Applying Gillick at the Tavistock

The past year has seen a dizzying series of legal decisions about young people’s capacity to consent to puberty blocking drugs for gender dysphoria at the Tavistock Gender Identity Development Service (GIDS). In December 2020, the GIDS’ consent procedures for under 16’s were overturned via a judicial review brought by Keira Bell, a former patient. In March 2021, one of the judges in the original case then issued an interim judgement. This permitted puberty blockers to be prescribed, but only where there was parental consent as well as consent by the young person under 16. (This might well be termed ‘Gillick plus’). In September 2021, the Court of Appeal overturned the first decision. It also ruled that puberty blockers could be prescribed for young people under 16 with their consent, together with parental consent (Bell v Tavistock [2021]). This second part of my article explores the background to the original court decision, the criticisms made of the therapy model at the Tavistock GIDS, and the key problems left unresolved by the latest court decision. This latest decision is now potentially under further appeal to the Supreme Court. 

Tavistock: Round one

In the original Tavistock case in December 2020, the court carefully focused on how young people gave their consent to puberty blockers. In England and Wales, young people aged 16-17 years are able to consent to most forms of medical treatment under s.8, Family Law Reform Act 1969. The original Gillick case in 1985 addressed the issue of the capacity of young people under 16 years to consent to medical treatment (Gillick v Norfolk AHA [1985]). It determined that young people under 16 could consent, without requiring parental knowledge or consent, if they demonstrated ‘sufficient understanding’ of the treatment and its likely consequences. (For a more detailed discussion, see Daniels and Jenkins, 2010).

In December 2020, the judicial review heavily criticised practice at the Tavistock GIDS. In particular, the judges focused on procedures for obtaining the consent of young people under 16 to being prescribed puberty blocking drugs. These criticisms were made on a number of separate, but interlocking, grounds. First, young people under 16 were consenting not only to puberty blockers (Stage 1 of their treatment), but also, by implication, to cross-sex hormones (Stage 2), which followed on in the vast majority of cases from age 16. Rather than being required to consent to just one form of treatment, young people were actually consenting to a much longer, medically complex procedure. This was rather like an escalator, as interconnected stages of one clinical pathway.

Second, the judges ruled that this consent required a very high level of understanding, which most young people under 16 would be unlikely to achieve. This was due to the complexity and indeterminacy of the treatment, and their own limited emotional and cognitive ability to anticipate their own interests for their longer-term future.

The limits to Gillick?

The court decision threw a harsh light on the GIDS’ approach to obtaining consent for puberty blockers. Overall, in true post-modernist or Foucauldian ethos, the GIDS approach to obtaining consent seemed to stress the permissive element of Gillick, rather than its protective function. It appeared to lack a wider sense of the very real and well-established limits and boundaries to adolescent autonomy, which have been previously set in place by the courts regarding medical decision-making. In this respect, any standard textbook on medical ethics could easily provide a list of cases where adolescent decisions about medical treatment have been over-turned by the courts (Mason and Laurie, 2013). These include a 14 year-old refusing to take anti-psychotic medication, a 16 year-old with anorexia refusing to be moved to a clinic for eating disorders, a 15 year old refusing a heart transplant, and a raft of decisions regarding Jehovah’s Witnesses, aged 14, 15 and 17, respectively, overturning their decisions to refuse a blood transfusion on religious grounds. These cases mostly involve the young person’s refusalof essential, life-saving medical treatment. Still, even the first example above on its own, should perhaps have given the legal advisers and medical ethicists at the GIDS some element of doubt regarding the robustness claimed for their consent process. 

Puberty blockers (PBs): What exactly are young people consenting to?

Besides the critical question of how to assess young people’s capacity to consent, there is the further issue of what exactly young people (and their parents) are consenting to in the form of puberty blockers? The technical term for puberty blockers is gonadatrophin (GnRH) releasing hormone analogues. Puberty blockers delay the growth of secondary sexual characteristics. It was claimed by the GIDS that this permitted space and time for further assessment and discussion about progression to cross-sex hormones at 16, and potentially, to gender reassignment surgery.

