O v P & Anor

A person aged 16 or over who has capacity may consent to medical treatment without parental agreement. The court retains an inherent welfare jurisdiction to override that decision, but intervention requires a proper case-specific basis. The existence of controversy about treatment, or concerns about professional practice generally, does not justify the court assuming the role of clinicians, regulators or government. That remains so where treatment is proposed by a regulated provider in England and Wales. The court should avoid making broad declarations on medical issues divorced from the facts of a case. The inherent jurisdiction remains flexible and may justify intervention where, for example, the young person is exceptionally vulnerable or the proposed provider is unregulated and ordinary safeguards do not apply.

The mother sought a prohibited steps order under section 8 of the Children Act 1989 and a best-interests declaration under the inherent jurisdiction concerning medical treatment for her 16-year-old child, Q, who identifies as male. An interim order had restricted private treatment. The mother agreed to referral to a regulated private provider for assessment but sought an adjournment and a general declaration requiring court oversight of treatment offered to persons under 18. The father and Q sought dismissal of the proceedings, relying on Q’s ability to consent to treatment with clinical support. The central issues were whether the court should override or supervise Q’s consent and whether the proceedings should continue pending assessment.

1. Outcome. The interim orders were discharged. The proceedings were brought to an end. The court declined to make any declaration concerning medical treatment or general court oversight. The father was asked to undertake not to fund or facilitate treatment for Q through Gender GP or another offshore agency while Q remained a minor.
2. Under section 8(1) of the Family Law Reform Act 1969, a minor who has attained 16 and has capacity may consent to medical treatment without parental consent. The principles in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 apply. The court’s welfare jurisdiction may override a competent minor’s decision, but the cases generally concern refusal of life-saving or sustaining treatment recommended by clinicians.
3. The court was not shown any case in which a judge had overridden a young person’s decision to consent to treatment actually offered by a treating doctor in England and Wales. There was no realistic basis to override Q’s consent to treatment by a regulated provider or clinician in this country.
4. The controversy and evidential uncertainty surrounding treatment for gender-related distress were matters for medical professionals, regulators and, if necessary, government. They did not justify judicial supervision of treatment by a properly regulated provider. The court nevertheless recognised that intervention might be appropriate where a child was exceptionally vulnerable or proposed providers were unregulated and ordinary safeguards did not apply.
5. Following Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 and AB v CD [2021] EWHC 741, the Cass Review did not justify a first-instance departure from the existing law. The court also applied the caution in R (Burke) v General Medical Council [2005] EWCA Civ 1003 against deciding general medical and ethical questions divorced from a concrete factual dispute.
6. In the circumstances, continuation of the proceedings was contrary to Q’s best interests. It risked further delay, entrenchment and damage to his relationship with his mother, and could distract him from engaging with clinical assessment and considering the advantages and disadvantages of any treatment.