The Water In Which Gillick Swims

How The Current Political Environment Influences Clinical Decisions

Mottisfont, United Kingdom. Photo credit: Ben Wicks

In June 2021 the Court of Appeal considered the appeal by the Tavistock against the declarations of the High Court that children under 16 would be unlikely to be “Gillick competent” i.e. unable to offer informed consent to medical transition. Counsel for the Tavistock argued that this was an impermissible interference with the expertise of the relevant clinicians, who could be trusted to make the right decisions for children, as they faced serious ethical and regulatory consequences if they did not. 

While we await the decision of the Court of Appeal it is useful to start testing that assertion and examine more closely the actual environment which informs clinical decisions about medical transition for children. 

Assessments of “Gillick competence” are highly fact-specific and require careful analysis of both the child and the surrounding circumstances. However, this assessment must operate in an environment where a variety of lobby groups and charities assume transition is inherently positive and must never be challenged. The issue of whether or not a child is “trans” has been seen as something that even a very young child may “know” and which should not be questioned, regardless of the age of the child.

To add to this difficulty, there is little doubt that the specialised NHS service provision for gender-variant patients is overwhelmed. Children wait about 18 months just for an initial appointment, and adults wait up to four years. A variety of organisations and charities are therefore lobbying, not unreasonably, for better access to such health care and there is a clear risk that children may turn elsewhere while they wait. 

Selling prescription-only medication to anyone without a prescription is illegal under the 1968 Medicines Act and carries a maximum custodial sentence of five years. However, in 2018 the Daily Mail investigated one company, Quality Health Inc (QHI), which sold oestrogen via its website with no age checks or consultation.  

There appears to be a firm belief among some clinicians and lobbyists, that concern over the impact of medical treatment upon children is illegitimate; instead, it is an “attack” on the “existence and validity” of gender variant children while “watchful waiting” is seen as “doing nothing.” In order to speed up the service for children, there are calls for specialist services to be replaced by GPs, otherwise, this is “discrimination” against “trans youth.”

This is a matter of concern, not merely because this appears to be conflating a political position with the welfare of children, but also due to the growing unease that the recent and rapid surge in children seeking referrals to the Tavistock may indicate at least some element of social contagion rather than a diagnosis of gender dysphoria. Referrals to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust have shown a staggering increase in recent years; from just 97 in 2009/10 to 2,519 in 2017/18. 

From 2014/15 to 2015/16, referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from 3 to 17 years old. As Transgender Trend commented, the majority of the children were registered female at birth. This is an unexplained “flip” from earlier years, where the majority of children registered were male. 

Not only are these figures unexplained but there does not appear much appetite for investigation of what might explain the growing number of female patients, many with autism. Even worse, there is evidence that such investigations are actively stalled. A disturbing example is the recent Employment Tribunal hearing involving Sonia Appleby currently the Named Professional for Safeguarding Children and the Safeguarding Children Lead at the Tavistock, who raised a complaint that Tavistock management directed that safeguarding concerns should not be brought to her attention and clinicians were discouraged from reporting safeguarding concerns to her, over concerns around Ms Appleby’s “transphobia.” Judgment is awaited following a hearing in June 2021.

These stark figures about the increase in female referrals, and the lack of any credible explanation for them, suggest that those who promote the affirmation path need to accept that their adherence requires critical evaluation in order not to dilute the effectiveness of any test of Gillick competence. There is clearly a crucial distinction between those children who are gender dysphoric and who persistently and consistently state a wish to be considered as the opposite sex and those children who experience some lesser “incongruence” – the majority of those children will not persist in “changing sex” once they have gone through puberty.

Lobby Groups, Charities and private practice. 

The lack of effective critical evaluation of the affirmation path appears to stem from the confluence of a variety of powerful influences, including parent activists, lobby groups, charities and clinicians. 

Organisations such as Mermaids and the Gender Identity Research and Education Society (GIRES) have been campaigning since 2000 for the NHS to make medication available to “gender non conforming young people” and to achieve “a more benign approach regarding cross-sex hormones and care for young people who have obtained medication from overseas clinics or via the internet.”

One way to side-step the issue of children’s malleability, vulnerability to adult suggestion and capacity to consent, is a simple decision to make no distinction at all between children and adults. In 2019 the legal adviser to the Mermaids charity attempted to erase entirely any distinction between very young children and those with “Gillick competence’ by commenting:  “…someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.”

Gender GP is an organisation that remains active in the UK. One of its key players is Dr Helen Webberley who was barred from practising in the UK after she was convicted of running an unlicensed practice treating 1,600 transgender patients and gender dysphoric children from her home. She was fined £12,000 in December 2018 after findings that she refused to follow the law and posed a risk to patient safety. Between March 2017 and February 2018 she had operated without a licence after it was refused by watchdog Healthcare Inspectorate Wales. Despite the guidance that cross-sex hormones should not be prescribed to children under 16, Dr Webberley provided hormones to children as young as 12.

Her appeal against her initial suspension in 2018 makes for a sobering read. She lied to investigators and was an “unimpressive witness.” 

In paragraph 104, the Tribunal concluded:

In our view Dr Webberley’s attitude to regulation provides the explanation for the fact that she frustrated the efforts of the LHB to seek to assure itself as to her practice. Dr Webberley does not accept, respect or understand external governance. Her approach throughout has been to resist inspection of her practice to the “nth degree”. She wishes to enjoy the benefits of being a performer included on an NHS list because this provides her with the ability to say she is an NHS GP - which in turn supports her ability to provide online services in private practice. However, she does not wish to be accountable to the Board that is responsible for governance of the MPL. Having seen and heard Dr Webberley give evidence we find that beneath a thin veil of her claimed pursuit for fairness, justice and clarity, her real approach and attitude to the LHB is to resist utterly the notion of accountability. 

Dr Webberley, then moved operations to Spain in 2019 under a “dangerous loophole” in current regulations. The Gender GP service sets out its “consultation” stages, only one of which “information gathering” is compulsory. The rest – “discovery session” “counselling” “family/friends session” and “follow up sessions” are optional although follow up is “highly recommended.” All its services are online to keep costs low. 

Gender GP claims as one of its founding principles that “informed consent is the key to gender-affirming care” but equally that therapy should never be to “challenge” a person’s identity but rather to explore it. 

Hopefully, the Court of Appeal listened carefully to the arguments of counsel for Transgender Trend, who was clear how reliance on ethics and regulation would not help the children who approached Gender GP. But whatever the court’s decision, the signs are hopeful now of more general willingness and openness to discuss these very important issues. 

The Cass Review was commissioned in 2020 to carry out an independent review into gender identity services for young people Its terms of reference focus on the assessment, diagnosis and care of children with gender incongruence and will be wide-ranging in scope. If the Court of Appeal is going to trust clinicians to assess children effectively, let us hope that this Review ensures a landscape where children’s wishes and feelings are effectively explored against only the backdrop of their welfare and best interests, rather than any adult ideology or presumption of affirmation.