Trans people who lack mental capacity – How are decisions relating to transitioning made?

10 September 2021

Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.
 

When a person (P) is unable to make a decision for themselves in relation to a matter because of an impairment of, or a disturbance in the functioning of, the mind or brain, they are described as lacking capacity. The first step will always be to assess whether or not P lacks capacity to make the decision in question, but assuming the assessment confirms this, a decision can only be made on P’s behalf if the decision is in their best interests. Decisions such as to transition are so important and transformative for P’s life, engaging all manner of human rights protections including the right to family and private life, that they should always be referred to the Court of Protection for approval.

The difficulty faced by decision-makers is that there has yet to be reported cases or any formal guidance on how a best interests decision is made in the case of an incapacitated trans person who wishes to transition. However, cases regarding general medical treatment for incapacitated adults provide some helpful commentary, as do recent cases concerning the provision of puberty blockers to under-18s. Together these can help us understand how the Court is likely to approach these decisions.

Under 18s – Gillick competence

The most recent case law which is relevant to transitioning has been focused on under-18s and their use of puberty blockers. The issue for these cases has essentially been whether children, due to their age, have the capacity to consent to these treatments.

In Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274, the High Court decided that it was highly unlikely that a child aged 13 or under would ever be Gillick competent (i.e. have sufficient intelligence, competence and understanding to fully appreciate what is involved) to give consent to being treated with puberty blockers. Likewise, the court expressed doubt that children aged 14 and 15 years could ever have sufficient understanding of the long-term risks and consequences of treatment to give informed consent, and even children over 16 may benefit from continuing judicial oversight where the question of treatment is raised.

Adults - Best interests

When it comes to adults, who lack capacity not due to their age but for another reason, any decision made must be in their best interests.

In Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, Lady Hale explained that, in considering the best interests of P at a particular time, decision-makers must look at their welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what P’s attitude to the treatment is or would be likely to be; and they must consult others who are looking after P or interested in P’s welfare, in particular for their view of what P’s attitude would be.

In order to assess best interests, decision-makers can look to the checklist in section 4 of the Mental Capacity Act 2005:-

1) Working out what is in someone’s best interests cannot be based simply on someone’s age, appearance, condition or behaviour

This overarching safeguard is particularly relevant for trans people. Their outward appearance or behaviour may not reflect the person or how they feel inside so this should never be an immediate barrier to them undertaking the treatment required to align their bodies with their desired gender. Likewise with age – transitioning should never be denied to a trans person simply because they are considered ‘too young’ or ‘too old’ for the treatment or process without a full consideration of what is in their best interests.

2) All the relevant circumstances should be considered

The relevant circumstances will vary from case to case but should include those it would be reasonable to consider. Some which may be relevant in respect of the decision to transition are:

  • The kinds of treatment or intervention required by P

Transitioning may involve, for example, hormone therapy, chest reconstruction or augmentation and genital surgery, but not every trans person transitions medically as well as socially so an assessment of them as an individual will be required.

  • The impact of the proposed treatment or intervention as against P’s current state of health (including mental health)

A full examination with the appropriate medical opinions should be made regarding P’s health and the effects that any of the proposed treatments will have on them. It is also essential to consider the psychological impact of transitioning, as well as the impact of a decision not to allow them to transition.

In B v D (by his litigation friend, the Official Solicitor), The Ministry of Defence [2017] EWCOP 15, although this case concerned stem cell treatment, in carrying out the balancing exercise of the advantages and disadvantages, significant weight was placed on the adverse psychological reaction P may have to being prevented from having the treatment. While stem cell treatment and transitioning are of course very different, this argument would seem particularly poignant for incapacitated trans people – it is well-established that the effect of not being allowed to become the person they feel inside can be incredibly psychologically damaging. The Court noted in B v D that “If [P] is denied the opportunity to have stem cell treatment on the grounds that this is the safer option, there is in my judgment a strong argument that his safety may be bought at too high a price in terms of his happiness and emotional welfare.” The same could certainly be argued in respect of transitioning.

  • The benefits and burdens of the proposed treatment or intervention

In Bell, the Court recognised that the consequences of treatment are highly complex and potentially lifelong and life changing in the most fundamental way imaginable. The treatment goes to the heart of an individual's identity, and is therefore unique as a medical treatment. It is therefore important to weigh up the benefits and burdens in a thorough way.

  • Timescale and waiting periods

Recent statistics have shown that the wait times for Gender Identity Clinics and for receiving treatment can be up to 5 years or longer in certain areas of the UK. This situation has only been exacerbated by the Covid-19 pandemic and the effects are likely to be felt for many years to come. The long waiting periods may be a factor to consider if P’s life expectancy is limited.

  • Any financial implications

If there are any costs involved of seeking private treatment or counselling then these should be explored.

