The Court of Appeal has ruled that under-16s do not lack the capacity to give informed consent concerning medical treatment which delays the onset of puberty, overturning a controversial ruling from last year.
On Friday, the court overturned a 2020 ruling by a divisional court which stated that under-16s lacked capacity to give informed consent to treatment concerning transitioning gender. The original case had been brought forward by Keira Bell, who claimed doctors should have challenged her more when she requested puberty blockers at a young age.
However, on Friday, the Court of Appeal ruled in favour of the appellant, the Tavistock Trust, which runs the UK’s only gender identity clinic for young Britons, and overruled the 2020 decision.
Friday’s ruling noted that the divisional court “had made no findings of illegality”. Judges at the Court of Appeal said they understood “the difficulties and complexities” of the issue, but insisted “it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances.”
In its written conclusions, the court acknowledged that clinicians will inevitably take great care before recommending treatment to a young patient and ensuring that both the parent and child are aware of the advantages and disadvantages of the proposed treatment.
The court also contended that doctors are subject to professional regulation and oversight, and while some may have fallen short of standards in the past, it did not impact the lawfulness of the practice.
The NHS prescribes gender identity treatment, including the use of puberty blockers, to some children who are experiencing gender dysphoria. The blockers are drugs which pause the process of puberty by suppressing the body’s release of hormones.
In December 2020, the divisional court ruled that children under 13 were “highly unlikely” to be able to give informed consent, adding that it was “very doubtful” that those aged 14 and 15 would have the requisite understanding to make the life-changing decision.
Bell, now 24, started taking puberty blockers at 16. She has said she now regrets her “brash” decision.
