Why Jolyon Maugham should stick to battering foxes

A few days ago I tweeted a few somewhat sceptical comments on the proposed intervention by the “Good Law Project” in the Tavistock Clinic’s upcoming application to appeal the High Court decision in Bell v Tavistock.

This is, of course, the recent case dealing with the issue of informed consent relating to the use of “Puberty Blockers” in the treatment of adolescents presenting with Gender Dysphoria, a case in which the court reached the following overall conclusions.

151. A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.

152. In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.

Subject to the outcome of any appeal, should permission to appeal the High Court’s decision even be granted, the legal position in the England and Wales is that the use of medication to suppress the natural course of puberty in adolescents presenting with Gender Dysphoria will, henceforth, require the authorisation of the court on an individual, case by case, basis, where that individual is under the age of 16*. This applies both to the NHS Gender Identity Development Service, of which the Tavistock Clinic is part, and clinics/clinicians operating in private practice.

[Clarification – Parental consent is hypothetically possible in law but ruled out by NHS GIDs current ethical stance on consent hence, in practice, only a court can presently authorise the use of puberty blockers as a treatment for adolescents presenting with Gender Dysphora]

The response I received from tax lawyer, thin-skinned wannabe white knight, and occasional kimono-clad fox-batterer, Jolyon Maugham, was – to say the least – entirely predictable.

Yes, Brave Sir Jolyon ran away, bravely ran away away.

Bad idea.

Okay, so let’s be clear where were going with this. I’m not about to reanalyse the entire case in Bell v Tavistock nor get into the generality of the aetiology and treatment of Gender Dysphoria. What I’m interesting in here is the ‘intervention strategy’ put forward by Maugham’s ‘Good Law Project’ as it relates to matters already addressed in the Bell v Tavistock ruling and in an Order dated 1 December 2020 in which initial permission to appeal was refused.

So, this is the relevant bit of text that were dealing with here:

We also agreed on two spending commitments.

The first is that a legal team including David Lock QC, Jason Pobjoy, and Isabel Buchanan (acting either pro bono or at heavily discounted rates) will seek to ‘intervene’ in the Tavistock’s appeal against the Bell judgment. An intervention is where other parties with an interest ask to be heard in a case – alongside the main parties.

The intervention will be on behalf of a small group of NGOs who we will name in due course. The intention is to make points that were made inadequately or not at all before the Divisional Court around, in particular, (i) the need to hear what teenagers say about their own lives (ii) the role of parental consent and (iii) wider implications (e.g. for access to abortion) of the decision. The Advisory Group believes the decision was wrong and there is a reasonable basis for thinking it can be overturned.

The second commitment arises from the fact that, presently, the Tavistock does not accept that parents can consent to their children having puberty blockers. And the decision in the Bell case means that children cannot consent either. This leads to the situation where the consent of the Court – itself a huge barrier in practice – needs to be sought even in circumstances where a specialist doctor, parent, and child all agree that a treatment is in the child’s best interests.

The Tavistock will be invited – or sought to be compelled – to review its position in relation to whether to accept parental consent. In practice success on this action would remove, in many or most cases, the practical barrier to treatment posed by the Bell decision.

The spending commitments in question are to be met from a crowdfunded “Legal Defence Fund for Transgender Lives” which, at the time of writing, has currently raised around £130,000.

Now let’s start breaking this down, and the first thing to note is that, as I write this we know only that the Tavistock and Portman NHS Foundation Trust, in conjunction with University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospitals NHS Trust has sought permission to appeal the ruling in Bell v Tavistock and not the basis of that appeal, which has to be on a point of law. One cannot, therefore, take a view as to the extent to which Maugham’s proposed intervention may or may not be relevant to the grounds on which Tavistock has sought permission to appeal.

What we are told is that the intervention will be on behalf of ‘small group of NGOs” and that it will address points that were ‘made inadequately or not at all’ during the original hearing, the first of which being “the need to hear what teenagers say about their own lives”?

