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AB v CD & Ors [2021] EWHC 741

An application by, AB, the mother of a child, XY for a declaration that she and CD, the child’s father, have the legal ability to consent to the administration of hormone treatment to suppress puberty, known as “PBs”/puberty blockers. The case concerned a 15 year-old child, with Gender Dysphoria, who was born a boy, came out as transgender at age 10, and had transitioned socially in all aspects of life, including legal paper work, which included a name change by deed poll.

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The court framed the questions to be answered as follows [as per Sir James Munby's formulation]:-


a. Do the parents retain the legal ability to consent to the treatment?

b. Does the administration of PBs fall into a "special category" of medical treatment by which either:


i. An application must be made to the Court before they can be prescribed?

ii. As a matter of good practice an application should be made to the Court ?

The decision followed hot on the heels of the Divisional Court's decision in Bell v The Tavistock and Portman NHS Foundation Trust & Ors [2020] EWHC 3274 (Admin) ("Bell"), which set out the matters that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers. Although XY had provided consent to the treatment prior to Bell, an updating capacity assessment on the basis of the Bell criteria had not been carried out. The parents wished to consent on XY's behalf.

Bell is currently the subject of an appeal to the Court of Appeal due to be heard in June.

In considering whether the parents retained the legal ability to consent to treatment, the court reviewed the authorities which it found were replete with statements 'about not merely the centrality of parents in decisions about their children, but also as to why the Courts should in the vast majority of situations respect and uphold the parents' views and decision making about their children.', which were aspects of the parental rights and duties set out in Article 5 of the UNCRC and Article 8 of the ECHR.

The court approached the problem on the following basis:-


"It therefore cannot be established with certainty whether [XY] is, or is not, Gillick competent. In those circumstances, I am going to consider the matter on two alternative bases; either that [XY] is not Gillick competent, or that [XY] is Gillick competent, but it remains relevant whether [XY's] parents can also give operative consent to the treatment."

The court reviewed the decision in Gillick and concluded, neatly, that:-


"In the present case, in the light of the decision in Bell, and the particular issues around Gillick competence explained in that judgment, it has not been possible to ascertain whether the child is competent. In this case, there are two options. If the child is Gillick competent, [XY] has not objected to her parent giving consent on her behalf. As such, a doctor can rely on the consent given by her parents. Alternatively, the child is not Gillick competent. In that case, her parents can consent on her behalf. It is not necessary for me or a doctor to investigate which route applies to give the parents authority to give consent. Therefore, in my view, whether or not XY is Gillick competent to make the decision about PBs, her parents retain the parental right to consent to that treatment."

Hence, the court concluded, the parental right to consent to treatment continues even when a child is Gillick competent, save where the parents are seeking to override the decision of the child.

With respect to the second issue, as to whether PBs fall into a special category of medical treatment requiring court authorisation either as a matter of good practice or a matter of law, the court considered that there were 2 sub issues:-


a) firstly, "the existence and/or scope of any "special category"; and,

b) secondly, "whether PBs should fall within such a category."

The court considered, in the light of case law that whether it was good practice or a legal requirement was probably in most cases a distinction without a difference. Further, the court was of the view that whether, if it existed at all, there was some limited 'special category' of medical treatment, it was very limited and PBs did not fall within it.

The only special category case in respect of which the court could identify a requirement to come to court was a case of the kind in Re D (A Minor) (Wardship Sterilisation) [1976] 1 All ER 326 i.e. "in a the case of a "non-therapeutic" sterilisation of an 11 year old."

The court noting that-


"In all other contexts, including where the parental decision will lead to the child's life ending, the Court has imposed no such requirement. There are a range of cases where there does have to be Court approval, but this is where there is a clinical disagreement; possible alternative treatment of the medical condition in issue; or the decision is, in the opinion of clinicians, finely balanced. These are fact specific instances rather than examples of any special category of treatment where the Court's role is required simply because of the nature of the treatment."

The court went on to state that whilst "the ratio of Bell is that a child is very unlikely to be in a position to understand and weigh up the[ Bell] factors…" in order to establish the relevant Gillick competency, the uncontested evidence in this case strongly suggested that 'XY's parents have fully considered these matters and come to a careful and informed decision.', and, as a matter of principle, the factors in Bell 'do not justify removing the parental right to consent.'

The court then addressed its concerns about 2 issues in the context of parents seeking to consent for PB's to children, given the broader backdrop of 'division of clinical and ethical views [which had] become highly polarised.' and the possibility of parents feeling under pressure to consent from a child who has Gender Dysphoria and is convinced they should be prescribed PBs.

1. Firstly, the court was concerned that in the context of the structure of the Tavistock and UCL, "…it may be that clinical difference and disagreement will not necessarily be fully exposed. The taking of strong, and perhaps fixed, positions as to the appropriateness of the use of PBs may make it difficult for a parent to be given a truly independent second opinion. However, in my view this is a matter for the various regulatory bodies, NHS England and the Care Quality Commission, to address when imposing standards and good practice on the Second and Third Respondents."
To address this issue the court explored whether "It may well be that, given the particular issues involved, additional safeguards should be built into the clinical decision making, for example by a requirement for an independent second opinion. Any such requirement is a matter for the regulatory and oversight bodies and may be a matter considered by the Cass Review. My view is that this is likely to be a better safeguard for the very vulnerable children concerned rather than removing the ability in law of the parents giving consent. The clinical expert who gave the second opinion could then have a role in advising whether or not the particular case should be brought to Court.

2. Secondly, the court was satisfied that "The pressure on parents to give consent is something that all the clinicians concerned are likely to be fully alive to. Ms Morris submitted that GIDS was very much aware of the issue, and that considerable efforts were made to ensure that there was a family-based range of consultations and that parents saw clinicians in private as well as with their children. If the clinicians, or indeed any one of them, is concerned that the parents are being pressured to give consent, then I have no doubt such a case should be brought to Court."

Hence, depending on the circumstances, particular 'fact specific' cases regarding the administration of BPs may still find their way to court, but not by reason of BPs being in a special category, if such a thing exists, requiring reference to the court per se.

Case summary by Barry McAlinden, Barrister, Field Court Chambers

For full case summary please see BAILII