AC-2024-LON-001142 - [2025] EWHC 2015 (Admin)

There is a wider context to the challenges pursued in this case, which relates to the treatment of children aged 16-17 who experience gender dysphoria or gender incongruence. This is an area of controversy, which raises moral and ethical issues as well as questions as to the correct approach to treatment from a clinical medical perspective. It is also a matter that has been the subject of both litigation and policy review, and the legal and regulatory landscape, which has already undergone significant changes in recent years, continues to evolve. Certain aspects of this background are relevant to the challenges in the present proceedings, and it is therefore helpful to first set out some of the key events that form the context to these claims.

Part of the relevant background relates to the particular controversy which arose in relation to Tavistock GIDS. The service provided by Tavistock GIDS was explained by the Court of Appeal in the case of Bell v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, as follows:

“5.

... Patients with gender dysphoria are referred to Tavistock from all over the country for assessment. There is usually a wait of between 22 and 24 months before they can be seen for a series of assessment appointments. If, following assessment, Tavistock is satisfied that it is medically appropriate to do so, the patient is referred to the paediatric endocrinologists at either University College London Hospitals NHS Foundation Trust (“UCH”) or Leeds Teaching Hospitals NHS Trust (“Leeds”) (together the “Trusts”). A referral takes place only if Tavistock assesses that the child would benefit from treatment and is capable of giving consent to puberty blockers (the first step in any such treatment). Referral requires the consent of the child and of the parents. ... The puberty blocking drug treatment at issue in this case is gonadotropin-releasing hormone agonists. They suppress the physical developments that would otherwise occur during puberty. The next step in treatment, for which UCH and Leeds obtain further informed consent from child and parents, is to prescribe cross-sex hormones and then, in adulthood, consideration of surgery.”

As the Court of Appeal went on to observe, the Divisional Court in Bell (see [2020] EWHC 3274 (Admin)) had found no illegality in the policy or practice of Tavistock GIDS or the Trusts, and had further rejected a claim that the information provided was inadequate for informed consent, albeit expressing concern about the ability of children to understand and weigh that information. That concern had led the Divisional Court to give guidance, recommending that the sanction of the court should be sought before prescribing puberty blocking drugs (“PBs”) to those under 18; the Court of Appeal held it had been inappropriate for the Divisional Court to have given that guidance.

Around the time of the proceedings before the Divisional Court in Bell, in the autumn/winter of 2020, the CQC was carrying out a review of Tavistock GIDS. In its inspection report of January 2021, the CQC went on to rate Tavistock GIDS as inadequate overall.

Following the Divisional Court’s decision in Bell, and before that case reached the Court of Appeal, new referrals for PBs were suspended and a requirement put in place that children who were already receiving that treatment would be reviewed, with a view to seeking judicial sanction. That requirement was changed following the decision of the High Court in March 2021, in AB v CD [2021] EWHC 741 (Fam), which accepted the possibility of parental consent to such treatment, albeit expressing the concern that “the taking of strong, and perhaps fixed, positions as to the appropriateness of use of PBs” might mean it was difficult for a parent to be given a truly independent second opinion, which the court considered must be “a matter for the various regulatory bodies, NHS England and the [CQC] to address when imposing standards and good practice ...” (see paragraphs [122]-[124]). Acknowledging those concerns, an external panel – the Multi Professional Review Group (“MPRG”) – was established, to ensure that procedures for assessment and for informed consent had been properly followed. That did not change following the decision of the Court of Appeal in Bell.

Meanwhile, and prior to the hearing before the Divisional Court in Bell, in September 2020, NHS England commissioned Dr Hilary Cass to chair an independent review and make recommendations on how to improve services for children and young people experiencing gender identity or gender incongruence issues (“the Cass Review”).

In February 2022, the Cass Review published its interim report, which highlighted the inconclusive evidence base as to the appropriate management of children and young people with gender incongruence and dysphoria, the lack of agreement as to the appropriate treatment options, and how the different experiences and positions of the professionals involved might determine their clinical approach. It further made specific observations regarding the service provided by Tavistock GIDS.

The final report of the Cass Review was subsequently published on 10 April 2024; it has received widespread publicity, with strongly held views being expressed on both sides of the debate, often expressed through the prism of a pre-existing perspective on the issues addressed without seeking to engage with the full findings and recommendations of the final report. For these proceedings, I have read the Cass Review final report in full, referring in this judgment to particular parts of the report summary, and to specific recommendations, to convey relevant, albeit selective, parts of the conclusions.

In the final report, the Cass Review noted the very different conclusions drawn by clinicians working in gender clinics about the best way to support young people with gender-related distress, recording:

“There remains diversity of opinion as to how best to treat these children and young people. The evidence is weak and clinicians have told us they are unable to determine with any certainty which children and young people will go on to have an enduring trans identity.” (Cass Review final report, summary [13])

And further observing that this was an area of “remarkably weak evidence”, in which:

“results of studies are exaggerated or misrepresented by people on all sides of the debate”, and where there were “serious questions about the reliability of current [international] guidelines” (Cass Review final report, foreword)

Concluding that:

“current understanding of the long-term health impacts of hormone interventions is limited and needs to be better understood” (Cass Review final report, summary [13])

Given the particular issues raised in this litigation, it is also relevant to note the following observations at [97]-[101] of the summary to the Cass Review final report:

“97.

