Summary of recent court rulings
Over the last year there have been three court rulings about consent to the use of hormone blockers:
- In December 2020, three judges in the High Court ruled that it is doubtful that children under the age of 16 years are able to consent to treatment with hormone blockers.
- In March 2021, the Family Division of the High Court ruled that parental consent may form a legal basis to prescribe hormone blockers to children under-16 and suggested it may be appropriate to consider additional safeguards in the clinical decision-making process.
- In September 2021, the December ruling was overturned by the Court of Appeal.
The most recent ruling confirms that children under the age of 16 may, depending on their presentation, be assessed as legally competent to give informed consent – without the need to obtain a best interest order from the court.
For those aged 16 and 17 the courts have maintained a position that they are presumed to be able to give legally effective consent to treatment for hormone blockers or cross-sex hormones.
Assuring a safe and robust decision-making process for hormone blockers
Healthcare decisions always involve weighing up the potential benefits and risks of treatment. For hormone blockers, that includes reflecting on the limited scientific evidence base for their use in this context (see NICE evidence review). This underlines the importance of patients, their families or carers, and clinicians having full information when making decisions and in ensuring the Gender Identity Development Service (GIDS) follows a safe and robust clinical process.
Given this, prior to the most recent court ruling measures were already in place to help provide assurance that the clinical decision-making process is robust and to ensure patients and their parents are fully informed before they give consent to a referral by GIDS for hormone blockers. Since early 2021, patients at the GIDS undergo a revised and thorough clinical review to ensure a patient is fully informed during decisions and to help clinicians assess their suitability for referral to the endocrinology clinic. Further information about the process is available on the GIDS website.
Where a patient, their parent(s) or carer, and clinicians are of the view that referral to an endocrinology clinic for hormone blockers is appropriate, the GIDS’ decision-making process for under-16s will be reviewed by an independent Multi-Professional Review Group which was established in August 2021.
Multi-Professional Review Group (MPRG)
The MPRG provides assurance about the Children and Young People’s Gender Identity Development Service decision-making process. The role of the group is not to endorse or refuse treatment but to ensure all of the necessary steps have been taken, and all relevant information has been provided to the patient and their parents/carers. Patients do not need to meet the review group. The template form the Group uses to assess decisions is available here.
The MPRG is established on an interim basis and is chaired by Professor Judith Ellis OBE – previously Chief Nurse at Great Ormond Street Hospital for Children and a previous Chief Executive of the Royal College of Paediatrics and Child Health. The group is meeting regularly.
There is no requirement on GIDS to submit cases to the MPRG in regard to 16 and 17 year olds.
The MPRG will also retrospectively audit a sample of decisions at the related endocrine clinic for confidence in their processes.
In September 2020, prior to any court rulings, NHS England commissioned an independent review led by Dr Hilary Cass to set out wide-ranging recommendations including on the use of puberty blockers. As part of her review, Dr Cass has commissioned further research, including a broad literature review, to complement the evidence reviews into puberty blockers and cross-sex hormones previously published by NICE. NHS England looks forward to receiving Dr Cass’ proposals later next year. The latest information about her review is available here: cass.independent-review.uk