If the Tavistock judgment feels unfair on under 16s, that’s because the law does.

The judgment in R v Tavistock came out today, and I’ve been thinking about it a lot. So I thought I would offer my personal reflections, on that case and on some things I’ve been thinking about as regards young people and consent to medical treatment. I am not a lawyer, but I have studied the law in this area- I am more than happy to be corrected.

Briefly, the court was asked to decide whether trans young people under 18 were legally able to consent to medical treatment that would either slow the progress of puberty, or promote the development of characteristics that better match their expressed gender. The court found that:

• 16 and 17 year olds generally could consent in the same way as adults
• For 14 and 15 year olds, the court was doubtful that they could understand the full implications and weigh up all the uncertainties of this treatment.
• For ages 13 and under, they felt that the young person would not be able to consent.

This is an application of existing law. It cannot be stressed enough that this is not new law.

The judgment suggested that, in cases where a person under 16 wanted to go forward to this treatment, the opinion of a court be sought as regards the best interests of the child.

There are obviously huge implications here for the Tavistock GIDS (gender identity disorder service) involved in the case. And on the face of it, this could have huge implications for all sorts of paediatric treatment. However, there are two important reasons why we shouldn’t overstate its wider significance:

1. The court strongly emphasised the unique nature of the treatment in this case, both in that it is, in their view, experimental (having relatively little evidence of effectiveness) and in that it has deep and profound implications for a person’s whole identity. Because competence is not something that someone has globally, but is specific to particular decisions, this increases the standard for competence in this area massively, again, in the court’s view.
2. The court was not asked to decide what should happen if the young person is not competent to consent, but the parents are willing to do so. In practice this is how the vast majority of paediatric practice is legally covered, but the Tavistock explicitly stated that they would never rely on parental consent to embark on this treatment. This is highly unusual.

So in one sense, for the rest of medicine, it’s as you were. However I do think this is an opportunity to stop and reflect on a few things:

Firstly the law holds people under 16 to a far higher standard of understanding regarding their treatment than it does adults. For adults to be deemed competent, they broadly just have to understand the ‘nature and purpose’ of what is proposed: for children (legally defined) the bar is higher. This is not new- Lord Scarman said in Gillick itself “It is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.”. This includes moral and emotional, as well as health issues. This is why the court in this case have raised the bar so much for under 16s, but not for anyone who has had their 16th birthday. The contrast is stark and, as someone who has a 16 year-old son that I cannot trust to boil pasta, feels arbitrary.

The second thing is that consent is not just important when you are planning to give someone drugs, or perform a procedure. Consent pervades medical practice- talking to someone alone, sharing their information, examining them, asking sensitive questions, suggesting therapies… consent law is at the heart of it all. So the 16th birthday becomes a hugely important milestone in the person’s autonomy when interacting with services of all kinds, be they health, educational, or social care. For under 16s, where the young person appears to consent but the parents either do not agree or are not present, this has significant implications which we often skate over in practice. If we are taking what turns out to be invalid consent, and we subsequently get challenged, we may end up exposed.

Thirdly, the test for being competent to consent is the same as that to be competent to refuse. So if a person could have consented on their own to something, then their refusal is valid and must be respected (if you don’t want to respect a valid refusal, you’ll need to go to court). Conversely, if you don’t think someone is competent to consent to something, what you are doing when it looks like you are asking for consent is just asking for their view. And that’s fine- we want as professionals to involve young people in decision-making, whatever the position of the law. But you can’t decide, as we so often do, whether someone has competence on the basis of their answer to an offer of treatment- we need to decide before we ask the question.

I think, personally, that competence is competence- in the same way that it doesn’t matter if you are saying ‘yes’ or ‘no’ to an offered treatment, it shouldn’t matter if you are 15 or 16- the test should be the same.

But until the law changes, we as professionals working with young people need to be careful about consent. Here are the take-home messages:

• For under 16s, the standard for competence is higher than for 16+. They need to be able to understand the moral, emotional and personal implications of treatment in order to consent.
• Most of the time, the presence of parental consent means this doesn’t matter very much.
• If parents are in opposition to a young person’s consent, or are not consulted, be careful about accepting competence at face value without advice.
• If young people are competent, respect their dissent as much as their consent. If a young person is refusing treatment, consider whether you would have consulted their parents as well, had they consented. If not, you may need to respect that refusal till a court intervenes (or in emergencies).

Cycling back to today: The Tavistock will appeal- it may be that they will try to show that 14 and 15 year olds are more competent than the court gives credit for, but the problem is that they would have to be MORE competent than 16 year olds need to be, in order to be able to access this treatment. The Tavistock may also fall back to a position arguing that parents ought to be able to consent on behalf of their children, but unfortunately, having abandoned that ground, they may find it hard to regain it on appeal. We’ll see.

But I can’t end without thinking about all the trans youth, waiting on the GIDS waiting list for an assessment that will inevitably be further away, now that the service needs to build legal action into its pathways, an extraordinary situation for a clinical service. For many of these young people, GIDS is the only help they will ever get- there are huge questions about whether this should be the case, and the rights and wrongs of hormone treatment… but for today, I just feel sorry for these families.