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When law and ethics entwine

by
08 January 2021

A ruling on puberty-blocking drugs showed judicial common sense, says Mark Bratton

PA

Keira Bell, 23, who began taking puberty-blockers when she was 16 before “detransitioning”, speaks outside the Royal Courts of Justice in London after a High Court ruling, on 1 December

Keira Bell, 23, who began taking puberty-blockers when she was 16 before “detransitioning”, speaks outside the Royal Courts of Justice in London after...

IN THE High Court last month, a senior panel of judges decided that it was very unlikely that children and young persons under the age of 18 experiencing gender-dysphoria would have the legal capacity to consent to puberty-suppressing drugs. The case is a very good example of judgment in which law and ethics entwine inextricably.

The claimants argued that the defendant, the Tavistock and Portman NHS Foundation Trust, had acted unlawfully and, therefore, outside its public remit by prescribing and administering through its intermediaries puberty-blocking drugs to children (News, 9 October).

This practice, they contended, invariably led to the administration of cross-sex hormones, leading to the possibility of gender-reassignment surgery. Children and young persons under the age of 18, they averred, were not normally competent to consent to puberty-blocking drugs, because they were usually too young and immature to appreciate the implications of proceeding along a clinical pathway that would very probably result in traumatic and irreversible surgery that would mark them permanently.

 

ALTHOUGH the law of consent as it relates to children is well-established, the architecture of the law in which it is set is quite complex.

Children are not, by definition, incompetent to give consent to medical treatment in their own right. A child under 16 can consent to medical treatment if the child is deemed sufficiently intelligent and mature to understand the nature and effects of the proposed treatment (the so-called Gillick test). Sixteen- and 17-year-olds are considered competent unless they can be shown to be incapable of weighing the information and the implications of the treatment satisfactorily. While the test of competence is always decision-specific, it is calibrated according to a “sliding scale”, which considers both the child’s personal characteristics and the gravity of the decision to be made.

One of the striking subtleties of this case is that the court stops just short of reinstituting a “status test” of competence for children in the sphere of puberty-suppressing drugs. The court doubts whether under-16s would ever be competent to give consent to the administration of puberty-blockers. As for 16- and 17-year-olds, the court strongly enjoins on clinicians the novel procedural expedient of seeking court approval for such pubertal therapy.

The majority of the judgment is devoted to examining the legally significant factual question whether puberty-blockers actually functioned to give children time to think about their gender identity or, rather, invariably led to hormonal treatment and surgery.

Because of the high statistical correlation between the use of puberty-blockers and cross-sex hormones, persuasively adduced in evidence by the claimants, a child’s understanding for the purposes of lawful consent could not be restricted simply to the nature and effects of using puberty-blockers. That understanding necessarily had to extend to the potentially life-changing and irreversible consequences of hormonal treatment and the possibility of surgery.

The court took the view that on the “sliding scale” the gravity of the decision to take puberty-suppressing drugs was so great that it was nearly inconceivable that a child would have the level of maturity to understand the information and implications of treatment. Although 16- and 17-year-olds would be presumed to have capacity, the court urged clinicians to seek court approval to ensure that they were, in fact, capable of weighing up the long-term risks and consequences to a sufficient degree.

A surprising, and, as it turned out, defining feature of the case — which the court noted repeatedly with near-dismay — was the dearth of statistical evidence put forward by the defendant to support their view that the impact of taking puberty-blockers should be treated separately from the consequences of hormonal treatment.

The defendant has subsequently published a preprint of a peer-reviewed article, shortly to appear in a respectable scientific journal, demonstrating that 98 per cent of children who receive puberty-blockers go on to receive cross-sex hormones. This corroborates the evidence of a Dutch study that the claimants offered in support of their case, and which the court found persuasive.

 

FOR some, the court’s decision represents a form of institutional discrimination against children who are seeking the dignity of a distress-relieving match between their perceived gender identity and its proper physical expression. To deny this therapy to them by setting the autonomy bar so high, they say, is an unacceptable form of judicially sanctioned paternalism.

For others, the court’s decision is an admirable example of practical wisdom both in its attention to factual detail and in its demand for evidence in an ethically complex field of medicine. Children’s best interests are of paramount importance, and, to protect those interests, autonomy must have its limits.

In my view, this decision is a good example of judicial common sense underpinned by the rigorous application of robust legal rules and principles to complex facts, resilient to forces that may serve to obscure salient details of moral significance.

 

The Revd Dr Mark Bratton is Rector of Berkswell and an Honorary Lecturer in Medical Ethics and Law in the Warwick Medical School at the University of Warwick. He is also the Bishop of Coventry’s Adviser on Medical Ethics.

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