The care and treatment of children and adolescents in relation to their gender identity in the UK (2021)
Section 6: Consent and capacity
There are differences of opinion as to the capacity of children and adolescents to consent to medical interventions in relation to gender identity. Some believe that decisions about capacity should be made on an individual basis, and that with appropriate consultation, discussion, and the provision of detailed and age-appropriate information, many young people reach the standard of competence to make such decisions. They may hold that there is no reason for treating this decision differently from other types of medical treatment to which - if found to have capacity - young people can consent themselves.
Others express doubts about whether children and adolescents have reached an appropriate state of cognitive development and emotional maturity to be able to make this sort of decision. They emphasise the uncertainties surrounding the long-term effects of medical treatment for gender identity; the (in)ability of young people to properly understand how treatment will affect future decisions and desires; and the uniqueness of treatment for gender identity as lifelong and life-changing in a way that few other treatments are.
There are differences of opinion too as to whether the consent of a young person alone should be sufficient, or whether there is a role for those with parental responsibility in addition to, or instead of, that young person’s consent. In the UK, a young person is deemed to have capacity if they are able to weigh the information required and arrive at a decision; understand the nature and purpose of the proposed intervention; understand the risks of any proposed intervention as well as any alternatives; and are free from undue pressure or influence. This is often referred to as the standard of ‘Gillick competence’. If the young person is not deemed to have capacity, the normal position would be that someone with parental responsibility must consent to medical treatment on their behalf. In the context of medical interventions in relation to gender identity the policy of the Gender Identity Development Service (GIDS) in England and Wales has always been that it would be inappropriate to administer puberty blockers to any patient without their consent and on the basis of parental consent alone.
A recent High Court judgement in the UK held that there will be ‘enormous difficulties’ in a child under 16 understanding and weighing the necessary information and being able to give consent to puberty blockers or cross-sex hormones. The Court concluded that it was ‘highly unlikely’ that anyone aged 13 or under could be deemed competent to give consent and ‘doubtful’ that anyone aged 14 or 15 could do so. Furthermore, in respect of young people aged 16 and over, clinicians ‘may well regard these’ as cases requiring consideration by the court. This decision is currently on appeal.
15. Do you think that children and adolescents under the age of 16 have the capacity to consent to puberty blockers and cross-sex hormones? Please expand on your answer.
16. Who should have the authority to consent to and make decisions about medical intervention in relation to gender identity? (E.g. a competent young person alone; a competent young person and those with parental responsibility; those with parental responsibility should be able to consent on behalf a young person who lacks capacity; a court)?
17. Is there anything distinctive about the use of puberty suppressants and cross-sex hormones such that they warrant a different standard of consent compared to other paediatric medical decisions?