This is a quick post for non-law audiences to explain what happened in the appeal of Bell v Tavistock at the Court of Appeal on 17th September.
I previously covered the original judgment in Bell here.
To summarise the original judgment: it was held that “it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [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.” (Bell 1, at 145)
Gillick competence is the main legal issue at stake in these cases. It arises from a 1986 case where a mother wanted to stop her teenage daughter from accessing contraception. The Court in Gillick held that the girl could consent to be prescribed contraception “if she had sufficient maturity and intelligence to understand that nature and implications of the proposed treatment.” (Gillick, 105). Gillick competence applies to many aspects of medical care, including topical issues like abortion access and vaccine consent.
What the Divisional Court held in their declaration in Bell 1, then, was that a children under 16 would most likely not be able to understand the nature and implications of being prescribed puberty blockers, for a number of reasons. Prominent among the reasons was the correlation that the Court drew between use of puberty blockers (which are reversible) and later adult use of cross-sex hormones such as oestrogen or testosterone. The Court believed that children were entering on a path that they could not fully comprehend. This was the outcome desired by the applicant, Keira Bell, who believes that she did not have capacity to consent to transition-related healthcare as an adolescent (it is very important to note, however, that Bell did not have any irreversible medical interventions, such as her mastectomy, until she reached adulthood – thereby rendering her complaint somewhat hypothetical.)
The Court of Appeal in Bell 2 disagreed entirely with the Divisional Court’s conclusions. It found that the Divisional Court had identified that the Tavistock had not done anything unlawful, but continued to issue its declaration and guidance instead of dismissing the case. The Court of Appeal seemed surprised by this, and went on to enumerate the ways in which it disagreed with the lower Court.
It disagreed firstly with the way the Divisional Court had handled the evidence which was submitted to it, much of which was controversial in nature and “argumentative and adversarial” in a way that did not comply with the rules of evidence (Bell 2, 38). It looked at the evidence and found that puberty blockers were safe, tested, and separate to later hormonal treatments (Bell 2, 24-25). The Court of Appeal then went on to point out the many flaws it found in the judgment in Bell 1, in the Divisional Court’s handling of the legal precedent and the factual findings, and in the decision to issue the declaration and guidance quoted above (Bell 2, many paragraphs, 61 onward). They found the series of decisions made by the lower Court to be faulty and based on unsound footings.
Most importantly, the Court of Appeal affirmed that Gillick competence applies to decisions around puberty blockers. As they stated, “Nothing about the nature or implications of the treatment with puberty blockers allows for a real distinction to be made between the consideration of contraception in Gillick and of puberty blockers in this case…” (Bell 2, 76). Unlike in Bell 1, puberty blockers were not seen to be a special case or a particularly controversial subject. Gillick applies to them just as much as to any medical decision. The Court of Appeal went on to reaffirm the role of clinicians in making judgements around the prescription of blockers (Bell 2, 92) – and indeed, in all medical decisions – but found that it was for doctors, not the Courts, to make those calls.
What does this mean in practice? It means that young trans people under 16 can be judged capable to give their own consent to the prescription of puberty blockers, provided they fulfil Gillick criteria and fully understand the nature and implications of the treatment. It means that the Tavistock can go back to referring trans children to endocrinologists for puberty blocking treatment without needing court orders to do so. It means that young trans people are judged to be as competent as any other young person when it comes to making medical decisions about their bodies.
What now? Bell and her legal team have stated their intentions to appeal to the Supreme Court. However, in my legal opinion, it seems unlikely that there is a significant enough point of law identifiable for debate in the Court of Appeal judgment for the Supreme Court to agree to hear the case – a hearing in the Supreme Court is not guaranteed just because one of the parties seeks it.
It looks likely that this is the last the Courts will hear of the case Bell v Tavistock in and of itself, but its influence may continue to be felt. Arguments such as those made in the original submissions to the Divisional Court have been seen around abortion access and Covid-19 vaccines. Young trans people have seen their access to medication halted, in some cases for many months – which is time they will not get back, and during which they may have undergone some distressing physical changes. Gillick stands, and applies to trans persons as much as to cis persons, but its universality has been shaken by the way in which it was misapplied by the Divisional Court. It is now seen as open for attack by persons who might seek to try to limit its use much as the applicants did in Bell 1.
Sandra Duffy 