Appeal allowed in Bell v Tavistock: the scope of declarations in the judicial review of clinical treatment decisions

In this blog post, Megan Griffiths considers the Court of Appeal’s recent judgment which overturned the High Court’s issue of a declaration and guidance on the ability of minors to consent to puberty-blocking treatment. 

The Court of Appeal has now heard and handed down judgment in Bell v Tavistock [2021] EWCA Civ 1363, overturning the legality of the findings of the court below. We blogged on the High Court’s first instance decision when it was published in December 2020.

As a brief reminder, two individuals brought judicial review proceedings against the NHS Trust responsible for GIDS, England’s Gender Identity Development Service. The Claimants challenged the legality of the Defendant’s practice of administering puberty blocking drugs to children as young as 10 years old. They argued that children (under 16) and young people (aged 16 and 17) were not capable in law of giving informed consent to that treatment, and sought a declaration to that effect.

The first instance decision

The High Court (Divisional Court) approached the judicial review by asking two questions:

  1. Are children and young people capable of giving informed consent to the puberty blocking treatment as a matter of law? The law on informed consent was not disputed: that for children (under 16) the test of Gillick competence applied, and that for young people (16 to 17) there was a statutory presumption of capacity (s8 FLRA 1969).
  2. If so, does the Defendant’s service provide them with sufficient information about the treatment and its consequences, such that they are able to give informed consent in practice?

The High Court found that the answer to question 1 was yes, but in very qualified terms, and with expressions of significant doubt as to whether they could in reality. The court considered that it was “highly unlikely” that any child between 10 and 13 “would ever be Gillick competent to give consent to being treated” [145]; they were “very doubtful” that a child aged between 14 and 15 could do, but that “increasing maturity of the child means there is more possibility of achieving competence at the older age” [145]; and, because the court found that the treatment had such significant and long-term effects and it should be described as “experimental” in nature, “it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to … the long-term best interests of a 16 or 17 year old” [147]. Question 2 did not therefore arise, although the court found that there was “no problem” with the quality of the information provided [150].

The court made a declaration that, in order to have Gillick competence, a child had to understand, weigh and retain eight specific pieces of information which it set out at [138]. That was the full extent of the declaration that was made; the remainder of the High Court’s findings stood as guidance only.

The appeal

The Defendant appealed on 8 grounds, including: that Gillick was misapplied, that the conclusions on young people contradicted the FLRA 1969, and appealing against the factual finding that the treatment was “experimental”. The Defendant succeeded, in that the Court of Appeal found that the first instance court should not have granted the declaration or made the guidance as it did.  

On the declaration, the Court of Appeal reviewed the purpose of a declaration and found that the declaration made was not appropriate. The reasons are encapsulated in paragraph [80]:

A formal declaration states the law. In so far as it specifies facts as part of the law (itself a difficult concept) they remain the law. There is a great deal of difference between the declaration originally sought in these proceedings (“no prescription of puberty blockers without court approval”) or in Gillick … and the declaration made here. It turns expressions of judicial opinion into a statement of law itself. In addition it states facts as law which are both controversial and capable of change.”

As such, the court found that the declaration should not have been granted.

On the guidance issued in respect of young people, the Court of Appeal found that the effect of the guidance was to mandate court applications in circumstances where they were not mandatory. It found that the court was not in a position to generalise about minors’ capacity to understand for the purposes of informed consent. This was contrary to the authorities of Burke and Gillick:

the court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice” [[21] of Burke] [cited at [77] and referred to in [85].

in cases where any proposition of law implicit in a departmental advisory document is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint … and avoid expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority” [193-4 of Gillick] [cited at [77]].

The Court of Appeal made clear that it was not suggesting that applications were inappropriate in these circumstances; rather it was not for the court to mandate them in every case. The court recognised the complexities associated with this particular form of treatment, and commented that “clinicians will inevitably take great care before recommending treatment to the child and be astute to ensure that the consent obtained … is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding” [92].

Comment

Prima facie, it appears that the Court of Appeal’s judgment was a success for the Defendant Applicant, in that it resulted in the first instance declaration being set aside, and as well as a finding that the High Court’s guidance was inappropriate. However, in a way, the substance of the court’s opinion remained the same, in that it is still essential for clinicians to consider each case carefully on a case-by-case basis.

Importantly, the strength and implications of the findings previously expressed as binding declarations and guidance by the High Court have been significantly reduced by the Court of Appeal. The first instance decision was thought to be useful for clinicians in terms of the bounds of informed consent in this area of treatment. That is no longer the case as it has been overturned. The Court of Appeal decision is most useful as a clear authority on the legal scope of declarations and guidance arising from judicial review proceedings. It is abundantly clear that it is for the clinician, not the court, to decide whether the individual has capacity to consent and that, in making any findings, the court should restrict those as much as possible to avoid falling into the Burke error as the first instance court was found to have done.

The Court of Appeal’s judgment can be found here.

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