Brook is intervening in the appeal as we believe the Bell judgement poses serious risks to other forms of healthcare and young people’s autonomy.
Many clinicians across a range of disciplines and other interested parties will be following the Tavistock’s appeal of the Bell judgment closely and with concern. Young people have a right to make decisions about their own medical care in line with their evolving maturity and understanding. This is set out in the UN Convention on the Rights of the Child and the principle of Gillick competence, which underpins practice across health, social care and many areas of work with young people. What the Bell v Tavistock Judgment did was drive a coach and horses through this principle.
While the Bell judgment uniquely positions puberty blockers, outside of the normal range of sometimes complex and difficult healthcare decisions that young people make every day with the support of their clinicians and other professionals, it poses grave risks to other forms of healthcare and the autonomy young people have over their own bodies.
The judgment meant that even where there is no conflict between what the young person, parent/guardian and expert clinician want, autonomy is taken from them and given to the court. This undermines the expertise of clinicians working daily with young people and the agency of young people and supportive parents.
The truth is other health decisions are routinely made by and with young people that may be as complex, the outcomes more uncertain and the context at least as distressing.
For example, in the case of decisions around cancer treatment, involvement in clinical trials and end of life care. Yet they are not considered controversial or subject to political or legal scrutiny in the same ways as trans healthcare.
Many medical professionals working with children and young people in other contexts saw the Bell Judgment last December and inevitably asked ‘what next’? What of other forms of healthcare such as abortion which – despite data demonstrating safe and positive outcomes spanning 50 years in the UK – is still subject to political attacks by those who would see it banned?
Might a future court case set out to exceptionalise provision of abortion for young people as a uniquely difficult decision? There are certainly those who would relish the opportunity to try.
The Gillick case established the principle that in these decisions the clinician will communicate the risks and benefits of different treatment options drawing on the best available evidence, and is entrusted with the task of assessing whether the young person understands the information and is competent to make the decision.
Familiarity with the individual supports clinicians in judging a young person’s competence to consent; as does working with a range of diverse young people over time. Professionals working with young people know that you cannot draw red lines based on the age of the young person in front of you. Young people’s maturity and comprehension, their ability to articulate what they want, what they understand and their ability to weigh risk and benefit will vary widely between people of the same age.
The most severe impact of the Bell v Tavistock ruling may be mitigated for some young people by a subsequent court ruling allowing parents to consent to treatment on their children’s behalf, but this still represents a significant departure from legal precedent and established practice. Young people come to Brook and other sexual health services because they know it is possible for them to access care without parental involvement. The right to access confidential advice and treatment gives young people the confidence to seek help in the first place which can only have positive outcomes in their dealings with healthcare as an adult.
When young people don’t believe they have a right to access treatment, or fear that they will have to seek parental permission for contraceptive or abortion care, access can be delayed. Significant safeguarding issues can remain hidden, unwanted pregnancies continued and even concealed, putting the young person at unnecessary risk and significant harm.
In an apparent attempt to make puberty blockers for trans young people as inaccessible as possible, Brook is worried that the court’s ruling risks the established legal principle of Gillick competency becoming collateral damage. Whether intended or not, this could have potentially disastrous consequences for young people’s safety and care.