Update following recent court rulings on puberty blockers and consent

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 puberty blockers. This ruling is subject to an appeal which is due to be heard in June.

More recently, on 26 March 2021, the Family Division of the High Court ruled that parental consent may form a legal basis to prescribe puberty blockers to children under 16 years while noting additional safeguards be considered. The judgment of the Administrative Court, accepted by the Family Division, was that the use of puberty blockers to treat gender dysphoria in children should be considered experimental given the limited evidence of efficacy or long-term effects of the treatment.

Both rulings apply to the Gender Identity Development Service (GIDS) for children and young people which is provided by the Tavistock and Portman NHS Foundation Trust.

NHS England and Improvement (NHSEI) was not a party to the Family Division case and historically the Tavistock’s GIDS has not relied on parental consent in referring children for treatment with puberty blockers. Therefore the NHS had to carefully review the judgment following its publication, including the Court’s mention in paragraphs 123 and 124 of the concluding remarks of the potential benefit of additional safeguards when making clinical decisions about puberty blockers for under-16s. This suggestion is also important in the wider context of the recent significant concerns raised by the Care Quality Commission in their inspection of the Tavistock’s GIDS service, and the evidence review on puberty blockers carried out by the National Institute for Health and Care Excellence (NICE).

The clinical approach for supporting children and young people who are looked after at the Tavistock and related providers should be safe, effective and supported by the available evidence. The below measures are therefore on an interim basis while the NHS awaits the outcome of Dr Hilary Cass’ independent review into gender identity services for children and young people, which will inform the long-term approach to these services.

Existing patients

For children under 16 who are already being prescribed puberty blockers, as recommended/commenced by the Tavistock’s GIDS, and consistent with the recent court judgment, parental consent may be relied upon where:

  • there is full alignment and agreement between the child, parent(s) and the GIDS team that continued prescribing is in the child’s best interests; and
  • the process resulting in the recommendation to continue prescribing has been considered and supported by a new and independent multi-professional review group (see below)

The on-going clinical reviews of existing patients, announced by the Tavistock last December, will continue and will be used to confirm that the patient, parent(s) and clinicians remain aligned and agreed on the use of puberty blockers.

Should the review group have any doubts about whether the decision-making process was robust, the opportunity to seek a best interest’s decision from the court will remain available to the Tavistock.

Treatment will not be withdrawn for existing patients until the outcome of the review group’s view or further consideration by the court, if pursued, is known.

New patients

In December, the Tavistock took the decision to pause new referrals into the GIDS’ endocrinology service while it carried out clinical reviews of existing patients.  Once the Tavistock decides to resume making new referrals into the endocrine clinics, the interim process will follow the new process for existing patients as described above.

Until the new review group becomes operational, the absolute requirement to seek a best interests order from the court before treatment is commenced will remain in place.

Before the most recent ruling the NHS was already looking at what more support it can provide to clinicians caring for patients yet to commence treatment to ensure that their wider clinical needs continue to be met. We will update stakeholders in more detail about this support to clinicians shortly.

Role of independent multi-professional review group

As an interim measure, and in direct response to the Court’s suggestion that additional safeguards may be warranted, a new independent multidisciplinary professional review group will be established to confirm decision-making has followed a robust process.

This group will be comprised of health and care professionals with expertise in child development, neurodevelopment and mental health, assessing capacity and consent, and safeguarding processes. The review group will ensure:

  • the Tavistock’s GIDS has carried out an enhanced clinical review of each patient;
  • there has been a robust process for providing parental consent and child assent;
  • adequate information, including on the risks and benefits of puberty blockers and on the limited available evidence such that the court has described the treatment as ‘experimental’, has been provided to both patient and parent(s);
  • the clinical process for forming a prescribing recommendation followed good practice guidelines;
  • any relevant needs of the patient, and what this may mean for their wider healthcare, has been fully explored.

The review group’s role is not to endorse or refuse treatment – it is there to ensure appropriate decision-making processes have been followed, particularly with regard to assessing and supporting consent to treatment. Given the court rulings, the review group’s role does not extend to patients aged 16 and over.

Where the review group is content with the decision-making process, then there would not be a requirement from GIDS clinicians to seek a best interests decision from the court, but they could still do so.

Where the review group raises concerns about the decision-making process, then the Tavistock will need to seek a best interests decision from the court in order to confirm the commencement or continuation of treatment.

We will keep stakeholders updated as this interim review group develops and we will publish the terms of reference and composition of the review group in due course.