N v N (Expert Evidence on Gender Affirming Treatment)

In proceedings concerning a young person over 16 receiving gender-affirming hormone treatment, expert evidence is permitted only where necessary to assist the court to resolve the proceedings justly. A parent’s assertion that the young person lacks capacity does not itself justify expert capacity evidence. There must be at least some prima facie evidence capable of rebutting the statutory presumption of capacity. The court’s welfare jurisdiction to override consent is narrow and arises only where intervention is necessary to protect the young person from grave and irreversible mental or physical harm. Wider policy questions concerning gender-affirming treatment are not for determination in an individual best-interests case. Endocrinological evidence concerning the benefits and risks of continuing or stopping treatment was necessary, but the evidence was to be provided by a single joint expert.

The parents of a 17-year-old young person sought orders under the Children Act 1989 and the inherent jurisdiction. They principally sought a declaration that the young person lacked capacity to consent to hormone replacement therapy prescribed by her general practitioner, and sought permission to instruct psychiatric and endocrinological experts.

The issues at this case-management hearing were whether expert evidence was necessary under section 13 of the Children and Families Act 2014, which experts should be instructed, and whether the parents should be permitted to instruct separate experts. The court also considered the proper scope of the proposed endocrinological questions.

1. Scope of proceedings. The court was concerned with the young person’s best interests and whether continuing or stopping hormone replacement therapy could expose her to grave and irreversible mental or physical harm. Wider questions of medical policy, the Cass Review, and the general merits of gender-affirming treatment belonged to the NHS, the medical profession, regulators and Parliament, not to this case ([25]-[26]).
2. Psychiatric evidence. The presumption of capacity under section 1(2) of the Mental Capacity Act 2005, together with the principle that an unwise decision does not establish incapacity, meant that an assertion of incapacity was insufficient. At least some prima facie evidence that the young person might lack capacity in the relevant decision-making domains was required before expert evidence could be necessary. There was no such evidence. Nor was there cogent evidence of grave and irreversible psychiatric harm requiring expert psychiatric assessment. Directing an assessment opposed by the young person would also adversely affect her welfare ([28]-[37]).
3. Endocrinological evidence. Expert endocrinological evidence was necessary because the court lacked expertise concerning the benefits and risks of the treatment already commenced, and of continuing or stopping it. Dr Cotterill was preferred because of his relevant clinical experience, prior instruction in similar cases, ability to report promptly and the young person’s preference ([38]-[41]).
4. Single joint expert and scope. The parents were not entitled to a second expert as a matter of course. The test remained necessity under section 13 of the Children and Families Act 2014, ordinarily assessed after receipt of the single joint expert’s report. Permission was granted for Dr Cotterill to address the benefits and risks of current, continuing and withdrawn treatment, and the appropriate management of either course ([42]-[46]).