Can it really be the case that the barristers acting for the Tavistock Clinic and others intervening in the case failed to ensure that the court heard what teenagers had to say about their own lives? Let’s take a look at paragraphs 85 to 88 of the full ruling,which come from a section dealing with the evidence provided to the court by the claimant, Keira Bell, and other individuals.

85. J is a 20 year old transgender man who received PBs in 2012 at the age of 12 followed by CSH in 2015. He described how he felt a strong need to become a boy from an early age and how he was bullied at school for his behaviour. He found the onset of female puberty horrifying and unbearable. After a number of sessions at GIDS he was prescribed PBs from the age of 12.

86. According to J he was given the fullest possible information from the clinicians at GIDS as to the benefits and disbenefits of the treatment. The clinicians strongly challenged his desire to transition and why he had chosen to express his gender identity as male. He was advised as to the impact on fertility if he chose to go on to CSH and surgery. He said: “I made the decision to proceed with pubertal suppression without pursuing egg preservation. It was a difficult decision to make because I did not know whether I would want biological children in adulthood, but I was certain I would never want to
carry a child and give birth. Ultimately, I made the decision because I had a poor quality of life and without immediate treatment I did not feel I had a future at all.” He says: “We discussed sex and I told them the idea of it disgusted me. I knew I would be unable to consider having a sexual relationship as an adult with my body so wrongly formed.” He ended his witness statement by saying that he is thankful that his pubertal development was halted as it removed the distress caused by continued development, but he wishes that the PBs were started earlier which would have prevented the need for breast surgery later.

87. S is a 13 year old trans boy who is on the waiting list at GIDS. He was told that he would have to wait for approximately 24 months to be seen and with his parents decided to see a private provider, GenderGP, where he has been prescribed PBs. We note at this point that the GP in question was removed from the professional register and now operates from outside the United Kingdom. S in his witness statement said:

“13. … I haven’t really thought about parenthood – I have been asked about it by the gender identity specialist I have mentioned but I just have no idea what me in the future is going to think. I haven’t had a romantic relationship and it’s just not a thing that is really on my radar at the moment.”

88. N, an 18 year old trans woman, who was prescribed PBs when she was 17 years old said:

“12. The treatment of hormone blockers may very well have saved my life. In the period of my life that I was prescribed them my mental health was spiralling due to my dysphoria and this impacting on my daily life, learning and social interactions. While the first injections of gonapeptyl were slow to take effect they eventually began to alleviate my dysphoria in very real ways. I had to shave less and I didn’t have to fear pubertal development anymore. I had the time necessary to think about my situation and decide on further courses of action. This also helped my mental health as it gave me significantly less issues overall allowing me to focus and concentrate on aspects in my life alongside my gender identity rather than my fears of puberty and development overtaking everything else in my life.”

And later, at paragraph 141, we have the following reference.

141. Some of the children and young people who have been treated at GIDS say in their witness statements that the thought of sex disgusted them, or they did not really think about fertility. These normal reactions do not detract from the difficulties surrounding consent and treatment with PBs. That adolescents find it difficult to contemplate or comprehend what their life will be like as adults and that they do not always consider the longer-term consequences of their actions is perhaps a statement of the obvious.

Also relevant here is this section of the Order of 1 December dealing with a claim that a specific individual had been debarred from the proceedings:

S was not debarred from taking part because of procedural failings. He had applied to intervene by way of written evidence and written and oral submissions to ensure that the voice of the child was heard. Shortly before the hearing, it transpired that, though he had not disclosed this when making the application to intervene, he had already made a witness statement (albeit using a different initial) which had been put in evidence by the Defendant. The voice of the child, and this particular child, was heard.

