Consent and Children: First Principles

This post is about the legal reasoning in the decision of the High Court in Bell v Tavistock. It is not about the appropriateness or effectiveness of the hormone therapy given to children that that case concerned. I have no competence in relation to the latter factual question. The purpose of this post is to as dispassionately as possible set down the relevant principles. I shall not seek to address all of the nonsense said about the case online. The conclusion is that although the result may be right, the reasoning of the court is not.

Our Bodies

Our bodies are our own. As an adult, I can consent to others doing things to my body that are not necessarily beneficial: an ear piercing, a tattoo, or the infliction of pain. If I consent, no wrong is committed.

Conversely, if I do not consent others cannot do things to my body even if they are beneficial. So, if I object on religious grounds to a blood transfusion, any attempt to force one upon me would be a battery. The law could then be used to order anyone who tried to stop.

Children

Children are different. A question arises as to when they can consent in the way that an adult can.

A child of, say, seven cannot validly consent to many of the things an adult can. So, a child cannot validly consent to having a tattoo, an ear piercing or the infliction of pain. There is nobody who can validly consent to these things on behalf of the child either. If the parent and child agree that it should have a face tattoo, it would be a battery to do so. The ear piercing of young children is a battery, regardless of the parents’ views.  A child is not a parent’s chattel.

If a child requires medical treatment (eg stitches in a gashed knee or a blood transfusion) and they cannot themselves consent (as a very young infant most obviously cannot) then their parent may do so on their behalf. If the parent withholds consent to beneficial treatment, as has happened in relation to those who object to blood transfusions on religious grounds, a court may instead act for the child.

For older children, a question may arise as to whether their consent suffices. So, the Gillick case concerned the prescription of contraception to under 16s. The parent, Mrs Gillick, argued that her consent was necessary. The court rejected this on the basis that the consent of a child with sufficient understanding sufficed.

Bell v Tavistock

Proceedings for judicial review were brought concerning the practice of Tavistock NHS Trust of prescribing puberty blockers to children who experience gender dysphoria. The claim was brought to stop the treatment.

From the first principles above, two issues arise, that need to be differentiated.

  1. Is the treatment in the best interests of the child?
  2. Does the child have the competence to consent to the treatment?

If the treatment is not in the child’s best interests, nobody can validly consent to it. Not parent, child or court. It is like a face tattoo.

If the treatment is in the best interests of the child, then a child with sufficient understanding should be able to consent without the consent of an adult. If they lack such understanding, and it is in their best interests, then as with a blood transfusion, a competent person who is responsible for them, usually a parent, can consent on their behalf.

In a case such as this, it is easy to confuse these two issues. Whether the treatment is, as a matter of objective fact, in the best interests of the child is dependent upon that child being able to make an informed choice about the life they wish to lead. If the child doesn’t wish the treatment, then (unlike with a blood transfusion) it is not in their best interests to proceed. If they do wish to have the treatment, the issue arises as to whether their assessment of their best interests is accurate. We all of us, adults and children, subsequently regret many of the decisions we make. To what extent are we able to trust that this child’s self-understanding is sufficient that we can be sufficiently certain that the treatment is in their best interests?

Reasoning

The court in Bell characterised the issue before it as follows

The court in this case was concerned with the legal requirements for obtaining consent for the carrying out of medical treatment. The court was not concerned with deciding whether there were benefits or disbenefits in treating children with gender dysphoria with puberty blocking drugs. ([3]of summary, see also [9] of judgment.)

In the light of the brief statement of first principles above, this is a mistake.

We can demonstrate the error in two ways.

First consider an extreme hypothetical where we are certain that the treatment is in the best interest of the child. Say the child is suicidal, has repeatedly tried to end his or her life, and has stated that if they are not stopped from proceeding on to puberty that they will kill themselves. Assume that we are certain, beyond peradventure, that this is true. Can consent to this treatment be given, by this child or by a competent adult on their behalf?

I suggest that the answer is plainly yes.

Second, if the issue were genuinely about consent, if we were certain that the treatment is  genuinely beneficial, then Gillick competent children should be able to consent to it, or competent adults should be able to do so on their behalf. But the conclusion of the judges is that it was “highly unlikely” that a child 13 or under could consent, and doubtful whether a child aged 14 or 15 could do so.

Why did the court think that children could not validly consent? Because of a potential lack of “understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child.” But these factors, if accepted, go to show that the child lacks the self understanding to assess whether the treatment is in their long term interests, and as a result makes us unable to conclude that it is in fact in their best interests.

Why?

If the court’s reasoning is, as I suggest, mistaken, why is this so?

The first reason is that this is the way the case was argued by counsel. Both sides argued the case on the basis that it was about capacity to consent.

The second reason, and perhaps the reason why the claimants put the claim in this way, is that capacity to consent is a legal issue for the courts and the law. A medical practitioner does not get to decide whether an 8 year old can consent to a blood transfusion. The law determines this question.

In determining a question of whether a medical treatment is beneficial, however, the courts place great weight on medical opinion. Judges are not experts in blood transfusions. This deference is not, however, absolute. In the context of liability for negligence, for example, it is no longer sufficient to show that a body of professional opinion supports a treatment. That body of opinion must be reasonable.  

Is it wrong?

Despite these criticisms, I am not certain that the result reached in Bell v Tavistock Trust is wrong. I urge those interested to read the case itself, and the court’s review of the evidence the Tavistock Trust relied upon to show the efficacy of the treatment. The court repeatedly states that the lack of data produced for good outcomes was “surprising”. The Tavistock Trust’s treatment of children in its care was, on my reading of these facts, shocking. The better reading of the result is that on the facts of the case the treatment being given was not in the child’s best interests.

That does not mean that this treatment may not sometimes be in the best interests of some children. Again, that factual question is not one I am competent to answer.

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