by Terri M. Kelleher
Listen to an interview between Chris McCormack, Victorian president of the Australian Family Association, and national president of the AFA Terri M. Kelleher here on the decision on Bell v Tavistock Gender Clinic.
The High Court in Britain has handed down a unanimous decision in the case of 23-year-old Keira Bell (pictured above), who claimed she was unable to give informed consent to hormone treatments she received at the Tavistock Gender Clinic in the UK.
Keira Bell’s case was that she as a 16-year-old was unable to give informed consent as she was unable to understand the impact of the cross-sex hormone treatment. The case was a judicial review of the practice of the defendant, the Tavistock and Portman NHS Foundation Trust, through its Gender Identity Development Service (GIDS), of prescribing puberty suppressing drugs to persons under the age of 18 who experience gender dysphoria.
The Court found: “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 PBs [puberty blockers]. In respect of children aged 14 and 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. …
“In respect of a young person aged 16 or over, the legal position is different. There is a presumption of capacity under section 8 of the Family Law Reform Act 1969. … that does not mean that a court cannot protect the child under its inherent jurisdiction if it considers the treatment not to be in the child’s best interests. … We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17-year-old would be served by the clinical interventions at issue in this case.”
The Court granted a declaration that: “In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.”
This is a clear warning to gender-identity services that they should proceed with great caution before treating children or young people with puberty blockers or cross-sex hormones. They would be advised to have the matter of consent decided by an “independent” body, the court, before proceeding, as had been the case certainly in Australia until a number of cases in the 2000s saw the court withdraw from being involved in such decisions unless there was a dispute.
In Keira Bell’s case, no one disputed her decision as a 16-year-old to embark on cross-sex hormone treatment. She herself has said she wishes someone had said “no” to the treatment for her. She admits she probably wouldn’t have listened to that advice but wishes she had been protected from her own youth by independent assessment of whether it was in her best interests.
Now at 23, with a beard still growing and a deepened voice, she deeply regrets the treatment, which she couldn’t really understand at 16 would affect her whole life.
The decision is a real game-changer in the debate about gender transitioning in children and young people. It is about protecting children and young people even from themselves and their wishes, which at the time may seem essential to their happiness.
A more considered and long-term view by a competent body, independent of the child/young person and even their parents and clinicians who are close to the child/young person’s deep feelings, would give more protection from decisions that may seem pressing at the time but later on not such a good idea.
The Tavistock clinic has indicated it will appeal against the ruling.
The decision means that, potentially, if the NHS service has breached its duty of care in relation to young patients such as Kiera Bell in ensuring that they are able to give informed consent and the treatment results in long-term consequences, then those patients may have a claim for clinical negligence. Keira Bell may have a claim for damages.