It is not clear whether the ‘S’ referred to here is the same one referred to in paragraph 87 of the main ruling or someone else entirely, nevertheless the evidence adduced by this ‘S’ was given due consideration as part of the evidence submitted by the Tavistock Clinic and others who intervened in the case on its behalf. Indeed, in rejecting the clinic’s immediate application to appeal the court’s decision, the court is unequivocal in its view that “The voice of the child… was heard”.

So who, exactly, are the ‘to be named in due course’ NGOs that apparently disagree with the court’s assertion that the voice of the child was heard during the case?

I think I can safely name two of them now, Stonewall and Mermaids, largely because both sought to intervene in the original case only to have their applications declined by the court as explained in the Order of 1 December:

The Defendant refers to Orders made in relation to proposed interveners. Stonewall and Mermaids were not debarred from taking part because of procedural failings. They applied to intervene by way of evidence but what was advanced did not add to the evidence in the case. They applied to intervene by way of submissions but wished to raise an issue not within the confines of the case. Though given a number of opportunities to do so, they were unable to provide a clear indication (unlike those given permission to intervene) of what they would wish to submit in relation to the issues in the case.

So, the absence of both Stonewall and Mermaids from this Judicial Review was due to their inability to:

a) adduce evidence not already adequately covered by the Tavistock Clinic and by others intervening in the case in support of the clinic,

b) stay on topic, and

c) provide clarity as to what, if anything, they wished to submit to the consideration of any of the issues before the court, despite being given several opportunities to clarify their intentions.

So far as additional information relating to these unsuccessful applications is concerned, all we have are the following comments given to Pink News by Stonewall:

“We applied to provide evidence to the court in the case brought against the Tavistock and Portman NHS Trust about the consent process for accessing puberty blockers, because we wanted to highlight the impact this case could have on trans children and young people, for many of whom these healthcare services are vital.

We also wanted the court to understand that many young people and their families who rely on these services already face significant barriers in accessing support, including extremely long waiting times and obstacles to referral.

While we’re disappointed we haven’t been granted permission to provide evidence in this case, it’s crucial the court recognises and considers the wider implications this case has for not just trans children and young people, but for all young people’s access to healthcare in general, when coming to its decision.”

From which we can reasonably infer that the issue of long waiting times and obstacles to referral is the one that the court, quite correctly, deemed to be outside the confines of a case related to the parameters of lawfully obtaining informed consent for treatment.

In respect to the question of what teenagers have to say about their own lives, the only points here that were made inadequately or not made at all appear to be those contained in Stonewall’s application to intervene in the case, points which were of no relevance to the substance of the case before the court and which were quite correctly dismissed at the point of application.

Moving on, what Stonewall’s comments to Pink News also appeal to reveal is that they are also the main player behind the third element of Maugham’s appellate ‘strategy’ – if it can be called that –  namely the suggestion that there are “wider implications (e.g. for access to abortion) of the decision”, which I think we can reasonably take to be a somewhat more tightly specified version of Stonewall’s claim of “wider implications… for all young people’s access to healthcare in general”.

This is outright bullshit, not to mention a claim that the court itself explicitly rejected in the order issued on December 1st.

Ground 4. The Divisional Court has not improperly restricted the decision in Gil!ick. It has sought to apply the requirements of Gillick to the treatment at issue in the present case.

Which, indeed it has. The court’s detailed consideration of the application of Gillick in the case begins at paragraph 105 of the full ruling and extends right through to the end of of the substantive ruling at paragraph 152, with the final position of the court being summarised in paragraph’s 151 & 152 as follows:

151. A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.

152. In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.

There are numerous reasons I could cite as to why this ruling has no effect whatsoever on the generality of young people’s access to healthcare or the specifics of access to sexual health services, including abortion but for the sake of brevity I’m going to focus on just one, this being the fact that the question of the application of Gillick competence to access to abortion and other sexual health services has already been litigated in The Queen on the application of Sue Axton v The Secretary of State for Health (The Family Planning Association: intervening) [2006] at which time the court reached these conclusions:

153. As I have explained, this judgment is concerned with how medical professionals should deal with young people, who want advice on sexual matters but who cannot be persuaded to inform their parents or to permit the medical professionals to inform their parents. There is nothing in this judgment which is intended to encourage young people to seek or to obtain advice or treatment on any sexual matters without first informing their parents and without discussing matters with them. On the contrary, it is to be hoped that all young people will do so because in Lord Fraser’s words in Gillick at page 173E

“in the overwhelming majority of cases, the best judges of a child’s welfare are his or her parents”.

