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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bell & Anor v The Tavistock and Portman NHS Foundation Trust  EWCA Civ 1363 (17 September 2021)
Cite as:  EWCA Civ 1363, (2022) 183 BMLR 34,  WLR(D) 490,  1 All ER 416,  1 FLR 69,  PTSR 544
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Dame Victoria Sharp DBE, President of the Queen's Bench Division, Lewis LJ and Lieven J
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
SIR GEOFFREY VOS, MASTER OF THE ROLLS
LADY JUSTICE KING
| (1) QUINCY BELL
(2) MRS A
|- and -
|THE TAVISTOCK AND PORTMAN
NHS FOUNDATION TRUST
|(1) UNIVERSITY COLLEGE LONDON HOSPITALS NHS FOUNDATION TRUST
(2) LEEDS TEACHING HOSPITALS NHS TRUST
(3) TRANSGENDER TREND LTD
(5) GENDERED INTELLIGENCE
(6) THE ENDOCRINE SOCIETY
(7) DR DAVID BELL
(8) THE ASSOCIATION OF LAWYERS FOR CHILDREN
Mr Jeremy Hyam QC, Mr Alasdair Henderson, and Mr Darragh Coffey (instructed by Sinclairslaw) appeared on behalf of the Respondents (the "Respondents")
The Interested Party did not appear and was not represented
Mr John McKendrick QC (instructed by Hempsons) appeared on behalf of the first and second Interveners
Mr Paul Skinner and Mr Aidan Wills (instructed by AI Law) appeared on behalf of the third Intervener
The remaining Interveners made written submissions
Hearing dates: 23 and 24 June 2021
Crown Copyright ©
The Lord Burnett of Maldon CJ:
"It is declared that the relevant information that a child under the age of 16 would have to understand, retain and weigh up in order to have competence to consent to the administration of puberty blocking drugs is that set out in paragraph 138 of the judgment handed down in this case on 1 December 2020."
That paragraph reads:
"It follows that to achieve Gillick competence the child or young person would have to understand not simply the implications of taking [puberty blockers] but those of progressing to cross-sex hormones. 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 [puberty blockers], 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 [puberty blockers] go on to [cross-sex hormones] and therefore that s/he is on a pathway to much greater medical interventions; (iii) the relationship between taking [cross-sex hormones] and subsequent surgery, with the implications of such surgery; (iv) the fact that [cross-sex hormones] may well lead to a loss of fertility; (v) the impact of [cross-sex hormones] 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 [puberty blockers]; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain."
"the conclusion we have reached is that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [puberty blockers]. In respect of children aged 14 or 15 we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent" (emphasis added).
The practice and policy under challenge
The factual background in more detail
"It is also relevant for the consultation purposes that matters of fertility are discussed and counselling by the team takes place, and the option of meeting a fertility specialist is offered, and often taken up. The options of fertility preservation are discussed with all the young people and it is requirement of the consent process that they fully understand this at an appropriate level. This understanding must include that they are unable to have the typical sexual relationship of their identified gender with another person on account of their biological sex organ development, and that other surgical procedures may be necessary later on to achieve that possibility. ... It is an absolute requirement before starting any treatment that a young person can fully understand this effect on fertility and sexual functioning according to their age and level of maturation."
The Divisional Court's decision
The approach to the evidence
The Divisional Court's treatment of the law
"An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."
The Divisional Court's conclusions
"[a]lthough a child may understand the concept of the loss of fertility for example, this is not the same as understanding how this will affect their adult life. A child's attitude to having biological children and their understanding of what this really means, is likely to change between childhood and adulthood. For many children, certainly younger children, and some as young as 10 and just entering puberty, it will not be possible to conceptualise what not being able to give birth to children (or conceive children with their own sperm) would mean in adult life. Similarly, the meaning of sexual fulfilment, and what the implications of treatment may be for this in the future, will be impossible for many children to comprehend."
"[t]he decisions in respect of [puberty blockers] have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway. In those circumstances we consider that it is appropriate that the court should determine whether it is in the child's best interests to take [puberty blockers]. There is a real benefit in the court, almost certainly with a child's guardian appointed, having oversight over the decision… ." 
