiveness of treatment”. It was for the NHS and regulators. But despite these statements, the Divisional Court made make factual findings and seek to resolve clinical disputes by ruling that:
- the treatment was experimental (in the sense that its long-term consequences are not clear); and
- the “vast majority” of patients prescribed puberty inhibitors subsequently received cross-sex hormones.
It was inadmissible, according to the Court of Appeal. “Judicial review,” he said, “is not the forum for resolving contested questions of fact, causation and clinical judgment” and the court erred in deciding between competing expert evidence without being properly admitted or tested on cross-examination.
The evidence from the Tavistock Clinic (and the trusts the patients were referred to) was that the treatment was safe, internationally approved, reversible, and went through a rigorous evaluation process. Maintaining the statement would require clinicians to withhold or temper their clinical judgment and rely on “what amounts to the clinical judgment of the court” when deciding whether a child can validly consent to treatment.
The court also said the guidelines were “insufficiently sensitive to the role of parents in consent”. On this point, the Court referred with approval to the decision of Judge Lieven in AB vs. CD  (a few months after the judgment of the Divisional Court, to which she contributed). In that case, she ruled that unless parents override the child’s wishes, they could consent on behalf of the child to puberty blockers without the need for a best interests claim. with the court. Children may have difficulty understanding the consequences of treatment, it has been said, but not their parents.
Throughout the judgment, in various ways, the Court has insisted on judicial deference. Controversial ethical issues that attract polarized opinions “are best assessed in a regulatory and academic setting and not through litigation,” he said. Moreover, as Lord Philips advised in R (Burke) v General Medical Council Courts should avoid expressing opinions in areas of social and ethical controversy when there is no specific issue to be resolved between the parties. The Divisional Court of Bell fell into this error.
The conclusion of the Court of Appeal was clear: court applications may be appropriate in specific and difficult cases, but it was wrong to give guidance to clinicians as to when such circumstances may arise. That said, the shutdown ends with its own word of caution. Clinicians will inevitably “take great care” before recommending treatment to a child, the court said, and will be “astute in ensuring” that consent is properly informed by the pros and cons of the proposed treatment in light of “the evolution of research” and all long life. consequences in the long term that it may have.
Somewhat disturbingly, he goes on to warn: “[C]physicians will be aware of the possibility of regulatory or civil action where, in individual cases, problems can be tested ”and, in this vein, notes a report by the Care Quality Commission from January 2021 critical of the aspects obtaining consent at the Tavistock clinic.
Regardless of the outcome (and leaving aside the prospect of another appeal), Ms. Bell’s litigation has brought to light a controversial and complex area of medical practice. As the figures presented to the Court show, the treatment of gender dysphoria in children is increasing: in 2009 there were 97 referrals to the Tavistock clinic; in 2019, there were 2,519. Given these numbers, Ms. Bell is unlikely to be the only young person to have changed her mind about treatment. If this is true, a clinical negligence claim is only a matter of time. Unlike judicial review procedures, this will provide a forum where the court is required to draw factual conclusions, make judgments on clinical practice, and resolve disputes between experts. On this occasion, the judges will have to decide.
Marina Wheeler QC is a lawyer at 1 Crown Office Row.