Bell vs Tavistock: Does informed consent stand in the way of autonomy?
In a landmark court case, judges ruled that children under 16 years of age could no longer be prescribed puberty blockers unless this has been authorised by the court. The reason: under 16s are not likely to be competent enough to “understand and weigh the long-term risks and consequences of the administration of puberty blockers”[1].
The judgement did not stop there, though. It also ruled that where persons over 16 years of age are involved, “clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment”. The legal challenge was brought against the Tavistock and Portman NHS Trust in London. One of the claimants was Keira Bell, who was prescribed puberty blockers at 16 by the Trust’s GIDS (Gender Identity Development Service) clinic, but later regretted transitioning[2].
The High Court ruling was not quite the outcome people expected and, naturally, led to a polarised reaction. While some welcomed it as “a victory for common sense”, others were concerned it would curb young trans people’s rights[3]. The issue of informed consent was a fundamental part of the judges’ final decision. However, it also begs the question: Could informed consent stand in the way of young individuals’ autonomy over matters regarding their health?
In medicine, informed consent has been a cornerstone for a long time. It rests on the principle that patients need to understand the possible consequences of their decision, prior to agreeing to or refusing certain treatment. It is “permission granted in the knowledge of possible circumstances”[4] rather than a simple “permission for something to happen or agreement to do something”[5].
In DNA testing, too, we must have “appropriate and qualifying” consent for each sample to be tested. Consent is required from each adult party that is to be tested. If the test involves a child under 16, then consent must also be obtained from a person with Parental Responsibility for that child. This is where it gets interesting: if the mother were under 16, she could give consent for her child to be tested. However, someone with Parental Responsibility for the mother would have to consent on her behalf for her own sample to be collected…which is a fascinating paradox we shall go back to in another article!
Although in the Bell vs Tavistock case treatment with puberty blockers would not be undertaken solely on parental consent, it was argued that “if the child’s consent was rendered invalid, the treatment would continue to be lawful if the parents had consented.”
Case law offers a mixed bag of conclusions on that matter. In Gillick vs West Norfolk and Wisbech Health Authority [1986], the House of Lords reached a majority that a doctor could lawfully give contraceptive advice and treatment to a girl under 16, without the consent of her parents[6]. But this could only be done if she demonstrates sufficient maturity and intelligence to understand the nature of the treatment.
In Re W (a Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam.64, the court ordered that a girl under 16, who was suffering from anorexia nervosa, be transferred to hospital specialising in eating disorders[7]. This was against the girl’s wishes. Although she was considered to have sufficient intelligence and understanding to make informed decisions, it was ruled that she should still receive treatment. The court emphasised that due to the nature of anorexia nervosa the patient does not wish to be cured but fulfilling such wishes could lead to severe consequences or even death.
Unlike contraceptive treatment and anorexia – or even DNA testing – not enough is yet known about the long-term effects of puberty blockers. This arguably makes achieving informed consent almost impossible both for parents and children, as the information given to either party would not be exhaustive. Therefore, it is not only the patient’s age that impacts on their ability to make an informed decision – it is the quality of the information, too. Clinicians must not be blamed for this, however, since they can only provide what is currently available from research and the literature. Every scientist would agree there is always more to explore on any topic, but when the knowledge gaps about a treatment are so significant, access to it should be regulated with the utmost strictness.
Of course, age cannot be entirely ignored either. Adolescents’ ability to assess the long-term consequences of certain treatments may come under scrutiny. A child’s experience of gender dysphoria must not be invalidated, but when the remedy could have irreversible effects on a person’s fertility and sexuality – experiences someone under 16 may not have been through yet – deciding whether such medication should be prescribed must not be rash or emotional.
With that being said, young people’s ability to make decisions regarding their own health must not be taken away from them. However, institutions also have a responsibility to safeguard children’s wellbeing and step in, if and when absolutely necessary. It is a delicate balance to strike and an individual approach would be required in each case. But when the consequences are likely to be very serious and much remains unclear about the long-term side effects of a treatment, the informed in “informed consent” can become elusive and further scrutiny is required to protect vulnerable children.
About the author: Dr. Neil Sullivan is General Manager of Complement Genomics Ltd (trading as dadcheck®gold). The latter is a company accredited by the Ministry of Justice as a body that may carry out parentage tests as directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969.
Please see: www.dadcheckgold.com. Tel: 0191 543 6334, e-mail ; sales@dadcheckgold.com
Puberty blockers, also known as hormone blockers, are used to delay puberty. They supress the release of sex hormones, including testosterone and oestrogen, and stop the body from developing breasts, periods, facial hair or deeper voice[8]. The medication is prescribed to young people experiencing gender dysphoria, as well as to treat premature puberty in children. It is described as physically reversible, if stopped, but it is not known what the psychological effects may be. It is also unclear if puberty blockers affect the development of the teenage brain or children’s bones[9].
Gender dysphoria is a “sense of unease that a person may have because of a mismatch between their biological sex and their gender identity”[10]. It could be so intense that it leads to feelings od depression and anxiety. According to the NHS, other signs of gender dysphoria include low self-esteem, becoming withdrawn or socially isolated and taking unnecessary risks[11].
Transgender describes a diverse group of people whose internal sense of gender is different to the one they were assigned at birth. To attain transgender status in the law, an individual must be diagnosed with gender dysphoria by a professional and then apply for a gender recognition certificate under the Gender Recognition Act, 2004[12].
[1] Bell -v- Tavistock judgment (judiciary.uk)
[2] Puberty blockers: Under-16s ‘unlikely to be able to give informed consent’ – BBC News
[3] Puberty blockers ruling: curbing trans rights or a victory for common sense? | Society | The Guardian
[4] Informed Consent | Definition of Informed Consent by Oxford Dictionary on Lexico.com also meaning of Informed Consent
[5] Consent | Definition of Consent by Oxford Dictionary on Lexico.com also meaning of Consent
[6] UK, Gillick v. West Norfolk and Wisbech Area Health Auhtority (hrcr.org)
[7] Re W (A Minor) (Medical Treatment) – PubMed (nih.gov)
[8] What are puberty blockers? – BBC News
[9] Gender dysphoria – Treatment – NHS (www.nhs.uk)
[10] Gender dysphoria – NHS (www.nhs.uk)
[11] Gender dysphoria – Signs – NHS (www.nhs.uk)
[12] Gender Recognition Act 2004 (legislation.gov.uk)