8th December 2020
Barrister: Sarah Phillimore
Source: Family Law Week
Judicial review of the practice of prescribing puberty suppressing drugs to persons under the age of 18 who experience gender dysphoria.
Dame Victoria Sharp P., Lord Justice Lewis, Lieven J handed down judgment on 1st December 2020.
The case involved a claim for judicial review of the practice of the defendant, through its Gender Identity Development Service (GIDS), of prescribing puberty suppressing drugs to persons under the age of 18 who experience gender dysphoria; a condition where persons experience distress because of a mismatch between their perceived identity and their sex at birth. Such drugs have been prescribed for children as young as 10 years old.
The court did not engage with the wider social or cultural aspects of transition. All accepted that gender dysphoria existed and it could cause extreme distress. The sole legal issue in the case was the circumstances in which a child or young person may be competent to give valid consent to treatment in law, and the process by which consent to the treatment is obtained.
The court did not need to consider if a parent could offer consent in place of the child as the defendant was clear that treatment would never be considered in such circumstances.
The court decided that, given the experimental nature of the treatment provided, and its possible and serious life-long consequences:
1. A child under 16 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.
2. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers.
3. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.
4. For a child aged 16 and over, the legal position is that there is a presumption that they have the ability to consent. However, given the significance of the treatment proposed, the court recognised that clinicians may also regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.