3) Consider whether P will regain capacity

If P currently lacks capacity but may regain the capacity to make decisions regarding transitioning in the future then the decision may be delayed. It would be necessary to assess whether this is likely and, if so, when it is likely to be. The decision-maker would also need to weigh up whether the decision can wait and the impact this could have on P.

4) Encourage P’s participation in the decision

Even if P lacks capacity, they may still express views on transitioning and the treatment involved. The decision-maker should make sure that all practical means are used to enable and encourage P to participate – for example, taking time to explain what transitioning means, what treatment is available, the effect it will have, the changes in how people will perceive P’s gender and so on. Transitioning and the treatment will be complex matters to explain so simple language and illustrations may be necessary depending on P’s cognisance, with concepts and stages broken down as much as possible.

Given the wait times for treatment, if P is deemed able to develop the ability to understand and make the decision for themselves at some time in the near future, it may be prudent to begin the process in the meantime.

5) Consider P’s past wishes and feelings

A decision will always be based on P’s best interests at the time of making the decision but past wishes and feelings can be taken into account. Past wishes and feelings may be recorded in some way, in medical records, legal documents, a diary or through behaviours, or may have been expressed to family and friends who can be called upon. Present wishes and feelings can be gaged through words, or through expressions of pleasure or distress or other emotional responses. Even if the beliefs do not relate specifically to the decision in question, they may be relevant if they were likely to influence the decision.

Members of the trans communities often encourage each other to engage in end-of-life planning, including the preparation of legal documents that state their wishes regarding gender identity and expression in the event of incapacity. Values, beliefs, preferences and important aspects of one’s life can be recorded in an Advance Statement which will help guide a decision-maker when making decisions. For example, an Advance Statement could specify P’s views on transitioning, what treatment they were intending to have, how they wish to dress or look etc.

6) Consult relevant individuals

The decision-maker has a duty to consult with relevant individuals including any family, friends, those caring for P, any attorney/deputy or anyone previously named as someone P wants to be consulted. They should try to find out what the individuals think is in P’s best interests and any information they have on P’s wishes, feelings, beliefs and values.

Decision-makers should be wary of the wishes and feelings of family or friends who may not understand (or who may have demonstrated their disagreement with) P’s identity or wishes. Any reason for not speaking to a relevant individual or for disregarding their views must be clearly recorded.

Practicalities for decision-makers

Some practical steps which decision-makers may wish to consider taking are:

  • Engage an appropriate capacity assessor

A medical professional who specialises in or has experience of treating members of the LGBTQ+ community are likely best placed to assess the capacity of P in these circumstances. It would assist if they are able to understand the perspectives of trans people, perhaps by experience or a history of treating or counselling them, as well as an appreciation of the treatments involved in transitioning, so that they are able to gauge whether P has the capacity to understand what is involved in the decision.

  • Helping P to make the decision for themselves

Specialist professionals can be engaged to help P understand the decision, depending on the level of P’s cognisance. The most effective tools and stimuli should be used to ensure P has the best chance of understanding.

  • Best interests meeting

For complex decisions like transitioning, it may be advised to hold a formal meeting in order to reach decisions about P’s best interests. This is particularly important where the views of relevant individuals conflict and it is necessary to hear from different people.

  • Best interests balance sheet

A balance sheet can be a useful tool when making a best interests decision. The sheet can include any factor or factors of actual benefit, any counterbalancing disadvantages, then the potential gains and losses in each instance and an estimate of the extent of the possibility that the gain or loss might accrue. The sheet can demonstrate to the Court that a full consideration has been made regarding the decision and it hopefully puts the Court in the best position to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. If the account is in "relatively significant credit", it may suggest that the decision is likely to advance the best interests of P. Of course, however, a balance sheet is not the be all and end all – different considerations carry different weights, and the balance sheet should be treated as an aid, not a decider.

Decisions relating to transitioning for incapacitated trans people are complex and should be handled with extreme caution. The MCA and its Code of Practice will always be an appropriate starting point but whether specialist advice is needed should also be considered. Decisions as important as these to a person’s life should always be approved by the Court, but it is hoped that we will see specific guidance develop in the coming years to assist decision-makers.

Further Information

If you have any questions regarding the content of this blog, please contact Liam HurrenSameena Munir, or any member of our Private Client team.

 

About the Authors

Liam Hurren is a Trainee Solicitor at Kingsley Napley, who completed his second seat with the Private Client team in September 2021.

Sameena Munir is a solicitor in the Private Client Department. Sameena has a Court of Protection focus, supporting property and financial affairs deputies. She works closely with clients who lack capacity, with a particular specialism of cerebral palsy and severe brain injury cases. She prepares statutory will and gift applications to the Court, and creates personal injury trusts. She also advises on lasting powers of attorney and probate matters.

 

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