O v P & Anor
[2024] EWHC 1077 (Fam)
Transactual CIC & Anor, R (on the application of) v Secretary of State for Health and Social Care & Anor
29 July 2024
[2024] EWHC 1936 (Admin)
High Court
The government banned the prescription of puberty blockers for children with gender dysphoria except in very limited circumstances. A court case challenged this ban, arguing the government didn't follow proper procedures and violated the rights of transgender youth. The court ruled in favor of the government, citing concerns about safety, lack of evidence showing the treatment is helpful, and that the government has the right to make decisions on healthcare policy.
Key Facts
- •The Claimants challenged the lawfulness of secondary legislation limiting the prescription of puberty blockers to children with gender dysphoria.
- •The secondary legislation included an emergency order (SI 2024/727) and regulations (SI 2024/728).
- •The First Claimant is a Community Interest Company, and the Second Claimant is a 15-year-old transgender girl.
- •The Claimants argued the government acted unlawfully by using an emergency procedure without proper consultation and breached Article 8 ECHR.
- •The Defendants argued the emergency procedure was justified due to risks associated with overseas prescribing and the Cass Review's findings.
- •The Cass Review highlighted significant risks and limited benefits of puberty blockers and recommended they only be prescribed under a research protocol.
- •GenderGP, an online provider, was criticized for unsafe practices.
- •The government's decision was supported by cross-party consensus in Parliament.
Legal Principles
Emergency procedure under section 62(3) Medicines Act 1968 requires consultation unless essential to avoid serious danger to health.
Medicines Act 1968, section 62(3)
If consultation is undertaken voluntarily, it must be done properly (Gunning principles).
R v Brent London Borough Council, Ex p Gunning (1985)
A common law duty to consult cannot be implied where there is a statutory exemption, as in the emergency procedure under section 62(6) and 129(6) Medicines Act 1968.
Medicines Act 1968, section 62(6) and 129(6)
Article 8 ECHR is engaged by issues of gender identity, but the state has a margin of appreciation in healthcare policy decisions.
WW v Poland (Application no. 31842/20), R (Condliff) v North Staffordshire PCT [2011]
Where Parliament confers rule-making power without an express duty to consult, courts generally will not impose additional procedural safeguards (Bapio principle).
R (Bapio) v Secretary of State for the Home Department [2007]
The precautionary principle can be applied when assessing danger under section 62 MA 1968, particularly when there is scientific uncertainty.
R (National Association of Health Stores) v Department of Health [2005], Alpharma Inc v Council of the EU T-70/99 [2002]
Outcomes
Claim dismissed.
The court found the government's decision to use the emergency procedure was rational, given the Cass Review's findings, the risks associated with overseas prescribing, and the need to act quickly to prevent harm to vulnerable children.
Ground 2 (insufficient consultation) dismissed.
The court held that no consultation occurred before the 'in-principle' decision and that the statutory exemption for emergencies applied.
Ground 3 (breach of Article 8 ECHR) dismissed.
The court found no legal obligation to consult individuals before making legislation affecting Article 8 rights, and the government's decision fell within its margin of appreciation.
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