11 December 2020

The Keira Bell case was not a defeat for trans people, but a victory for restraint

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In October last year, I confessed that two forthcoming trials were making me paranoid. A ruling in one of them Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust — was brought down last week and it seems my paranoia was entirely justified. Not for the first time, the legal profession has been forced to haul on the railway brake when the medical profession is in danger of running off the tracks. 

This litigation forms part of a broader medical, legal, and cultural controversy over the proper approach to a medical condition, gender dysphoria, and an aspect of its manifestation in wider culture, transgenderism. That controversy was evident in the reaction to the judgment, which the trans children’s charity Mermaids claimed was a “devastating blow” for trans young people.

As I predicted, Bell v Tavistock was a case calculated to test ‘Gillick competence’ to absolute destruction. Gillick competence refers to the common law rule in England and Wales (and statute in Scotland) permitting children under 16 years of age to consent to their own medical treatment without the need for parental permission or knowledge.

Of course, this is all set about with fever-trees: every time it’s litigated there’s intense focus on whether the child in question has achieved sufficient insight and intelligence to understand fully what is proposed. The decision in Gillick concerned a child’s capacity to consent to prescription of the oral contraceptive. The court in Bell was at pains to note that the medical procedure before it was far more serious. The particular treatment was the provision of gonadotropin-releasing hormone agonists, also known as puberty blockers (PBs), followed by cross-sex hormones (CSH) to allow a child to transition from one sex to the other.

Keira Bell is what is known as a “detransitioner”. Now 23, she struggled in adolescence. At 14, this daughter of an alcoholic single mother was anxious and depressed. Always uncomfortable with her femininity, she had masculine interests, was horrified by her periods, and felt like a freak. She began spending time online and so discovered trans influencers. She formed the view she, too, was transgender and was referred to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust. She was prescribed puberty blockers at 16, then proceeded to cross-sex hormones, before a double mastectomy aged 20. Significantly, she had already begun to experience doubts about the wisdom of her transition before the double-mastectomy, but persisted in part thanks to the one-way nature of her treatment path, on which the court expectorated at length.

When Bell litigated, she sought judicial review of Tavistock’s treatment regime. She did not bring a claim in medical negligence (one of many torts in England and Wales or delicts in Scotland). The difference between judicial review and tort is large and the remedies are different. This is probably best explained to the layman by pointing out that she did not set out to bankrupt the NHS.

Medical negligence claims are designed to extract monetary damages from the defendant, and the lawyers who run them often decried as ‘ambulance-chasers’. Imagine a law firm calling you speculatively and asking if you were mis-sold a sex-change, then suggesting you may be entitled to compensation.

A victorious claimant in a judicial review case, by contrast, receives not a penny. Instead, she gets a declaration that certain rights, rules and procedures are to be upheld or followed in future. However and this is the sting in judicial review’s tail if the defendant does not comply with the declaration then the tortious floodgates are opened. This is the reason, since the judgment was brought down, the Tavistock GIDS has effectively ceased to function. It also suggests Bell was not only ably advised but is a person of sound and generous character. The court (comprising three senior judges including the President of the Queen’s Bench Division, Dame Victoria Sharp) was emphatic:

The conclusion we have reached is that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with PBs. In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.”

By contrast, young people between the ages of 16 and 18 are presumed to have capacity. Even there, however, the court sounded a note of caution, perhaps with a view to concentrating clinicians’ minds on the possibility of future claims in tort and the immense damages attaching to them. 

“We do however recognise that in the light of the evidence that has emerged, and the terms of this judgment, clinicians may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court. We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16- or 17-year-old would be served by the clinical interventions at issue in this case.”

Since the judgment, a number of commentators have noted that Tavistock not only lost but lost badly. It was refused leave to appeal on the day and is now applying directly to the Court of Appeal for leave. It is, I think, worth setting out why leave was refused. In short, Tavistock brought a knife to a shootout. 

