This blog post is intended as a quick explainer on Bell v Tavistock. It is not intended to be a full analysis nor nearly as comprehensive as a finished article would be. It is just here to help avoid misunderstandings or misinformation in the interim.
First of all: a pet peeve of mine is when people report on a case but do not provide the link or citation to the original case. The full citation for this case is R (on the application of) Quincy Bell and A -v- Tavistock and Portman NHS Trust and others [2020] EWHC 3274 (Admin), and the judgement text can be found here: https://www.judiciary.uk/judgments/r-on-the-application-of-quincy-bell-and-a-v-tavistock-and-portman-nhs-trust-and-others/ . This way you can check any of my claims about what the judgement states against the original to ensure that I am accurately representing the case. I wish everyone reporting on this, or any other case, would do the same.
Because I wanted to get this explainer out there as soon as possible, I do not explore all of the relevant issues in as much depth as I would like, particularly Gillick competence. If you would like that level of detail please wait until I have time to publish a peer reviewed article on the topic.
This case concerned a judicial review of the processes used by the Tavistock and Portman NHS trust when granting puberty blocker treatment to those under the age of 18. The claimants alleged that those under 18 were not capable of consenting to this treatment, that sufficient information had not been provided to enable this consent and that a decision should be required from the court of protection before such treatment can be granted.
The court found that those under 18 are, in fact able to receive puberty blocker treatment, which makes it somewhat baffling that groups supporting the claimants are claiming victory. The court also found that the information given to those patients was sufficient and that, contrary to the claimants arguments, a decision from the court of protection is not necessary in order to grant puberty blocker treatment.
The court re-affirmed the existing law on informed consent, that informed consent is necessary before any medical treatment. In order to give informed consent a person under 16 must meet a standard known as “Gillick competence”. This means that they must be sufficiently mature to understand the consequences of their decision, weigh the pros and cons and communicate their choice. There have been a number of cases which further explain the Gillick standard, which the court cited. They key points come from a case called Re S , and are that a person must be able to understand the “salient facts” and that if a procedure is likely to be life changing there is a greater onus to ensure that the patient understands these facts.
The reason why the Tavistock and Portman NHS Trust are seeking permission to appeal is because of the application of these legal principals to the particular facts in this case. The court found that the salient facts not only include the consequences of puberty blockers themselves, but also the consequences of cross sex hormone treatment, which while often administered following puberty blockers if the patient requires it, is not a necessary result of puberty blockers. This is a key point of contention, should a child have to understand, in addition to the consequences of the treatment they are proposing to undergo, but also the consequences of another treatment that they may or may not choose to have in the future. The court found that this is necessary as “Indeed, the statistical correlation between the use of puberty blockers and cross-sex hormones supports the case that it is appropriate to view PBs as a stepping stone to cross-sex hormones.” This reasoning appears to be flawed, and represents the creation of a new legal principal, that consent must also be obtained for treatments strongly correlated, but not necessitated, by the one at hand, but I imagine this will be explored on appeal.
The court also stated that the information provided to patients had been sufficient, however the relevant question was if the provision of information alone can be enough to make a patient Gillick competent. The court stated that this is not the case, and that some children may not be Gillick competent, no matter how much information they are given. Those children will be presumed to be competent when they turn 16. However the court also stated that there may be some cases where doctors may wish to apply to the court for a decision if, in a particular case, someone over the age of 16 does not appear competent. The court also stated that meeting the required level of understanding will be very difficult for a person under 16, which has understandably caused a great deal of concern.
In conclusion: Doctors can continue to prescribe puberty blocking treatment if the patient is Gillick competent. The court found that the patient must understand not only the consequences of puberty blockers, but also the consequences of later, optional treatment which they may choose not to have when the time comes.
I hope this clarifies the core points. There is a lot more that could be discussed in this case, such as the issue of whether puberty blockers are “experimental”, however I hope this quick post is sufficient to explain the core outcomes and points of contention in this case. I have no doubt that later posts / articles will follow with more comprehensive analysis.
-Megan Talbot
Megan Talbot is an associate lecturer in the Department of Law and Criminology at Aberystwyth University. She teaches a number of topics, including principals of evidence, law and gender and medical law. Her PhD research focuses on the legal recognition of non-binary genders.