How old do you have to be to consent to your own healthcare?
September 17, 2021 2:43 PM   Subscribe

There is no fixed age for adulthood in England and Wales. At age 10 you have full criminal responsibility for your actions, at 14 you can get a job, at 16 you can change your name, at 18 you can buy alcohol, at 21 you can adopt a child. Since 1986 and the case of Gillick vs West Norfolk and Wisbech Area Health Authority (judgement) there has been no fixed age at which you can consent to your own healthcare treatment, overriding parental consent. Instead the competency to consent of a child under 16 is determined by the relevant treating physician on an individual basis, known as Gillick competence. Guidelines for its application were provided by in the judgement by Lord Fraser.

Gillick brought the case which began in 1982 in an attempt to prevent her daughter from accessing contraception without her own knowledge or consent and was unsuccessful. Gillick competence has already been ruled to apply in the case of abortion (R(Axon) v Secretary of State for Health). But in December 2020, Gillick competence was under threat when the High Court ruled in a judicial review case Bell vs Tavistock that trans children could not competently consent to puberty blockers. Today, that judgement was overturned by the Court of Appeal, reinstating the previous position, In its decision, the Court of appeal ruled that the High Court had overstepped its bounds in its decision and Gillick competence applies to trans as well as cis children. A child under 16 may consent to their own medical treatment regardless of their parents' views if "they're believed to have enough intelligence, competence and understanding to fully appreciate what's involved in their treatment".

There is exactly one service, GIDS at the Tavistock, in the NHS in England which cares for trans children and refers them to endocrinologists for puberty blockers. Referrals effectively ceased in December 2020, and it is not clear when they will return.

Keira Bell who brought the case, received puberty blockers at 16 (an age where ability to consent is enshrined in legislation, "as if he were of full age" [sic]) and surgery at 20 before detransitioning by the age of 23. The lawyers acting on Bell's behalf are hoping to overturn Gillick competence entirely at the Supreme Court.

Meanwhile the Department for Health is relying on Gillick competence in it's position that children between 12 and 15 may be able to consent to their own Covid vaccine regardless of their parent's views.
posted by plonkee (11 comments total) 27 users marked this as a favorite
Keira Bell who brought the case, received puberty blockers at 16 (an age where ability to consent is enshrined in legislation, "as if he were of full age" [sic]) and surgery at 20 before detransitioning by the age of 23. The lawyers acting on Bell's behalf are hoping to overturn Gillick competence entirely at the Supreme Court.

Oh fuck off. This stealth attack on trans people disguised as paternalistic bullshit has to stop. Transitioning is not done on a whim. There will be people who back out of or reverse the process. It's impossible for it to not happen simply because people grow and change and as they find their place in the universe. Denying care to others because one took the road less traveled is some sort of twisted evil.
posted by Your Childhood Pet Rock at 2:57 PM on September 17 [36 favorites]

It's kind of a patchwork in the U.S., too, with the added laws that differ by state. In my home state I could get a driver's permit at 14, a job at 15, driver's license at 16, vote and join the army (or be drafted) at 18, drink alcohol at 21 (which used to be 18 in most states).
posted by zardoz at 3:06 PM on September 17 [1 favorite]

Thanks for this post. The stakes are huge here, and any decision that doesn't allow for consent by children seems as though it could be weaponized by certain constituencies of parents, who are trying to assert control over their children in ways that can 100% cause harm (transphobic, anti-vax, and many others). It's incredibly telling that the case being pushed is by someone who detransitioned. A person's identity should not be used to erase the identities of others, or cause discrimination and abuse to be enshrined in laws. I'm glad Bell was able to make decisions for herself, and denying access to care for others, or blaming the NHS for allowing her to make those decisions is some intensely transphobic nonsense.
posted by kaelynski at 3:06 PM on September 17 [11 favorites]

Worth nothing that Paul Conrathe, the lawyer making the case against Gillick competency, also acted for Sue Axon in the Axon case. Attacks on Gillick competency are explicitly attempts to limit minors' right to receive advice on sexual health and birth control from doctors without the knowledge of their pareants.

The rights of trans people should be protected because they are people, and deserve the protection of the law and the right to personal autonomy and dignity. However, attacks on the rights of trans people are also attacks on the bodily autonomy of other groups.
posted by running order squabble fest at 4:12 PM on September 17 [23 favorites]

Just want to point out that many people who "detransition" do so because they receive so much abuse and hatred from the people around them that it seems easier to live being perceived as a wrong gender than it does to put up with the messages from their "loved ones" about how trying to live as their true self is wrong and bad.
posted by Lexica at 6:08 PM on September 17 [19 favorites]

The case has a number of odd features.

Bell's ability to consent to medical treatment at age 16 is a feature of a 1969 piece of legislation, which (unlike case law) the court cannot easily overturn.

The Tavistock centre do not prescribe puberty blockers themselves, but the two organisations that do (and who therefore actually make the relevant decisions on competency) were not included in the case until the appeal where they could intervene.

The High Court ruled that the policy and practice of the Tavistock centre and the relevant endocrinology teams was legal, the information provided to patients was not inadequate, and that in law, people under 18 can consent to puberty blockers but decided to offer 'guidance' that amounted to requiring affected children to get permission from the court anyway.

The upshot in practice was that a child could potentially consent to the amputation of a limb, or choose to stop life-sustaining treatment, but not to puberty blockers.

