NHS Makes Child Gender Identity Service Changes After High Court Ruling

Becky McCall

December 04, 2020

Editor's note, 4 December 2020: This article was updated with the latest developments and comment.

NHS England has made amendments to service specification for the gender identity development service for children and adolescents, following a High Court judgment  on Tuesday. Three judges ruled children aged 13 or under, seeking help for gender dysphoria are "highly unlikely… [to] be competent to give consent to the administration of puberty blockers," and that it was ‘very doubtful’ that 14 and 15 year-olds could either.

England’s only gender identity service is provided by the Gender Identity Development Service (GIDS), at the Tavistock and Portman NHS Trust, London, and its sister service at the Leeds and York Partnership NHS Foundation Trust.

In those young people over 16 years, the law presumes that they have the ability to consent to medical treatment. However, the court cautioned that given the long-term consequences, and "innovative and experimental" nature of puberty blockers and cross sex hormones, "Clinicians may well regard these as cases where the authorisation of the court should be sought before starting treatment with puberty blocking drugs."

Now, the NHS England service amendment states that, "Patients under 16 years must not be referred by the Gender Identity Development Service to paediatric endocrinology clinics for puberty blockers unless a 'best interests' order has been made by the Court for the individual in question."

They also state that, "The Gender Identity Development Service must carry out a full clinical review of each patient who is aged below 16 years and who has been receiving puberty blockers as a response to a referral by the Gender Identity Development Service to an endocrine clinic…" The senior assessor must make application to the court if they decide the child should continue to receive hormone blockers.

Finally, they add that the "…Service must ensure that appropriate psychosocial support and psychological therapies are available to patients who are removed from puberty blockers."
 

Case Reviews

Susan Evans

"It might emerge that some children who have been given treatment with very few counselling sessions, or perhaps they are autistic but there is no reference to this in their notes then it will need to go to court,” said Susan Evans, who was a witness in the case and a psychotherapist who resigned from GIDS because she felt so 'deeply concerned' about the fast-tracking of young people into medical treatment.  

Ms Evans also pointed out that a lot of children have already been referred to adult services prior to turning 18 years of age, so adult gender identity services will also need to conduct a review of relevant patients. “If a parent questioned consent, there could also be reforms there.” 

Lastly, Ms Evans asks what NHS England put in place for these children and their families.  “Have they planned ahead and developed training packages for staff in the regions who will now need to work with and support the children and their families? They have known this could happen.”

Judicial Review

Keira Bell

The judicial review was sought by Keira Bell, 23, and a Mrs A, the mother of a 16-year-old autistic girl currently on the waiting list for treatment at the Tavistock, which is the only NHS centre providing treatment for gender dysphoria in young people in England.  Ms Bell received transitioning treatment at the Tavistock when she was 16 but has since detransitioned.

She believes she should have been challenged more about her decision to receive transitioning treatment, and has concerns for other young people who are vulnerable and need protection from transitioning without fully understanding the consequences.
Speaking outside the High Court Ms Bell said she was "delighted" with the ruling. "This judgment is not political, it's about protecting vulnerable children. I'm delighted to see that common sense has prevailed."

Together, in bringing the case, the women questioned the prescribing of puberty-suppressing drugs to children who experience gender dysphoria. This particular case focussed on identifying the circumstances in which a child was legally competent to give valid consent to medical treatment for gender dysphoria. It was not concerned with deciding whether there were benefits or not in treating children with puberty blocking drugs.
 

'Clarity'

Ms Evans told Medscape News UK that, “I’m pleased the children receiving the treatment as it stood will not be treated as poorly as they have been, and that the court has examined the evidence from the Tavistock, from UCLH, and from us. The clarity of the verdict is brilliant.”

The Tavistock is seeking to appeal against the judgment. In a statement released following the ruling, the Tavistock says it is, "disappointed by today's judgment and we understand that the outcome is likely to cause anxiety for patients and their families.

"Our first duty is to our patients, particularly those currently receiving hormone blocking treatment and we are working… to provide support for patients concerned about the impact on their care."

According to the Tavistock, the Court has ruled that there will be a stay on implementation of its judgment until the 22 December or the determination of any appeal. "This will give us a chance to work through the specific implications of the judgment for different patient groups …We will not be making new referrals to endocrinology until we have more clarity."

In a tweet, Transgender Trends, a group of parents who question the medical transition of children, wrote: "A landmark judgement in the High Court today which will have reverberations around the world. A fantastic win for Keira Bell, a historic day."

A joint statement from Barnardo's, NSPCC, National Children’s Bureau and The Children’s Society released in response to the judgment acknowledges that: "Many trans children and young people feel lonely and isolated due to a lack of support, understanding, and acceptance. Denying them agency has the potential to compound this and can put them at high risk of mental illness and emotional distress, potentially affecting their long-term future.

"But we also know that with the right support from the adults in their lives, trans young people can lead happy and healthy childhoods."

Understanding Long-term Consequences of Medical Treatment

In their judgment, the judges state that, "there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy,’ and they continue by noting that, ‘the consequences of the treatment are highly complex and potentially lifelong and life changing in the most fundamental way imaginable."

Explaining procedures at GIDS, Dr Polly Carmichael, director of GIDS, provided a written statement noting that during patient consultations, "all efforts will be made to ensure that clients [children] are aware of the longer-term consequences of the endocrine treatments, including implications for fertility, and the decision of the competence of the client will be jointly made by the endocrine and psychological members of the Service’s integrated team."

The judge added that for fully informed consent (Gillick competence), the child would have to understand both the implications of taking puberty blockers but also the implications of progressing to cross-sex hormones. As such, in relation to puberty blockers, a child would need "to understand, retain and weigh up"…  "the immediate consequences of the treatment in physical and psychological terms; the fact that the vast majority… go on to cross-sex hormones and …on a pathway to much greater medical interventions," as well as potential surgery and its implications. They also highlighted the potential loss of fertility, impact on sexual function, future and life-long relationships; the unknown physical consequences of taking puberty blockers and an uncertain evidence base for the drugs.

Informed Consent

Ms Evans says there are eight factors that suggest a child understands informed consent including the consequences into adulthood. “The judges said that children need to understand the entire pathway of treatment from starting puberty blockers to moving to cross-sex hormones. It cannot be argued that starting the blocker is separate. Although a child may understand the concept of the loss of fertility for example, this is not the same as understanding how this will affect their adult life."

Regarding long-term evidence, the Tavistock started a research study in 2011, completed in 2019 that continues to remain in the peer-review process before publication, and as such, according to the Tavistock’s defence, was unavailable for the judicial review.

In October, at the hearing Jeremy Hyam QC, counsel for Ms Bell and Mrs A, noted that preliminary findings show that: "The suppression of hormones does not impact positively on the experience of gender dysphoria," and that "natal girls appeared to be more dissatisfied with their sex characteristics, and there was an increase in reporting of thoughts of self-harm or suicide by children in the study." Mr Hyam expressed his own dissatisfaction with the lack of publication of this GIDS study given its significance in the case.

Further details of the hearing in October, reported by Medscape UK can be found here.

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