A secondary rationale was that the use of puberty blockers would decrease young people’s levels of distress at undergoing the unwanted physiological changes associated with the wrong kind of puberty. In itself, this is an unusual rationale for a radical medical intervention. If unwanted puberty produces increased anxiety and depression in young patients, then surely this could be more appropriately addressed through psychological therapies, psychotropic medication and safety plans to reduce the risk of self-harm or suicide? In any event, a NICE review has found that this intended effect, i.e. reducing anxiety, was not borne out by the available evidence.

NICE review of research into puberty blockers

The NICE evidence review (2020) looked at nine observational studies, given that no randomised controlled trials, normally the gold standard for medical evidence, were available. This review considered the impact of GnRH analogues on gender dysphoria, mental health and quality of life. The quality of evidence for these outcomes was assessed as being of very low certainty. While treatment with GnRH analogues may reduce depression, it did not affect anger, anxiety, or quality of life. However, the review did produce findings about the importance of physiological birth sex. For example, de Vries et al. (2011) (n: 70) found that the impact of GnHR analogues on mental health (depression, anger and anxiety) may differ according to sex. Birth females had statistically significantly greater levels of anger and anxiety than males, at both baseline and follow up. This finding has particular relevance, given that by 2019, 76% of referrals to the GIDS were birth females (Bell v Tavistock [2020]. Hence birth sex, as an enduring physiological factor, appears to trump gender identity preference, in this respect. Overall, NICE has found little evidence to support the claim that GnHR analogues reduced emotional distress amongst young people with gender dysphoria. This finding, in turn, has undermined a central plank of the GIDS’ continuing rationale for prescribing puberty blockers.

The Tavi: Failure of affirmative therapy as a model of care

Shortly after the court case in December 2020, the GIDS was subject to an investigation by the Care Quality Commission (CQC). This followed concerns apparently raised by the outgoing Children’s Commissioner, Anne Longfield, and healthcare professionals, some from the Tavistock itself. The CQC produced a damning report on the GIDS, covering clinical practice and governance, safeguarding procedures and assessments of capacity to consent to treatment. The CQC found lengthy waiting lists, with 4,600 young people waiting for the service, inconsistent liaison and safeguarding practices, and pervasive failures, in terms of clinical assessments and recording of decision-making. The GIDS’ performance was ranked as inadequate as a result.

The report paints a picture of an organisation in disarray, with bitter conflicts between staff groups, and a lack of clarity regarding its purpose and methods of work. Major shortcomings in basic record-keeping had been acidly noted by the judges in the original Tavistock case. This was further evidenced by CQC comments on assessment and recording:

“Records of sessions with young people and their parents were often simply descriptions of discussions that had taken place. They did not include any analysis, structured assessment, professional curiosity or clinical decision making” (CQC, 2021:             23).

Gender identity affirmative therapy at the GIDS

The CQC makes a number of hard-hitting criticisms, but without offering any analysis or context. Reading the report feels rather akin to playing Cluedo without any clues, or watching Scandi Noir without the benefit of subtitles. It seems fairly clear now that the music to this masqued ball was, of course, the GIDS’ adoption of a model of gender identity affirmative therapy (Evans 2020; Wren 2019). The dominant emphasis within this therapy was presumably on simply affirming the young patients’ preferred gender identity. If this was the central (and possibly sole) rationale for therapeutic practice, then painstaking assessment, e.g. of co-morbid conditions, such as depression, trauma, or abuse, might well be considered to be unnecessary.

It is tempting to see the unfolding events at the GIDS as a completely unprecedented and unique episode in an emerging gender war. It is much more sobering to view them as fitting into a pre-existing template of mismanagement and misperception of young people’s rights. Tim Bond, writing about the Mid-Staffordshire NHS Foundation Trust, found that “there was an organisational culture of fear or secrecy that silenced or ignored any concerns” (Bond, 2015: 9). He posed a series of uncomfortable questions regarding such institutional failures of care, which now seem very timely and relevant to the GIDS.

• “What sort of evidence about the service would not be collected or would be ignored?
• What would be equivalent poor management or leadership of a service?” (2015: 9). 

The court judgement and CQC Reports begin to suggest some uneasy parallels here, in terms of gaps in clinical governance at the GIDS, and structural problems within management.

