When can you consent to puberty blockers?: Bell v. Tavistock NHS Foundation (The United Kingdom)12/5/2020 Anushka MehtaCo-Founder, Rightantra The High Court of Justice in London, recently passed a landmark ruling in the legal action brought by Ms. Keira Bell (who identifies as Quincy Bell) against the Tavistock and Portman NHS Foundation Trust (“NHS”), which undertakes the task of prescribing puberty suppressing drugs to persons under the age of 18 years who experience gender dysphoria. Gender dysphoria (“GD”) is a condition where persons experience distress because of a mismatch between their perceived identity and their natal sex or the assigned gender. Facts
Ms. Bell, the first claimant, was born a female and in her younger days, was always drawn towards male clothing and games. Always feeling different from the stereotypical female, she would feel disgusted with her body and she started taking medication to prevent her periods from the age of 14 years. She was referred to the Gender Identity Development Service of the NHS. Despite being warned against medical transition, Ms. Bell continued her sessions with the NHS and was eventually put on puberty blockers (“PB”). She was on testosterone for 3 years after which she went ahead with a double mastectomy surgery at the age of 20 years. However, in order to complete her transition from one gender to another, she would have to take a regular dose of drugs for the rest of her life to maintain her male appearance. This reality hit Ms. Bell and she realised in January, 2019 that she would like to identity as a woman and would like to consider birthing children, down the line. She now believes that her decision as a teenager was brash and now she will have to live with the lifelong consequences. She said that the transition was a superficial solution to a complex identity issue. PB is used to prevent the early onset of puberty among mostly girls. Their usage in GD is to cause regression of the first stages of seual characteristics. For those suffering from GD, after a course of PB, cross-sex hormones, such as testosterone, are given to induce the process of puberty which would take place for members of the opposite gender, at that age. This assists in transition and the mental health functions of these adolescents. Thus, two questions were raised before the High Court for judgement, firstly whether children and young people are capable of consenting and secondly, whether the information given by NHS to facilitate decision making is sufficient. Decision of the Court Courts in England earlier determined competence of a child to consent based on the Gillick Test formulated by the House of Lords which is based on sufficient maturity and intelligence to understand the nature and implications of the activity for which consent was provided by the child. However, in this ruling the High Court clarified that to determine whether a child is Gilik competent would depend on the nature of treatment proposed and the individual's characteristics. It was further held that lines can always be drawn by the courts upon this test of competence. The High Court held that it would be difficult for children aged 16 and 17 years old to understand not simply the implications of taking PBs but those of progressing to cross-sex hormones. The High Court was of the view that there would be too many parameters (eg. loss of fertility) for a child to weigh up before he/she can provide consent and this would be a complex decision which might not even be conceptualised by some children. “We do not think that the answer to this case is simply to give the child more, and more detailed, information. The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree. There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.” Thus, the High Court laid down its observations with regard to each of the following ages,
In conclusion, this means that a child under 16 years may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. Read the full judgement here and an interesting article here.
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