Bell v Tavistock and Portman is a recent high-profile case on the lawfulness of prescribing puberty-suppressing drugs to children experiencing gender dysphoria. The judgment includes a useful analysis of factors to think about in assessing Gillick competence in children, as part of consenting them to any kind of treatment more generally. In this insight, we provide the background of the case, as well as a helpful checklist on assessing Gillick competence.

What is Gillick competence?

In English law, a child is a person aged under 18. Young people aged 16 and 17 are presumed under legislation (the Family Law Reform Act 1969 and the Mental Capacity Act 2005), to have capacity to consent to medical treatment, and their consent is as valid as an adult’s. For those aged under 16, the Courts (most notably in the 1980s case of Gillick v West Norfolk and Wisbech Health Authority) have held that children may consent to treatment without the involvement of their parents if they have sufficient maturity and understanding to take a decision of the seriousness in question. A person with parental responsibility can ordinarily consent on behalf of a non-Gillick competent child or a young person who does not have capacity (although the Court did not consider this issue in the Bell v Tavistock and Portman case).

What factors are relevant in determining that a child has Gillick competence?

The Bell v Tavistock and Portman judgment contains a useful checklist of factors:

1. What is the nature of the treatment proposed, and what are the individual characteristics of the child in question? The assessment is necessarily an individual one. Where the decision is significant and life changing, then there is a greater onus to ensure that the child understands and is able to weigh the information.
2. How old is the child? An older child is more likely to be sufficiently mature to understand, use and weigh up the information. The Court gives the example that a 7-year-old will not be Gillick competent in relation to any kind of treatment.
3. Can the clinical team show that (if necessary) efforts have been made to allow the child or young person to achieve Gillick competency, where possible? Clinicians should work with the individual to help them understand the treatment proposed and its potential implications in order to help them achieve competence.
4. Not every individual under 16 can achieve Gillick competencein relation to every treatment proposed. Where the consequences of the treatment are profound, the benefits unclear and the long-term consequences to a material degree unknown, it may be that Gillick competence cannot be achieved, however much information and supportive discussion is undertaken.
5. Can the child “understand an explanation of that information in broad terms and simple language”? The bar should not be set too high. The Court held that the test for Gillick competence was a different one to whether consent was valid under Montgomery, which is the leading case on what information needs to be provided about risks (see our update here).
6. Can the child or young person demonstrate sufficient understanding of the salient facts? In deciding what facts are salient and what level of understanding is sufficient, consideration needs to be given to matters which objectively ought to be given weight in the future even if the child might be unconcerned about them at the time.

How did the Court decide the issue of Gillick competence for decision making about puberty blockers?

Applying those criteria, the Court held that the relevant information that a child would have to understand, retain and weigh up in order to be Gillick competent in relation to puberty blockers for gender dysphoria, was:

1. the immediate consequences of the treatment in physical and psychological terms;
2. the fact that the vast majority of patients taking puberty blockers go on to cross sex hormones (CSH) and therefore that s/he is on a pathway to much greater medical interventions;
3. the relationship between taking CSH and subsequent surgery, with the implications of such surgery;
4. the fact that CSH may well lead to a loss of fertility;
5. the impact of CSH on sexual function;
6. the impact that taking this step on this treatment pathway may have on future and life-long relationships;
7. the unknown physical consequences of taking puberty blockers; and
8. the fact that the evidence base for this treatment is as yet highly uncertain. The Court doubted that a 14 or 15 year old would be able to do this, and that 13 year olds would be highly unlikely to do so. The Court advised that in cases where clinicians propose this treatment, the benefits of seeking a declaration from the Court should be considered.

You can find a copy of the judgment here.

How Capsticks can help

Our specialist healthcare advisory team of over 20 lawyers advises clients across the country on matters relating to consent, capacity and medical treatment, whether for children, young people or adults. To discuss this case or any issues involving your organisation, please speak to Charlotte Radcliffe, Adam Hartrick or Tracey Lucas.