154. Thus, my task has been to determine the circumstances in which a medical professional could advise or treat a young person for sexual matters when all attempts to enable their parents to be notified and consulted have failed. The solution to this task is to be found in the decision of the House of Lords in Gillick, by which I am bound and which for the reasons, which I have sought to explain, provides much guidance on the circumstances in which medical advice and treatment can be given without parental knowledge or consent on contraception, on sexually transmissible diseases and on abortion. This leads to the conclusion that the medical professional is entitled to provide medical advice and treatment on sexual matters without the parent’s knowledge or consent provided he or she is satisfied of the following matters

(1) that the young person although under 16 years of age understands all aspects of the advice [In the light of Lord Scarman’s comments in Gillick at page 189C set out in paragraph 13(v) above he or she must “have sufficient maturity to understand what is involved” that understanding includes all relevant matters and it is not limited to family and moral aspects as well as all possible adverse consequences which might follow from the advice;

(2) that the medical professional cannot persuade the young person to inform his or her parents or to allow the medical professional to inform the parents that their child is seeking advice and/or treatment on sexual matters [As stated in the 2004 Guidance, where the young person cannot be persuaded to involve a parent, every effort should be made to persuade the young person to help find another adult (such as another family member or a specialist youth worker) to provide support to the young person];

(3) that (in any case in which the issue is whether the medical professional should advise on or treat in respect of contraception and sexually transmissible illnesses) the young person is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment or treatment for a sexually transmissible illness ;

(4) that unless the young person receives advice and treatment on the relevant sexual matters, his or her physical or mental health or both are likely to suffer [ In considering this requirement, the medical professional must take into account all aspects of the young person’s health] and

(5) that the best interests of the young person require him or her to receive advice and treatment on sexual matters without parental consent or notification

The ruling in Bell v Tavistock in no way affects this earlier ruling on access to sexual heath and abortion services for reasons that are set out in detail from paragraph 134 onwards but which are perhaps  most readily explained in paragraph 134.

134. The starting point is to consider the nature of the treatment proposed. The administration of PBs to people going through puberty is a very unusual treatment for the following reasons. Firstly, there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or indeed quite what it is seeking to achieve. This means it is, in our view, properly described as experimental treatment. Secondly, there is a lack of clarity over the purpose of the treatment: in particular, whether it provides a “pause to think” in a “hormone neutral” state or is a treatment to limit the effects of puberty, and thus the need for greater surgical and chemical intervention later, as referred to in the Health Research Authority report. Thirdly, the consequences of the treatment are highly complex and potentially lifelong and life changing in the most fundamental way imaginable. The treatment goes to the heart of an individual’s identity, and is thus, quite possibly, unique as a medical treatment.

Let’s repeat that last sentence.

The treatment goes to the heart of an individual’s identity, and is thus, quite possibly, unique as a medical treatment.

The court’s decision to impose judicial oversight on the process of obtaining informed consent in relation to under 16s and recommend its consideration in relation to 16-17 year olds reflects its perception of the, quite possibly, unique nature of the treatment and not a general or overriding principle to applied in other, more mundane, situations where the parameters of obtaining informed consent are already well established and supported by case law.

The kindest interpretation I can put on Maugham’s bullshit claims of a threat to abortion rights is to treat it as a marketing strategy linked directly to the need to generate funds for his litigation via a crowdfunding initiative.

