The children’s hospital in Crumlin, Dublin, was given a “comfort letter” saying it was still indemnified for the continued administration of puberty blockers to patients with gender dysphoria, following a landmark judgment by an English court.
Advice was sought from the State Claims Agency, which handles high-value damages cases taken against public bodies, following which the letter was issued, The Irish Times has learned.
On December 1st last, a three-judge divisional court of the high court in London ruled that the treatment of children and young people with puberty blockers by the Tavistock NHS clinic in London did not comply with the law in relation to informed consent when the patients were under 16 years of age.
Tavistock has been assessing Irish patients with gender dysphoria for almost a decade, with the patients being seen by a visiting team at Crumlin hospital that decides if they should be given puberty blockers.
There are currently “less than 10” young people receiving puberty-blocker treatment at Crumlin who were assessed by Tavistock, according to Children’s Health Ireland (CHI), which runs the Dublin hospital.
In its December ruling, the London high court said oversight was needed for patients under 16 years of age who were to be given what it said was an “experimental” treatment.
In the wake of the judgment, Dr Philip Crowley, national director of the Health Service Executive's quality improvement division, consulted a solicitor from the State Claims Agency.
A "comfort letter" was then issued to Crumlin hospital by Dr Colm Henry, the chief clinical officer with the HSE, according to documents released under the Freedom of Information Act.
In the December 9th letter, Dr Henry noted that referrals to Crumlin occurred through Tavistock, that the clinic was the subject of the London court ruling, and that the hospital had “a small number of young people” who had been assessed as appropriate for hormone-blocker therapy.
“In discussions with the legal representatives of the State Claims Agency it has been made clear that there are no barriers to this practice in Ireland and therefore [Crumlin] will be indemnified by the State Claims Agency in the usual way.”
Dr Henry said the HSE was at an “advanced stage” of providing an “Ireland-based service” for transgender services.
In an earlier email to Dr Henry, Dr Crowley said that while the London ruling did not apply here, it was unlikely that Tavistock would be able to refer further patients for hormone blockers.
In an email to Dr Crowley on December 4th, Caoimhe Gleeson, the national programme manager for the national office for human rights and equality policy in the HSE, said that while English law did not have direct effect here "it is persuasive in this jurisdiction".
“It is possible that the courts here would follow a similar line of thinking if a similar case is taken,” she wrote.
Informed consent
The London case was taken by two women who claimed patients under 18 could not give informed consent for treatment with puberty blockers.
One was Quincy (Keira) Bell (24), who was born female and began taking puberty blockers at the age of 16, and subsequently underwent surgery. She “detransitioned” in her early 20s and now lives as a woman.
The second claimant, who was not identified, was the mother of a 15-year-old girl with autism who was concerned that her daughter might be referred to Tavistock and given puberty blockers.
The clinic argued that court oversight would be an intrusion into the child or young person’s autonomy, but the judges said that it was sometimes the role of the court to protect children, “and particularly a vulnerable child’s best interests”.
The court considered the extent to which those who started on puberty blockers progressed to later treatments that were not reversible, as well as the frequency with which those suffering from gender dysphoria had other conditions, such as autism.
The clinic, which has said it thoroughly assessed all patients it recommended for puberty blockers, is appealing the judgment.
A spokeswoman for CHI said it would continue to engage with the clinic “relating to any new referrals”.
The HSE has been working for some time on the establishment of an Irish team to run its gender dysphoria service.
