Can life-changing decisions be left to children? Janice Turner in The Times 10.10.20

The original article is here.

When Victoria Gillick, a Roman Catholic mother of ten, came across a government circular advocating under-16s be prescribed contraception without parental consent, she was outraged. In 1983, her battle to stop doctors “encouraging children to be promiscuous” landed in the High Court. Mrs Gillick lost, but her name endures.

“Gillick competency” became the legal test, honed by precedent, to decide whether minors can agree to medical procedures. A child must not only have “the ability to understand the nature of the proposed treatment . . . but a full understanding . . . of the consequences of the treatment”, while possessing “the necessary experience of life” to make a decision.

This week, the Gillick test was central to a judicial review launched by Keira Bell against the Tavistock and Portman NHS Foundation Trust’s GIDS (gender identity development service) clinic. As a girl Ms Bell, now 23, was a tomboy; as a distressed teen she read online trans forums which led her to believe she was really a boy. GIDS, she said, fuelled that “fantasy”, prescribing GnRH puberty-blocking drugs after just three one-hour appointments, then male hormones. Later she had a double mastectomy.

Now, she has “detransitioned” to live as a woman but is left with an irreversibly deep voice, facial hair and impaired sexual function. “I made a brash decision as a teenager trying to find confidence and happiness,” she said. “Except now the rest of my life will be negatively affected.”

The question before the High Court is whether Keira, or any young person, has capacity to consent to puberty-blockers. Although described as a fully reversible “pause button” to relieve the distress of gender dysphoria as a child wrestles with identity, almost every GnRH case proceeds to cross-sex hormones. Puberty-blockers have been prescribed “off label” for 30 years, with scant research. The Tavistock is yet to publish an “early intervention study” it began in 2011 and, when asked this week by Lord Justice Lewis why, claimed it had been delayed by the Covid pandemic.

We do know that GnRH drugs send natal females into menopause, with hot flushes and complications that can lead to hysterectomy. A child may have poorer cognitive function, lower bone density and reduced height. While friends begin romantic relationships, a GnRH teen will be frozen, Peter Pan-like, often for years. Crucially, sexual function and future fertility may be lost.

Of 161 young people referred by GIDS for such drugs in 2019-20, half were under 16, a quarter under 14 and three were only ten. Blockers are prescribed from when a girl’s breasts begin to grow. A child who starts this early and proceeds to cross-sex hormones is sterile, since periods haven’t begun.

It is a fairytale, said Keira Bell’s QC, Jeremy Hyam, that a child could have Gillick competency to take such drugs. Referring to his own daughter, who like most pre-teens recoils at kissing scenes on TV, he asked how you “have an age-appropriate discussion about loss of orgasm” with a 13-year-old. Questioned about this, the Tavistock’s QC, Fenella Morris, replied that many adults are happily asexual. But how, asked the judge, can you predict a particular 11-year-old will turn out this way? The QC argued that Tavistock patients think more about sex and identity than ordinary children, and an 11-year-old “who did not know what an orgasm or erection was would not be deemed capable of consent”.

What of fertility? The parental urge often does not kick in until your thirties: any young woman demanding to be sterilised will struggle to find a doctor to agree. Yet even a Tavistock patient cited as having benefited from puberty-blockers said that at 16 he “still did not know” if he wanted children, while a 13-year-old said: “I’m sure future me will be fine with adopting.”

“Future me” is the heart of the debate. A child can understand that contraception prevents a baby or that abortion ends a pregnancy. “Future me” may look back at such things ruefully. But what if your younger self shut doors for ever? Keira Bell wishes she had been “challenged on the claims I was making for myself”. She was just a teenager, she says, so why was she treated as an adult? Her judicial review demands that under-18s be prescribed puberty-blockers only by court order. With 16 to 18-year-olds, this seems a leap. But the High Court must decide if any under-16 can have Gillick competency over their own sterilisation and sexual dysfunction.

The Tavistock argues that it would be unfair to deny young people bodily autonomy over one type of treatment and not others. But “a high level of competence” is required, said Mr Hyam, “for a high level of decision” and “autonomy without comprehension is no autonomy at all”.

If Keira Bell’s case succeeds, it will have global implications, especially for countries such as New Zealand and Australia, with similar Gillick tests. It will also open up medical negligence claims against GIDS. The fallout from an unexamined global rise in young women transitioning — 75 per cent of Tavistock referrals are now female — is a growing number of detransitioners like Ms Bell.

Later this year Dr Hilary Cass’s review into the Tavistock will examine the ethics and efficacy of puberty-blockers. But for now the unintentional legacy of the prudish Mrs Gillick is the legal question: can a child consent to forgo capacity for adult sexual pleasure, before it has even begun?

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