Use of therapeutic labels

Previous, now largely forgotten, examples of abusive treatment of children and young people in residential social work care can be found in the cases of the Pindown and Beck regimes of the 1970’s and 1980’s. The Pindown regime applied “an ill digested understanding of behavioural psychology”, (Levy and Kahan, 1991: 127). This model was mislabelled as ‘negative behaviour modification’, relying on elements of isolation, humiliation and confrontation. “Pindown provides a salutary example of the dressing up of oppressive control in the rhetorical garb of therapy, and of the capacity of that rhetoric to convince those running the regime that what they were doing was in the best interests of the children” (Fennell, 1992: 312).

In the second example, the late Frank Beck, a former Royal Marine, applied a combination of so-called ‘regression therapy’, consisting of  ‘reparenting’ distressed teenagers with the “bizarre use of the paraphernalia of babyhood”, such as nappies and baby bottles (Kirkwood, 1993: 62). This provided a cover for the systematic harassment, humiliation and sexual abuse of children entrusted to his care (D’Arcy and Gosling, 1998). Both the Pindown and the Beck regimes were successfully disguised, via their presentation as apparently legitimate therapeutic models, systematically applied by mainly junior staff and enthusiastically endorsed by senior management (Jenkins, 2007: 166-7). 

Institutional failures of care

The Tavistock GIDS represents a concerning model of treatment of young people in a parallel, if unusual format. This model of care rests on an apparent over-estimation of young people’s ability to truly comprehend and consent to longer-term health risks, a weak and strongly contested evidence base, and the adoption of an untested therapeutic approach. All three examples, Pindown, the Beck regime and now the GIDS, have applied problematic therapeutic models, namely negative behaviour modification, regression therapy, and now gender identity affirmative therapy. In the first two instances, these anecdotal models of therapy functioned as a legitimising cover for abusive practice. All three cases, however, represent a similar overall pattern, namely “a combination of failures in regulation, leadership, and management, and by the individual service providers” (Bond, 2015: 17). Minimising the safeguards required for the assessment of Gillick-competence has arguably played a crucial role in the debacle at the GIDS. The Tavistock case now opens up the potential prospect of a future wave of litigation against healthcare professionals involved in facilitating medical transition for children and young people.

Detour: Bypassing Gillick via the private sector

The court ruling in the Tavistock case called a temporary halt to NHS prescribing of puberty-blockers for young people under the age of 16. However, it was still apparently possible to bypass requirements for obtaining consent by the young person under 16, or their parent, by going via the private sector. In February, the Daily Telegraph ran two reports on GenderGP, a clinic for transgender patients run by Dr Helen Webberley. A reporter, posing as a 15 year old girl, was able to obtain a prescription for testosterone gel (or ‘T’) after just two Skype appointments with counsellors and one Skype appointment with a doctor at its online clinic. GenderGP reportedly offers a gender identity affirming model of care, based on assessing ‘stage, not age’. In a further case, reporters, posing as parents of a 12-year old boy, were reportedly informed by the lead counsellor at GenderGP, that the 12 year old could start on puberty blockers within six weeks, and begin taking cross-sex hormones within seven and a half months of starting with the clinic (TIT, 2021a, 20121b).

It is also even more concerning that a senior counsellor at GenderGP seemed unaware of the particular significance of the Gillick case for consent by under-16’s, and even of the effect of the first Tavistock decision itself. Somewhat ironically, given the remit of the discussion on Youtube, namely on, “How is care for transgender youth impacted by the Tavistock and Portman ruling?”, the senior counsellor seemed unaware of the very existence of Gillick. 

Hence, a senior counsellor at GenderGP:

“What do we even mean by ‘able to give consent’? I’m not actually even sure that there is a litmus test that says ‘you can’ or ‘you can’t’. If you’re saying ‘you can’t give consent, well, how can you prove that? How could you prove somebody isn’t able to give consent? It just feels like a black hole!” (GenderGP, 2020: 11.23-24) (PJ: emphasis added).

Of course, the crucial point here, for our purposes, is that there is, most definitely, a litmus test in law for assessing capacity to consent for young people under the age of 16. It happens to be called: Gillick competence.