There are less charitable interpretations, of course, which I will save for a future occasion.

That leave us just to consider the second arm of Maugham’s ‘strategy’, which deals with the question of ‘parental consent’ for treatment, an issue that was certainly not considered in full by the court for reasons set out at paragraph 47.

47. If a child cannot give consent for treatment because they are not Gillick competent then the normal position in law would be that someone with parental responsibility could consent on their behalf. Mr Hyam sought at one point to argue that a decision as to giving PBs would fall outside the scope of parental responsibility because of the nature of the treatment concerned. However, the GIDS practice in relation to acting on parental consent alone is quite clear. In the response to the pre-action protocol letter the defendant said:

“36. There is a fundamental misunderstanding in your letter, which states that parents can consent to pubertal suspension on behalf of a child who is not capable of doing so. This is not the case for this service, as is clear from the above. Although the general law would permit parent(s) to consent on behalf of their child, GIDS has never administered, nor can it conceive of any situation where it would be appropriate to administer blockers on a patient without their consent. The Service Specification confirms that this is the case.”

It follows that is not necessary for us to consider whether parents could consent to the treatment if the child cannot lawfully do so because this is not the policy or practice of the defendant and such a case could not currently arise on the facts.

The “Service Specification” referred to above includes a descriptive appendix on “Informed consent in the context of GIDS” which notes that:

Age alone does not determine capacity to give consent: there is no international consensus on the lower age limit for presuming competence.

For young people under 16, consent to treatment should usually be sought from the child and from one or both parents/carers, except under exceptional circumstances. Under the law, adolescents over 16 may consent to treatment if capacity is demonstrated. A clinician(s) should assess a young person’s capacity to give consent. While we may think of a young person expressing their ‘autonomy’ by deciding on their own, with good understanding and without undue constraint, in reality a number of contextual factors are likely to influence a child or young person’s decision-making competence.

These will include their developmental stage, the quality of information provided (as discussed above, the influence of peers, parents/carers and their life experience. For instance, young children face cognitive limitations: they may view the world in concrete terms and struggle to reason about abstract or hypothetical problems. In adolescence, new cognitive and social skills are acquired which lead to increased maturity in reasoning about complex issues. Yet adolescents may still find it difficult to restrain impulsiveness and to see a given decision in a larger temporal context.

Competence in children and young people may also be related to life experience: children who have personal experiences with particular kinds of challenge may show greater insight and understanding than children of comparable age who lack this experience. Finally, children and young people are still dependant on their parents/carers (and their clinicians) to define the meaning of the situation they are in, and so the quality of those relationships may also influence the young person’s capacity for autonomous decision-making. (See Hein et al 2015).

The paper referred to at the end of this passage – Hein et al 2015 – is fundamentally a review/discussion paper published in BMC Medical Ethics exploring reasons for the lack of progress in assessing children’s decision making competence and, like the contents of the service specification, offers little by way of practical or systematic guidance on the process of obtaining informed consent for medical treatments, largely because the evidence to support such a systematic approach just isn’t there are the present time, hence this summary observation.

The discussion on children’s competence to consent to treatment and clinical research has made little advancement the last decade. The ongoing debate involves many normative and developmental aspects and has not yielded progress in practical implementation.

So that’s the background to the question of consent as it relates to gender identity services at the Tavistock Clinic but there is, in all this, one rather puzzling aspect, as Legal Feminist notes:

The question I find interesting here isn’t really a legal question. It is this: what is it that’s special about treatment with puberty blockers that makes the Tavistock think that parental consent isn’t good enough? If a child needs a vaccination to reduce the risk of a potentially serious childhood disease, parental consent is good enough. If a child needs a filling to deal with tooth decay, or an extraction to deal with an overcrowded mouth, the same. If a child needs surgery to pin a broken bone, the same again.