… consent is more than just capacity and competence. It requires clinicians to ensure that the proposed intervention is clinically indicated as they have a duty to offer appropriate treatment. It also requires the patient to be provided with appropriate and sufficient information about the risks, benefits and expected outcomes of the treatment.

98.

Assessing whether a hormone pathway is indicated is challenging. A formal diagnosis of gender dysphoria is frequently cited as a prerequisite for accessing hormone treatment. However, it is not reliably predictive of whether that young person will have longstanding gender incongruence in the future, or whether medical intervention will be the best option for them.

99.

In addition, the poor evidence base makes it difficult to provide adequate information on which a young person and their family can make an informed choice.

...

101.

Although young people often express a sense of urgency in their wish to access medical treatments, based on personal experience some young adults have suggested that taking time to explore options is preferable. The option to provide masculinising/feminising hormones from the age of 16 is available, but the Review would recommend an extremely cautious clinical approach and a strong clinical rationale for providing hormones before the age of 18. This would keep options open during this important developmental window, allowing time for management of any co-occurring conditions, building of resilience, and fertility preservation, if required.”

These provide context for the Cass Review recommendations, as follows:

“Recommendation 8

NHS England should review the policy on masculinising/feminising hormones. The option to provide masculinising/feminising hormones from age 16 is available, but the Review would recommend extreme caution. There should be a clear clinical rationale for providing hormones at this stage rather than waiting until an individual reaches 18.”

“Recommendation 9

Every case considered for medical treatment should be discussed at a national Multi Disciplinary Team (MDT) hosted by the National Provider Collaborative replacing the Multi Professional Review Group (MPRG).”

The impact of the Cass Review has been significant; as the Master of the Rolls recorded in O v P,

“18.

... (i) the Cass Interim Review in 2022 led to the closure of the Tavistock clinic that had been in issue in Bell v. Tavistock; (ii) on 12 March 2024, NHS England published a clinical policy concluding that there was not enough evidence to support the safety or clinical effectiveness of puberty blockers to make the treatment routinely available (outside a research protocol); (iii) ... NHS Scotland had announced ... that persons under 18 would not be prescribed cross-sex hormones; (iv) on 21 March 2023 [this must in fact be a typographical error; the relevant date is 21 March 2024], NHS England published a clinical commissioning policy laying down stringent eligibility and readiness requirements to be met before cross-sex hormones could be administered to those over 16; (v) on 9 April 2024, NHS England wrote to all NHS gender dysphoria clinics asking them to defer offering first appointments to those under 18 “as an immediate response to Dr Cass’s advice that ‘extreme caution’ should be exercised before making a recommendation for [cross-sex hormones] in [children]”; (vi) on 10 April 2024, the Cass Review was published; and (vii) on 11 December 2024 ... the government announced that the temporary embargo on the use of puberty blockers would be made indefinite (subject to a review in 2027).”

I pause at this stage to note that although the claimants were initially concerned that IP1 would be providing PB treatment, given the decisions made in 2024, that would not be lawful, and it is not something that IP1 provides. In the event, the way in which the case has been advanced before me has focused solely on IP1’s provision of the hormone treatment, which – while still the subject of considerable debate – is lawful.

Expanding (so far as relevant) on some of the references made in O v P:

In May 2024, the Secretary of State for Health and Social Care commissioned Dr Penny Dash to conduct a review into the CQC (“the Dash review”). The Dash review published an interim report on 26 July 2024, with its final report being published on 15 October 2024. The Dash review reached the conclusion that there were “significant failings in the internal workings of CQC”, identifying (relevantly) a “loss of credibility within the health and care sectors due to the loss of sector expertise”, and finding that:

“the current model of generalist inspectors and a lack of expertise at senior levels of CQC, combined with a loss of relationships across CQC and providers, is impacting the credibility of CQC, resulting in a lost opportunity to improve health and social care services.” (Dash review final report conclusions, particularly conclusion 4)

On 7 August 2024, NHS England published its “Consultation report for the service specification: referral pathway for children and young people’s gender service”, stating that (from 1 September 2024) new referrals to the NHS gender service could only be made by NHS paediatric services or NHS mental health services for children and young people. That was seen to be consistent with the Cass Review, which had highlighted the absence of a structured approach for identifying clinical risk within Tavistock GIDS, with the objective for this change stated to be:

“... to increase the quality of the referral information that accompanies the child or young person into the gender service (thereby reducing the risk of unnecessary delay at the assessment stage) and to ensure that the health needs of children and young people are identified and addressed at the point of referral and while they remain on the waiting list for the gender service.”

More recently, on 28 April 2025, at the request of the Secretary of State for Health and Social Care, the NHS established a working group to examine the hormone treatment for children. It was initially envisaged that the working group would deliver detailed advice within eight weeks, but this has been delayed. In the meantime, I understand that an agreement on the definition of “extreme caution” (Cass Review recommendation 8) is still under discussion within the NHS children gender service.