Back to the Appeal court judgement and unresolved issues

The Appeal Court decision might have solved one legal problem, by relying on what might be called ‘Gillick plus’, i.e. parental consent plus consent by the young person under 16. However, it may have created (or at least revealed) two further problems, which are unlikely to go away any time soon. The first of these issues relates to clarifying the lower age limits for Gillick competence to apply; the second relates to the role of family conflict in the process of establishing parental consent.

Clarifying the lower age limits for Gillick?

The issue of the age limits for Gillick competence has always been a structural weakness of the reasoning behind the original case in 1985. According to Lord Scarman, “…the rights of parents and children in this sensitive area are better protected by the professional standards of the medical profession than by a priori legal lines of division between capacity to consent since any such general dividing line is sure to produce in some cases injustice, hardship and injury to health”. Furthermore, a minor’s capacity to consent “… is not to be determined by reference to any judicially fixed age limit”, “…save where statute otherwise provides.” (Gillick v West Norfolk AHA [1985]).

Translated, this appears to mean that judges will generally defer to doctors in assessing levels of competence. But at precisely what age might a child under 16 be deemed to lack ‘sufficient understanding’? (Gillick v Norfolk AHA [1985]).  The original Tavistock decision established that the GIDS fully accepted that a child of seven years would definitely lack capacity to consent to the prescribing of puberty blockers for precocious puberty. However, the GIDS’ own data revealed that 95 children under 16 had been referred for puberty blockers, including three aged ten or eleven years; 13 aged 12 years; ten aged 13 years; 24 aged 14 years and 45 aged 15 years. So, exactly what must have happened during the ages of eight and nine years which meant that a child of ten years could now be judged to have capacity? How was this assessed? Maybe it is time to review, and perhaps legislate, on the diminishing usefulness of Gillick as a legal yardstick for determining capacity, particularly for the lower age range?

Family tensions in the process of arriving at parental consent

The ‘Gillick plus’ requirement for consent (i.e. that of the young person under 16 plus parents), represents a ‘belt and braces’ solution to the vexed problem of providing legal authority for prescribing puberty blockers (PBs). This solution was first advanced in the interim judgement in March 2021. This latter decision then inadvertently opened the door to unravelling the decision of the original case back in December 2020. In the interim judgement, the judge acknowledged there might be concern about “the pressure that may be placed by the children in issue upon their parents. Where a child has Gender Dysphoria and is convinced s/he should be prescribed PBs, it is likely to be very hard for parents to refuse to consent” (AB v CD and Ors [2021]).

The judge is right. This reliance on parents for their consent catapults the messy business of family dynamics back into the centre stage of judicial decision-making. Parental decision-making may already have become very complex here, with tension between parents heightened by background awareness of the reportedly heightened risk of trans young people’s suicide. The pressures on an unconvinced parent to provide consent could become almost overwhelming. Alternatively, they may force a parent to veto the decision and return to court for a final resolution. Either way, Littman’s controversial research (2018) on the family dynamics of rapid onset gender dysphoria (referred to in Part 1 of this article) will acquire an added relevance and urgency, in this, the age of ongoing gender wars.

References

Bond, T. (2015) “New challenges for professional ethics and good practice guidelines for counsellors, psychotherapists and psychologists”, pp. 7-18. In Tribe, R. and Morrissey, J. (Eds) Handbook of Professional and Ethical Practice for Psychologists, Counsellors and Psychotherapists. Second edition. Hove: Routledge.

Care Quality Commission (CQC) (2021) Tavistock and Portman Clinic Inspection Report. https://www.cqc.org.uk/provider/RNK/inspection-summary#genderis   

D’Arcy, M. and Gosling, P. (1998) Abuse of trust: Frank Beck and the Leicestershire Children’s Homes Scandal. Bowerdean: London.

