Bell & Anor v The Tavistock And Portman NHS Foundation Trust

For a child under 16, Gillick competence to consent to puberty-blocking medication is treatment- and person-specific. The child must understand and be able to weigh the salient immediate and long-term consequences, including likely progression to cross-sex hormones, possible effects on fertility and sexual function, later surgery, unknown physical consequences, and the limited evidence of efficacy and purpose. The greater the decision’s significance, the greater the need to ensure genuine understanding. More information cannot overcome an inability to comprehend and weigh those implications. Competence is highly unlikely below 14 and doubtful at 14 or 15, although greater maturity may permit it. Persons aged 16 or over are presumed able to consent under the Family Law Reform Act 1969, subject to the court’s protective inherent jurisdiction.

The claimants sought judicial review of the practice of the Tavistock and Portman NHS Foundation Trust and associated NHS Trusts in prescribing puberty-blocking medication to persons under 18 experiencing gender dysphoria. They challenged both the ability of children and young persons to give informed consent and the adequacy of the information provided. The claim concerned the legality of the policy and practice, rather than an individual treatment decision. The central issue was whether, having regard to the treatment’s consequences and evidence base, a child or young person could achieve legal competence to consent.

Declaration granted. The court gave a declaration reflecting the terms of its judgment.

1. Under Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112, competence under 16 is treatment- and person-specific. The child must have sufficient maturity and intelligence to understand the nature and implications of the treatment. The assessment requires a flexible approach to the particular circumstances.
2. The child need not understand every peripheral detail. The child must understand the salient facts and essential implications in broad terms and simple language. For a significant and life-changing decision, there is a greater onus to ensure that the information is understood and can be weighed. The court adopted the approach in Re S (A Child) (Child Parent: Adoption Consent) [2019] 2 Fam 177 and Masterman-Lister v Brutton and Co (Nos 1 and 2) [2003] 1 WLR 1511. It held that the adult disclosure principles in Montgomery v Lanarkshire Health Board [2015] AC 1430 should not simply be equated with the child’s competence test.
3. Puberty blockers and cross-sex hormones had to be viewed as stages of one clinical pathway because the vast majority of patients proceeded from the former to the latter. Competence therefore required understanding of the immediate physical and psychological consequences, likely progression to cross-sex hormones, subsequent surgery, fertility, sexual function, future relationships, unknown physical effects, and the uncertain evidence base.
4. The treatment was properly regarded as experimental or innovative because its purpose, efficacy and long-term consequences remained uncertain, while its potential consequences were profound and life-changing. More information and discussion could not necessarily overcome a child’s inability to understand and weigh those matters. Competence was highly unlikely for a child aged 13 or under and doubtful for a child aged 14 or 15, although greater maturity could make competence possible. Re L (Medical Treatment: Gillick Competency) [1998] 2 F.L.R. 810 provided assistance by illustrating the difficulty of assessing competence for a grave decision.
5. For a young person aged 16 or over, section 8 of the Family Law Reform Act 1969 created a presumption of capacity to consent. As explained in Re W (a Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam. 64, the court retained its protective inherent jurisdiction where treatment was not in the young person’s best interests, although it generally had no role where the young person had capacity, clinicians considered treatment beneficial, and no dispute required resolution.
6. The court considered the information supplied by the defendant and the Trusts to be substantial and age-appropriate. The principal difficulty was the ability of children to understand and, most importantly, weigh the information. The issue of parental consent where a child could not lawfully consent was not decided because the defendant’s policy did not permit treatment without the child’s consent.
7. The court stated that clinicians should consider involving the court before treating a 16- or 17-year-old where there was doubt about the intervention’s long-term best interests, given its profound consequences and innovative character.