In a judgment that serves to demonstrate the polarisation of views around the prescription of “puberty blockers”, yesterday the Court of Appeal ruled in favour of the Tavistock and Portman NHS trust, setting aside the ruling of a High Court judicial review presided over by the President of the Queen’s Bench Division, Dame Victoria Sharpe DBE (reported here by LGN). The two judgments could hardly be more different. Where the High Court took a wide view of the factual context in which puberty blockers are prescribed, the Court of Appeal (led by Lord Burnett, the Lord Chief Justice of England and Wales) took a much narrower approach confining itself to technical questions of judicial review. Where the High Court looked in detail at clinical practice and lack of record keeping at the Tavistock, the Court of Appeal emphasised that defendant evidence (here the Tavistock) in judicial review proceedings should be accepted by the court. Where the High Court emphasised the life-changing nature of treatment at the Tavistock, the Court of Appeal conceptualised it as legally identical to the prescription of contraceptives as in the case of the leading judgment in this area known as “Gillick”. Kiera Bell has indicated she will seek permission from the Supreme Court to hear an appeal of yesterday’s judgment, a decision that will be made according to whether the case raises a matter of law of public importance. It remains to be seen whether this judgment will herald the start of a raft of clinical negligence claims by detransitioners with the Lord Chief Justice openly raising the spectre of lawsuits in the following terms, “As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action”.
Anyone looking for grand claims as to “gender critical” or “trans rights” will be disappointed by the judgment, which confines itself narrowly to technical areas of the law of evidence in judicial review proceedings and abstract statements of legal principle about informed consent. In essence, this is a judgment about how judicial review operates, not a statement as to the wisdom or morality of prescribing puberty blockers. In a clear statement indicating the court would not stray into political questions, the Lord Chief Justice ruled, “The treatment of children for gender dysphoria is controversial. Medical opinion is far from unanimous about the wisdom of embarking on treatment before adulthood. The question raises not only clinical medical issues but also moral and ethical issues, all of which are the subject of intense professional and public debate. Such debate, when it spills into legal proceedings, is apt to obscure the role of the courts in deciding discrete legal issues.”
Framing the prescription of puberty blockers as lawful (there being no general challenge in principle to such prescriptions in some cases), the Court of Appeal rationalised the appeal first as a failed judicial review inasmuch as it made no general claim of unlawful behaviour. If the Supreme Court hears the case, this may be a point taken on appeal as it could be said to amount to the Court simply asking, “Is a lawful policy lawful?” That stands in stark contrast to the High Court’s original ruling which asked the question of whether a child could ever meaningfully understand what loss of sexual function and lifelong sterility meant. This marks a fundamental difference in approach, with the Court of Appeal assuming a child can give fully informed consent (and therefore be what is known in law as “Gillick competent”) and the High Court doubting that a child as young as 10 could make such decisions. Where the High Court took on the role of protecting children, the Court of Appeal left the question of any harm done to a child to clinical negligence actions after the fact of treatment.
That conclusion partly stems from the Court of Appeal’s analysis on the law of evidence in judicial review proceedings. Perhaps surprisingly to any member of the public, the Court of Appeal pointed out that in Judicial Review proceedings the evidence of a public body defendant (the Tavistock here) would “ordinarily be preferred”. While this is an uncontroversial statement of law generally speaking, the context here is unusual, with the Tavistock facing criticism for poor record keeping in the High Court and recently by Employment Judge Goodman (reported here by LGN) as to the interplay between homophobia and gender-based medicine. It is also somewhat undercut by the Tavistock’s own “Service Specification”, which reads “in adolescence is that there is limited scientific evidence for the long-term benefits versus the potential harms of the intervention. There are also concerns that it is uncertain whether or not a young person will continue to identify as transgender in the future, given that some subsequently identify in a different way.” The inability of the Court to look critically at or properly examine evidence from the Tavistock in a judicial review is a significant feature of the judgment with the Court of Appeal emphasising that in an action of this kind “a particular difficulty here was that there was no way of resolving evidential disputes”. Having analysed the law of evidence in this way, the Court of Appeal judgment is in some senses an absence of judgments as to key issues, most notably on the question of whether this field of medicine is properly to be described as “experimental”. As to the High Court answering that question in the affirmative, the Court of Appeal ruled “we think that it would have been better to avoid controversial factual findings”.
Having conceptualised the policy under challenge as lawful from the outset and then ruling that the Court could and should not test the evidence in the case, the Court of Appeal dismissed the judicial review, leaving only the question of whether a court could nonetheless make a “declaration”. In this context, a declaration is a judicial statement as to what is and is not lawful. The High Court judgment contained a detailed checklist of factors a child would need to understand before making potentially life changing decisions and it also required applications to the Court for younger children. The Court of Appeal ruled that the “checklist” was in essence a duplication of Tavistock procedure and that frequent applications to a court would likely only build in unacceptable delays to treatment. This aspect of the judgment is perhaps the least controversial, with referrals from the Tavistock all but ceasing following the High Court judgment.
The heart of the judgment is really to directly equate contraception with puberty blockers legally, with the Court of Appeal doing so explicitly in the following passage from the judgment, “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 bearing in mind that, when Gillick was decided 35 years ago, the issues it raised in respect of contraception for the under 16s were highly controversial in a way that is now hard to imagine.” If the Supreme Court grants permission to hear an appeal, this is likely to be a core issue.
Victoria Gillick lost her contraception case before the High Court, won in the Court of Appeal and then lost in the Supreme Court of its day, the Appellate Committee of the House of Lords. It remains to be seen if Kiera Bell’s case will follow a similar path of alternatively winning and losing as she ascends the appellate ladder. For the time being, the significance of this judgment will not be lost on clinical negligence practitioners who may well see detransitioner claimants seeking to put right wrongs with actions for damages, rather than judicial review.
Dennis Kavanagh is a legal commentator and barrister (non-practising).
Dennis blogs about LGBT issues and law here