"It is only if the guidance permits or encourages unlawful conduct in the provision of contraceptive services that it can be set aside as being the exercise of a statutory discretionary power in an unreasonable way."
"[t]he only practicable course is to entrust the doctor with a discretion to act in accordance with his view of what is best in the interests of the girl who is his patient."
He continued that:
"the doctor will … be justified in proceeding without the parents' consent or even knowledge provided he is satisfied on the following matters: (1) that the girl (although under 16 years of age) will understand his advice; (2) that he cannot persuade her to inform her parents …; (3) that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment; (4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer; (5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent."
"Certainty is always an advantage in the law, and in some branches a necessity. But it brings with it an inflexibility and a rigidity which is some branches of the law can obstruct justice, impede the law's development, and stamp upon the law the mark of obsolescence where what is needed is capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of "growing up" fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. If certainty be thought desirable, it is better that the rigid demarcations necessary to achieve it should be laid down by legislation after a full consideration of all the relevant factors than by the courts confined as they are by the forensic process to the evidence adduced by the parties and to whatever may properly fall within the judicial notice of judges."
At page 188B he added:
"The modern law governing parental right and a child's capacity to make his own decisions was considered in Reg. v. D  AC 77. The House must, in my view, be understood as having in that case accepted that, save where statute otherwise provides, a minor's capacity to make his or her own decision depends upon the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit."
"When applying these conclusions to contraceptive advice and treatment it has to be borne in mind that there is much that has to be understood by a girl under the age of 16 if she is to have legal capacity to consent to such treatment. It is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved. There are moral and family questions, especially her relationship with her parents; long-term problems associated with the emotional impact of pregnancy and its termination; and there are the risks to health of sexual intercourse at her age, risks which contraception may diminish but cannot eliminate. It follows that a doctor will have to satisfy himself that she is able to appraise these factors before he can safely proceed upon the basis that she has at law capacity to consent to contraceptive treatment. and it further follows that ordinarily the proper course will be for him, as the guidance lays down, first to seek to persuade the girl to bring her parents into consultation, and if she refuses, not to prescribe contraceptive treatment unless he is satisfied that her circumstances are such that he ought to proceed without parental knowledge and consent."
He said at page 191B-C:
"It can be said by way of criticism of this view of the law that it will result in uncertainty and leave the law in the hands of the doctors. The uncertainty is the price which has to be paid to keep the law in line with social experience, which is that many girls are fully able to make sensible decisions about many matters before they reach the age of 16. I accept that great responsibilities will lie on the medical profession. It is, however, a learned and highly trained profession regulated by statute and governed by a strict ethical code which is vigorously enforced. Abuse of the power to prescribe contraceptive treatment for girls under the age of 16 would render a doctor liable to severe professional penalty. The truth may well be that the rights of parents and children in this sensitive area are better protected by the professional standards of the medical profession than by "a priori" legal lines of division between capacity and lack of capacity to consent since any such general dividing line is sure to produce in some cases injustice, hardship, and injury to health."
The issues before the Court of Appeal
Did the Divisional Court approach the evidence appropriately?
Was the Divisional Court right to have made the declaration?
"21. There are great dangers in a court grappling with issues … when these are divorced from a factual context that requires their determination. The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice. This danger is particularly acute where the issues raised involve ethical questions that any court should be reluctant to address, unless driven to do so by the need to resolve a practical problem that requires the court's intervention. We would commend, in relation to the Guidance, the wise advice given by Lord Bridge of Harwich in Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, 193-4:
"… the occasions of a departmental non-statutory publication raising … a clearly defined issue of law, unclouded by political, social or moral overtones, will be rare. In cases where any proposition of law implicit in a departmental advisory document is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint, confine itself to deciding whether the proposition of law is erroneous and avoid either expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority or proffering answers to hypothetical questions of law which do not strictly arise for decision.""
"I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give consent valid in law."
Was the Divisional Court right to have given the guidance?