Daniels, D. and Jenkins, P. (2010) Therapy with children: Children’s rights, confidentiality and the law. Second edition. London: Sage.

de Vries A, Steensma T, Doreleijers T, et al. (2011) Puberty suppression in adolescents with gender identity disorder: a prospective follow-up study. The Journal of Sexual Medicine. 8(8): 2276-83.

https://pubmed.ncbi.nlm.nih.gov/20646177/

Evans, M. (2020) Freedom to think: the need for thorough assessment and treatment of gender dysphoric children. British Journal of Psychiatry Bulletin. Published online 21^st July: https://www.cambridge.org/core/journals/bjpsych-bulletin/article/freedom-to-think-the-need-for-thorough-assessment-and-treatment-of-gender-dysphoric-children/F4B7F5CAFC0D0BE9FF3C7886BA6E904B

Fennell, P. (1992) “Informal compulsion: The psychiatric treatment of juveniles under common law”, Journal of Social Welfare and Family Law, 4: 311-333.

Gender GP (2020) “How is care for transgender youth impacted by the Tavistock and Portman ruling?” 2^nd December. https://www.gendergp.com/trans-youth-healthcare-impacted-by-tavistock-portman-ruling-gendergp-livestream/ or https://www.youtube.com/watch?v=fvQFNl1wJs0

Jenkins, P. (2007) Counselling, psychotherapy and the law. Second edition. London: Sage.

Kirkwood, A. (1993) The Leicestershire Inquiry 1992. Leicester County Council: Derby.

Levy, A. and Kahan, B. (1991) The Pindown experience and the protection of children: The Report of the Staffordshire Child Care Enquiry 1990. Staffordshire County Council: Stafford.

Littman, L. (2018) Parent reports of adolescents and young adults perceived to show signs of a rapid onset of gender dysphoria. PlosOne, 13(8), e 0202330 https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0202330

Mason, J.K. and Laurie, G.T. (2013) Mason and McCall Smith’s Law and Medical Ethics. Ninth edition. Oxford: Oxford University Press.

National Institute for Health and Clinical Excellence (NICE) (2020) Evidence review: Gonadotrophin releasing hormone analogues for children and adolescents with gender dysphoria.  https://www.evidence.nhs.uk/document?id=2334888&returnUrl=search%3fq%3dtransgender%26s%3dDate

Telegraph Investigations Team (2021a) “Online clinic prescribes sex-change drugs to children without parents’ consent”; “How children can order life-altering transgender drugs from the bedroom”, Daily Telegraph, 27th February. 

https://www.telegraph.co.uk/news/2021/02/28/exclusive-online-clinic-willing-prescribe-sex-change-drugs-children/

Telegraph Investigations Team (2021b) “No doctor’s meeting for sex-change drugs”, Daily Telegraph, 1st March.

https://www.telegraph.co.uk/news/2021/02/26/children-can-order-life-altering-transgender-drugs-bedroom/

Wren, B. (2019) Ethical issues in the provision of medical interventions for gender diverse children and adolescents”, Association for Child and Adolescent Mental Health, 14th June (Powerpoint presentation). https://www.acamh.org/app/uploads/2015/06/16_05_Dr_Bernadette_Wren.pdf

Legal references

AB v CD and Ors [2021] EWHC 741 (Fam) https://www.bailii.org/ew/cases/EWHC/Fam/2021/741.html

Gillick v. West Norfolk AHA [1985] 3 All ER 402; [1986] AC 112 https://www.bailii.org/uk/cases/UKHL/1985/7.html

R (Quincy Bell) and A v. Tavistock and Portman NHS and others [2020] EWHC 3274 https://www.judiciary.uk/judgments/r-on-the-application-of-quincy-bell-and-a-v-tavistock-and-portman-nhs-trust-and-others/

R (Quincy Bell) and A v. Tavistock and Portman NHS and others [2021] EWHC Civ 1363 https://judiciary.uk/wp-content/uploads/2021/09/Bell-v-Tavistock-judgment-170921.pdf

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By Peter Jenkins who is a UK-based counsellor, supervisor, trainer and researcher. He has been a member of both the BACP Professional Conduct Committee and the UKCP Ethics Committee. He has published a number of books on legal aspects of therapy, including Professional Practice in Counselling and Psychotherapy: Ethics and the Law (Sage, 2017). His Sage website provides access to a range of free resources on legal and ethical issues in counselling and psychotherapy, including video clips, and articles for download: https://us.sagepub.com/en-us/nam/author/peter-jenkins