The only thing that seems to be normal is that the Court of Appeal upheld well established case law. As the High Court should have done in the first place.
posted by plonkee at 7:35 PM on September 17 [5 favorites]

"Worth nothing that Paul Conrathe, the lawyer making the case against Gillick competency, also acted for Sue Axon in the Axon case." And Conrathe represented transphobic tweeter Harry "HarrytheOwl" Miller, in Miller's suit against the College of Policing and the Chief Constable of Humberside in Lincolnshire. The High Court ruled in favor of Miller, deciding that "the police response to an ex-officer's allegedly transphobic tweets was unlawful." Miller's original suit also issued a broader challenge against the lawfulness of the College of Policing's Hate Crimes Operational Guidance (HCOG); the court rejected that part. In March 2021, Miller filed against the College of Policing again to challenge this guidance, this time at the Royal Courts of Justice. [Summarized from disgusting UK media coverage.] The HCOG itself was already updated -- last fall. New national hate crime guidance published (College of Policing, Oct. 20, 2020): "The updated guidance addresses recommendations in a report from Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS), which looked at the initial police response to reports of hate crime. It also takes into account the findings from a High Court ruling in February 2020 when a claim that the College’s previous hate crime operational guidance for police was unlawful was rejected."]

Paul Conrathe, his clients, trends: The anti-trans “gender critical” (GC) movement has been associated with a number of high profile legal cases in the last two years, notably former police officer [warning: next link is to the legal judgment .pdf, which contains excerpts of Miller's hate speech on Twitter, nauseating doubling-down testimony in court, and the ruling] Harry Miller's case against the college of policing and the case brought against NHS trans healthcare for young people by detransitioner Kiera Bell and an anonymous parent of a trans child. In both cases, the plaintiffs were represented by solicitor and self-described “human rights lawyer” Paul Conrathe of SinclairsLaw, with legal costs raised via legal crowdfunding site CrowdJustice. [Lists crowdfunded cases] Conrathe, a former director of both the Christian Charismatic UnitedLife church and Premier Christian Media Trust has been involved in a number of evangelical and anti-feminist causes [...] It is increasingly clear that a number of these legal cases, while purporting to be in the interests of women and LGB people, are providing significant amounts of funding to groups and individuals with links to the Christian far right. -- Religious Right linked law firm receives £314k from “gender critical” causes, TransSafety.Network, Jan. 16, 2021
posted by Iris Gambol at 9:08 PM on September 17 [8 favorites]

^I'm so sorry for using the term "suit" above. In this February 2020 UK Human Rights Blog entry on the Miller case, "Twitter, trans rights and the role of the police — an extended look" (background, details, analysis), the correct term is judicial review ["a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body"].

After the police followed up on a report, filed by a trans woman, about Miller's transphobic tweets: The Humberside Police Crime Reporting Team decided to record the incident as a non-criminal hate incident, pursuant to the Hate Crime Operational Guidance 2014 (“HCOG”). A plain clothes constable attended Mr Miller’s work to speak to him, but he was unavailable. The constable left his card and requested Mr Miller call him. In the conversation that resulted, Mr Miller was warned that if he ‘escalated’ matters, the police might take criminal action. No explanation of what escalation meant was given. Mr Miller lodged a complaint with Humberside police, which was dismissed, as was his appeal from that decision. He then brought a judicial review against both the College of Policing and the Chief Constable of Humberside.
posted by Iris Gambol at 9:30 PM on September 17 [2 favorites]

Medical decision making abilities is so interesting because it is so incredibly cultural. It's also so so incredibly important for transrights, because puberty blockers especially are important for younger age groups, and need to be adminatered during a critical window. Doing this stops the development of unwanted secondary sex characteristics which are 1) difficult, painful and cause extensive surgeries to remove 2) provide characteristics that outside of the puberty window aren't possible to achieve such as changes in hieght and some characterustics like voice lowering aren't reversible 3) support and are affirming to the child's mental health 4) allow them to age to make decisions about things that can only happen once someone is an adult, such as specific gender conforming surgeries.

This is medical care that litterally cannot wait until someone is 18 by then it is to late.

What is also interesting in this, at least according to the UK trans people I follow is that the NHS waiting lists are too long, and that unless a kid has gotten on them at the time of of 6 or 7, they literally will age out of the critical period window to get puberty blockers before their turn on the waitlist (as above, right now it's pretty much not an option because referrals stopped) Like I started puberty at 11, and with the 5 year waitlist that means that i would have needed a parent to put me on the list at age 6 just to get an initial appointment prior to puberty! And the time between appointments and assessments can be long, like a year in length. Most people who transistion as kids and recieve puberty blockers end up doing private pay, which of course requires parental consent because money!

There is systemic discrimination in these things. People don't want trans people to be able to transistion without the most pain, and suffering possible. They want to create conditions in which that people can "tell" they are trans. That's it. One of the awesome things about puberty blockers specifically that is if a child who had now aged some decides no this isn't for me, I'm not not trans is that they can successfully go through puberty just fine! That's the whole point!

So the discrimination for time sensitive care goes further than just these laws.
posted by AlexiaSky at 1:57 AM on September 19 [9 favorites]

It's infuriating to see people arguing that the safeguarding complaints at Tavistock show that they are pushing kids into treatment too fast - most of them haven't even read any of it, so they don't even *know* that a big part of the problem is kids waiting too long for intake appointments. Such crap.
posted by bashing rocks together at 8:29 PM on September 19

In the recent Court of Appeal judgement, they found out that the median age at which puberty blockers were referred or prescribed was 14, and the median age for cross-sex hormones was 17. I believe the waiting time between referral and first appointment is two to three years. That means more than half of the children eventually given blockers have been them significantly after they have started puberty.

The Tavistock may not be the best it could be, and that should be addressed. It also shouldn't be the only game in town given the unmet demand for its services. But that is separate to whether the NHS chooses to treat trans kids, and also whether the treatment policies follow the law.
posted by plonkee at 8:00 AM on September 20

« Older The economists’ reassurances were closer to...   |   Life inside of a US detention center Newer »

This thread has been archived and is closed to new comments