One of the issues raised in these proceedings is the non-existent or poor evidence base, as it is said to be, for the efficacy of such treatment for children and young persons with GD is a useful specimen comment. The paucity of evidence is what led to the finding that the use of puberty-blockers (let alone cross-sex hormones) was “experimental”.

And this is only one element of the evidentiary mess. Tavistock had not collated data on the age distribution of those prescribed puberty blockers. It had kept no statistics on the number or proportion of children referred to Tavistock with an existing autism diagnosis and then prescribed puberty blockers. It has no data on the number, if any, of young people assessed suitable for puberty blockers where the drugs were not prescribed because they were not Gillick competent. There has been no research as to why, in 2011, the gender split among children presenting at the clinic was roughly 50/50 between natal girls and boys but by 2019 the split had become 76% in favour of girls. This, by the way, is a global phenomenon evidence from other clinics that did keep adequate records, including one in the Netherlands, was tendered. 

Now, it may be that there is a genuine unmet medical need among adolescent girls of which clinicians had previously been unaware. It may also be that gender dysphoria and autism are co-morbidities that require an integrated approach to treatment. The problem, however, is no-one has done any research, so whether or not either is the case is simply unknown. It is entirely plausible for Tavistock to return in future litigation with a much stronger argument. For that to happen, however, research simply has to be done. You and I may be able to fly by the seat of our pants, but courts cannot and doctors should not.

Relatedly, the administration of puberty blockers progressed with a grim inevitability to the use of cross-sex-hormones; they did not provide “space to think” but rather seemed designed to ensure that future surgical interventions were more effective. Evidence from the Netherlands indicated, of the adolescents who started puberty suppression, only 1.9% did not proceed to cross-sex-hormones. Tavistock offered no alternative treatment paths, an aspect of the modern (and similarly unevidenced) fashion for “affirmative” treatment of gender dysphoria.

It’s worth making an aside here and noting the general problem of poor record-keeping and cavalier attitudes to evidence and data across a number of British institutions. Over and over again the EHRC, in its report on Labour anti-Semitism, observed a failure to complete the most basic administrative tasks. The same issue emerged in the Home Office during the Windrush scandal, and as I wrote last year — in the Government’s frankly contemptuous behaviour before the Supreme Court in last year’s prorogation case.

A number of commentators noted that charities Mermaids and Stonewall were refused permission to intervene, and said this looked unfair. They made these observations without realising interveners are there to assist the court, and must provide evidence that is different from that already tendered. If all they do is repeat what Tavistock has already said, they serve no purpose apart from wasting court time, and court time is expensive.

What Mermaids and Stonewall wished to enter into evidence were accounts of positive experiences from young trans people treated with puberty blockers. However, Tavistock had already provided these; they are quoted at length in the judgment. Much of the would-be interveners’ argument was based on the idea that “the voice of the child” must be heard, repeatedly if necessary.

Bell’s lived experience was a tiny part of her case and, indeed, by choosing judicial review rather than medical negligence, she made her personal circumstances (and those of other people) even less salient. A tort claim would have put her on the witness stand and investigated her treatment pathway because “pain and suffering” (one of the traditional heads of damage) is assessed subjectively when calculating potential damages in such a case.

It has become fashionable, of late, to valorise ‘lived experience’ from people keen to parade both their victimhood and their virtue. Unfortunately, lived experience by itself is not evidence in a court of law. Nor is the argument made by Mermaids that “every young person has the right to make their own decisions about their body” – something more is needed.

It is the role of medicine to heal the sick and leave the well alone, which is only possible via careful recourse to the scientific method and disinterested research. If this does not happen, it then becomes the law’s duty to ensure each and every litigant gets his or her due. 

In Bell, the latter came about simply because the former was not done.

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Helen Dale read Law at Oxford and Edinburgh and was senior legal adviser to an Australian Senator. She won the Miles Franklin Award for her first novel, 'The Hand that Signed the Paper'. Her latest novel is 'Kingdom of the Wicked', which was shortlisted for the Prometheus Prize for science fiction.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.