The Issue of Consent and Minors undergoing Medical Procedures

February-03-2021 in Healthcare Law

The issue of consent and minors will always have complexities to it given that parental consent is generally required when a minor undergoes a medical procedure. However, a recent decision by the English High Court has illustrated the importance of minors themselves understanding the implications of certain medical treatments. The case of R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274(Admin) details the need for a minor to be able to understand the long-term consequences of certain treatments in order to be deemed capable of consenting. It is important to note that as this is an English decision it in not legally binding in Ireland but can be persuasive before an Irish Court.

Background

This case concerns the decisions of minors who have gender dysphoria and therefore feel as though their sex at birth does not match their gender identity. Many individuals with gender dysphoria have a desire to live their life according to their gender identity rather than their sex at birth. In the UK an NHS Trust assists individuals under the age of 18 who experience gender dysphoria through the Gender Identity Development Service (GIDS).  

This Court in this matter considered (1) the treatment required and received by individuals at GIDS, (2) whether a minor can consent to such treatment, and (3) what their level of understanding of the treatments and its potential side effects should be if their consent is to be deemed appropriate.

If a person with gender dysphoria is in the care of GIDS and is seeking to transition to their preferred gender there is a three-stage approach taken depending on the age of the individual and on their level of understanding. Stage One is to put the individual on puberty blockers in order to suppress the physical developments that may occur during puberty. This stage can occur when an individual is under the age of 16 years old. The Defendant stated that this stage can be used to provide the individual with more time to consider their treatment options. It was however questioned by the Court if being placed on this medication could reinforce an individual’s feelings of gender dysphoria.

Stage Two is the administration of hormones which can be prescribed to individuals of approximately 16 years old or older. The hormones have much more wide-ranging side effects than the puberty blockers which are generally considered reversible. The hormones are not considered reversible and can impact on an individual’s fertility. Stage Three is the final stage and is gender reassignment surgery. This can only by accessed in the adult services to those over the age of 18.

This claim was brought by two claimants. The first, Ms Bell, was born female, underwent treatment for body dysphoria including puberty blockers, hormones, and eventually a double mastectomy. The claimant, as an adult, detransitioned and gave evidence to the effect that she did not understand the implications of the treatment received as a minor. The second claimant, A, is the mother of a 15 year old autistic girl who is concerned that her daughter may be prescribed puberty blockers if referred to GIDS. It was claimed that minors cannot give valid consent to the treatment of puberty blockers.

Issues

It should be noted that the Court is this case was not considering the benefits or disbenefits of treating minors with gender dysphoria with puberty blockers but instead were considering whether minors should be deemed competent to give consent to such treatment.

The Court considered the issue of consent for those under the age of 16 and for those between the age of 16 and 18. The Court noted that the process of transitioning was a three-step process and considered the issue of consent and whether an understanding was required for each of the stages.

The Court clarified that in this case the issue surrounding parental consent was not necessary to discuss. This is because GIDS, as part of their policies and procedures, do not go forward with the treatment of individuals without parental support and do not accept parental consent without having the minor’s consent. Therefore, if there is a clash between the parents’ decision and that of the minor the treatment will not proceed.

The Court identified that there was uncertainty surrounding the long-term consequences of puberty blockers. The Court also indicated that the “vast majority” of children who are prescribed puberty blockers go on to hormone treatment. The Court described puberty blockers as a “stepping stone” to hormone treatment and therefore an individual would need an understanding of the impact of the second stage of treatment also. The Court noted that it will be impossible for many children to comprehend the concept of loss of fertility, which is a risk when taking hormones.

The Defendants in this matter indicated that if a child did not understand the treatment further information would be provided to them and further discussions would occur. However, the Court indicated that providing a child with more and more information would not necessarily result in the child’s increased comprehension of the long-term effects of the treatment or assist in their ability to weigh up the loss and benefits, particular for issues such as loss of fertility.

Decision

The Court ruled that in order to be deemed Gillick competent, meaning that a minor under the age of 16 has a sufficient understanding and intelligence to enable them to understand fully what is proposed with the treatment, to consent to the puberty blockers a minor, under the age of 16, would have to comprehend fully all of the following in respect of this treatment:

• The immediate consequences of the treatment in physical and psychological terms.
• The fact that the vast majority of patients taking puberty blockers go on to hormone treatment and therefore that s/he is on a pathway to much greater medical interventions.
• The relationship between taking hormone treatment and subsequent surgery, with the implications of such surgery.
• The fact that hormone treatment may well lead to a loss of fertility.
• The impact of hormones on sexual function.
• The impact that taking this step on this treatment pathway may have on future and life-long relationships.
• The unknown physical consequences of taking puberty blockers.
• The fact that the evidence base for this treatment is as yet highly uncertain.

The Court stated that it is “highly unlikely” that a minor under the age of 13 would ever be deemed Gillick competent to consent to treatment by way of puberty blockers. The Court acknowledged that as minors age their level of maturity increases and there is more of a possibility of achieving Gillick competency. However, the Court stated that they are “very doubtful” that a minor between the ages of 14 and 15 could sufficiently understand the long-term risks and consequences of the treatment so as to give consent.

With regards to minors aged 16 and over, the Court accepted that there is a presumption of capacity to give consent. However, the Court referred to their own inherent jurisdiction to protect a child if it considers the treatment to not be in the child’s best interest. The Court supports clinicians involving the Court if there is doubt regarding the long-term best interest of the child. It therefore appears that the Court will have some level of supervision over the use of this treatment if the clinicians have any doubt as to a minor’s competency, including those of 16 or 17 years of age.

For more information on any of the issues raised above, please contact any member of our Healthcare Team.