Parental consent is good enough for most medical treatment because its necessity or desirability can be established by objective evidence. Tooth decay and broken bones can be seen with an x-ray; the risks of mumps, measles etc. (and the benefits of vaccination) are well-established by epidemiology. But if a child with the body of a girl says she is so sure that she is really a boy that she wants to be treated with puberty blockers to ensure that she doesn’t mature physically as a woman, there no blood test, no visible symptom, no scan, no x-ray that can confirm her condition. How are parents, teachers, therapists and doctors to know whether she is truly trans (assuming for the purposes of argument that there is such a thing – or if even if there isn’t, at least so intractably dysphoric that radical body modification offers her the best hope of a flourishing life); or temporarily caught up in a teenage craze; or expressing distress in response to childhood abuse, homophobic bullying at school, or a traumatic bereavement or abandonment, or the pervasive sexism and misogyny of the society in which she is growing up?

It is not the law that presents an impediment to the use of puberty blockers on the basis of parental consent, rather it is currently the ethical position of the Tavistock Clinic, and NHS GIDs generally, that the informed consent of the child/adolescent must be secured prior to any kind of physical intervention, a position consistent with current international guidelines.

Criteria for puberty suppressing hormones

In order for adolescents to receive puberty suppressing hormones, the following minimum criteria must be met:

1. The adolescent has demonstrated a long-lasting and intense pattern of gender nonconformity or gender dysphoria (whether suppressed or expressed);

2. Gender dysphoria emerged or worsened with the onset of puberty;

3. Any co-existing psychological, medical, or social problems that could interfere with treatment (e.g., that may compromise treatment adherence) have been addressed, such that the adolescent’s situation and functioning are stable enough to start treatment;

4. The adolescent has given informed consent and, particularly when the adolescent has not reached the age of medical consent, the parents or other caretakers or guardians have consented to the treatment and are involved in supporting the adolescent throughout the treatment process.

(Source: WPATH Standards of Care V7, p19)

Does any of this raise a question that is capable of being litigated without embroiling the courts in complex question of medical ethics of the kind it may well reluctant to entertain and rule upon?

There is, perhaps, one thing.

Gillick competence is not a generic standard for determining whether or not a legal minor, in this case someone under 16 years of age, is capable of giving informed consent for medical treatment. It is, specifically, a standard relating to situations in which a child/adolescent seeks to obtain medical advice, information and treatment without the knowledge or consent of a parent/guardian.

Does it necessarily follow that this standard should also be applied in situations where parental support and consent is available to the child, not in the sense that parental consent can be taken in lieu that of the child but rather the presence of active parental support in some way that modifies the level of competence that the child needs to demonstrate in order to establish that it is capable of giving informed consent?

As a matter of principle I don’t believe we can or should compromise on the Gillick standard but that doesn’t mean that this is not an arguable, or litigable point and it may be one that’s somewhat easier to pursue in court than that of challenging the ethical position of the Tavistock on informed consent.

Legal Feminist neatly sums up this entire shit-show, as follows (and do read her full piece, it really is fascinating).

If the Good Law Project gets the High Court’s permission to pursue this, the likely result will be that the Tavistock is forced to explain – in detail, and in public – the reasons why it “cannot conceive of any situation in which it would be appropriate to to administer blockers on a patient without their consent.” That will shine further light on the absence of any convincing evidential basis for these treatments, and on the startling philosophical underpinnings of the GIDS’ practice. It promises to be a bruising encounter for both parties.

And I’m inclined to agree, so much so that I’m thinking of starting a crowdfunder to buy Maugham a copy of The Monkey’s Paw, which is what I suspect this proposed litigation may rapidly turn into.

One thought on “Why Jolyon Maugham should stick to battering foxes

  1. The transman who claimed to have been given PBs at 17 is clearly confused. Seventeen is extremely late for female puberty; if she had really not experienced any pubertal development by then, she would have been referred for investigation.
    What she was prescribed was a CSH, to stop female hormone production.

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