General Propositions of Law not for the Courts

The Divisional Court fell into error when it made a declaration that the sanction of the court should always be obtained before puberty blockers and cross-sex hormones were prescribed for gender dysphoria in children.

It was also wrong to give guidance concerning when a court application would be appropriate, at the same time reaching general age-related conclusions about the likelihood or probability of different cohorts of children being capable of giving consent: (1) Quincy Bell (2) Mrs A v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363: Lord Burnett of Maldon LCJ, Sir Geoffrey Vos, MR, Lady Justice King

The Tavistock and Portman NHS Foundation Trust (Tavistock) operated a Gender Identity Development Service (GIDS) for patients up to the age of 18 suffering from gender dysphoria.

The treatment of children for gender dysphoria was lawful in this jurisdiction.  It was no part of a judicial review claim advanced before the Divisional Court[1] that the prescription of puberty blockers and then cross-sex hormones (two common steps in treatment for gender dysphoria in children) was in itself unlawful.

Instead, the claim advanced was that the sanction of the court should always be obtained before they were prescribed. Although patients with gender dysphoria were referred to Tavistock for assessment, Tavistock did not prescribe puberty blockers; if satisfied it was medically appropriate referral was made to UCH London or Leeds Teaching Hospitals.

The appeal court concluded that the declaration implied factual findings that the Divisional Court was not equipped to make.

At the heart of Tavistock’s appeal was the submission that, in making the declaration, the Divisional Court departed from Gillick[2] which had established that children under 16 could make their own decisions if assessed individually as competent to do so by their treating clinician.

It was submitted on appeal that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone”.

The declaration was in terms which not only stated the law but also identified an exhaustive list of the factual circumstances that must be evaluated in seeking consent from a child and specified some matters as conclusive facts.

It came close to providing a checklist or script that clinicians were required to adopt for the indefinite future in language which was not capable of clear and uniform interpretation and in respect of which there were evidential conflicts.

Some of the factors identified in the declaration were simple statements of fact.  Others begged questions to which different clinicians would give different answers.

The factors stated by Lord Scarman in Gillick in the context of refusing to grant declaratory relief demonstrated clearly how different they were from the factors stated by the Divisional Court in the present case.

Each of the factors stated by Lord Scarman was an area for evaluation, rather than a conclusory statement of fact or medical opinion.

The ratio decidendi of Gillick was that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment.

Nothing about the nature or implications of the treatment with puberty blockers allowed for a real distinction to be made between the consideration of contraception in Gillick and of puberty blocks in the present case bearing in mind that, when Gillick was decided 35 years ago, the issues it raised in respect of contraception for under 16s were highly controversial in a way that is now hard to imagine.

In R (Burke) v General Medical Council[3] Lord Phillips of Worth Matravers MR observed that there were great dangers in a court grappling with issues … when these are divorced from a factual context that requires their determination.

He was critical of declarations which “did not purport to resolve any issues between the parties but appeared to be intended to lay down propositions of law binding on the world.”

The declaration which the Divisional Court made did not sit happily with the observations of Lord Phillips.

[1] Dame Victoria Sharp DBE, President, Lewis LJ and Lieven J

[2] Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112

[3] [2005] EWCA Civ 1003, [2006] QB 273