It is useful at the outset to distinguish between three possible issues with which the courts have to deal. First, there is the issue of whether a child under 16 is competent to consent to or to refuse medical treatment (see Gillick v. West Norfolk and Wisbech AHA [1986] AC 122 (Gillick), and more recently, R (Bell) v. Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416 (Bell v. Tavistock)).
Secondly, there is the issue of whether a child (but also an adult) has mental capacity to consent to or to refuse medical treatment (see sections 1-6 of the Mental Capacity Act 2005).
Thirdly, there is the issue of what is in a child’s best interests. This issue
arises once the presumption as to the competence of a child over 16 to consent or refuse medical treatment is engaged (see section 8 of the Family Law Reform Act 1969 (FLRA 1969), which provides that a child over 16 can give consent in the same way as an adult, and no further consent is required from parents or guardians). Despite section 8, the court still retains the right to override consent given or withheld by a child over 16 on welfare or best interests grounds in very limited and well-defined circumstances (see Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 (Re W)).
This case now concerns mainly, if not only, the third issue that I have described above, namely whether now or in the future the court could or should override any consent given by the young person for cross-sex hormone treatment.
I have decided, although not without hesitation, that the judge was wrong to refuse to adjourn the mother’s application. In normal circumstances, as explained in Bell v. Tavistock, questions of Gillick competence are for doctors. Moreover, questions of policy relating to treatments for gender dysphoria are for the NHS, the medical profession and the regulators. Where, as here, there is no question of the young person’s competence or capacity, the judge had good reason for thinking that the young person’s best interests were served by allowing the treatment process to take its course, without the oversight of the court. On careful reflection, however, I think that two factors combined here to make it clearly appropriate for the court to keep the proceedings alive
at least until the young person’s assessment by Gender Plus has been completed and can be considered, if necessary, by the court in circumstances where there continues to be genuine disagreement between the parties. First, Gender Plus, as a private provider, could not satisfy all the recommendations made in the Cass Review, including, in particular, the recommendation that every case proposed for medical treatment should
be considered by a national multi-disciplinary team. Secondly, the Cass Review had only just been published when the judge heard the application, and it was already clear then (and has been demonstrated since) that Government would be taking various (perhaps then unknown) steps to implement it in ways that the court could not predict, but which might (in the future) affect an appropriately objective view of where the young person’s best interests lay.
Source: ReQ.APPROVED JUDGMENTS.pdf – ReQ.APPROVED-JUDGMENTS.pdf