Sunday, 18 May 2014

Who owns the child's body?

Radio 4's review of the Sunday papers around 7.10am this morning alerted me to a Mail on Sunday article about the latest policy of a London clinic. The policy, based on recently-completed research, concerns children who feel they have gender dysphoria. The clinic is the Tavistock and Portman NHS Foundation Trust.

The article (see http://www.dailymail.co.uk/news/article-2631472/NHS-sex-change-drugs-nine-year-olds-Clinic-accused-playing-God-treatment-stops-puberty.html) headlines some of the extreme implications of the clinic's policy in an eye-catching way that will undoubtedly prejudice the casual reader against any such treatment, even though a more discerning reader, who bothers to read the whole piece, can get both sides of the situation. The headlines in large bold type say this:

NHS to give sex change drugs to nine-year-olds: Clinic accused of 'playing God' with treatment that stops puberty
Treatment with controversial drugs is for youngsters trapped in wrong body
Monthly drug injections into the stomach stop puberty and may do harm
Trial in North London was completed - and is set to be rolled out further

And the article then begins thus:

Children as young as nine will be given controversial drugs on the NHS to prepare them for sex-swap surgery, The Mail on Sunday can reveal. The treatment, which halts the onset of adulthood, is aimed at youngsters who believe they are trapped in the wrong body. But critics accused the clinic offering the puberty- postponing injections of ‘playing God’.

And goes on:

Doctors at The Tavistock And Portman NHS Foundation Trust in North London have just completed a three-year trial involving 12- to 14-year-olds, assessing the ‘psychological, social and physical benefits and risks involved’. Because the trial was deemed such a success, medics have decided to make the drugs more widely available – and to much younger children. Yet only five years ago national guidelines stated that treatment for ‘gender dysphoria’ should not start until puberty had finished. 

Many readers will get no further, skipping on to lighter reading. So these words are all they will take on board. (I think the Mail knows this)

My own view is that articles like this one simply reinforce backward-thinking tendencies in British society, and cannot help a child who finds himself or herself in the awful position of not only 'being in the wrong body' but being trapped in a social role that they absolutely know they cannot fit.

It's clearly a careful post-Leveson piece of writing, with toned-down language that supplies - if you do read it through - a certain amount of 'balance' - although I for one think the conflicting quotes of the various people mentioned simply suggest that the whole area is a war zone, with protagonists in a stand-off, and that nothing whatever is agreed or settled. It's the Mail stirring up an old theme in a slightly new way: Sunday-morning fodder for the Average Indignant British Household.

The credits are given to two writers, Sanchez Manning (Manning?) and Stephen Adams, both of them responsible for past articles on health matters. Two Conservative MPs are quoted: Andrew Percy and Mark Pritchard. Both are no-nonsense persons from the provinces (Humberside and Herefordshire respectively), who have a reputation for being outspoken if not downright rebellious. Persons that the Mail clearly thinks are worth quoting. Prominence is given to the medical views of Professor Anne Dreger, described as a 'leading bioethics expert', whatever that is, and who is not a household name. And of Victoria Gillick, Roman Catholic mother-of-ten, described as a 'pro-life campaigner'. She is certainly well-known, responsible for a 1980s legal challenge against a policy that enabled girls under 16 to obtain in some circumstances an abortion without the consent of their parents. She was defeated, and the policy was made binding in England and Wales - see http://en.wikipedia.org/wiki/Gillick_competence. Wikipedia's comments on the 1985 court ruling are worth quoting:

The House of Lords focussed on the issue of consent rather than a notion of 'parental rights' or parental powers. In fact, the court held that 'parental rights' did not exist, other than to safeguard the best interests of a minor. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment.

Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). Lord Scarman's test is generally considered to be the test of 'Gillick competency'. He required that a child could consent if he or she fully understood the medical treatment that is proposed:

"As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed." Lord Scarman

The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. It lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child's evolving maturity; except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision.

Subsequent developments
The decisions in Re R and Re W (especially Lord Donaldson) contradict the Gillick decision somewhat. From these, and subsequent cases, it is suggested that although the parental right to veto treatment ends, parental powers do not ‘terminate’ as suggested by Lord Scarman in Gillick. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a child's (and parent’s) wishes.

A child who is deemed "Gillick competent" is able to prevent their parents viewing their medical records. As such, medical staff will not make a disclosure of medical records of a child who is deemed "Gillick competent" unless consent is manifest.

In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military.

The nature of the standard remains uncertain. The courts have so far declined invitations to define rigidly "Gillick competence" and the individual doctor is free to make a decision, consulting peers if this may be helpful, as to whether that child is "Gillick competent".

Key principle: 'The right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision'. Problems: When is an individual child sufficiently mature? And how do you get people to agree that such a right is correctly enforcible in most circumstances?

The Tavistock and Portman clinic have a website (see http://www.tavistockandportman.nhs.uk/), and parts of it seem very much geared to the enquiring youngster who wants to talk about their issues. Gender is but one of the many things the clinic can help with. In fact I'd say that it's a minor element in the gamut of adolescent troubles handled by the clinic. So far as I can judge, the prime approach is a psycho-theraputic one, and there is no leap into drug treatments at all. Put differently, if the tone and content of the website is to be taken at face value, no gender-fraught child can expect to get their puberty halted with drugs straight off, just for the asking. There will first be discussion and psychological exploration at length. And I dare say the parents will not be excluded, if anything controversial is proposed by way of treatment. Take a look at the clinic's gender identity treatment section here: http://www.tavistockandportman.nhs.uk/care-and-treatment/information-parents-and-carers/our-clinical-services/gender-identity-development.

What is this all really about?

I believe it's a contest between the rights of the child and the rights of the adult. At present the adults (parents, doctors, politicians) are in control and are able to shout the children down if they want to, claiming to be the experts.

And yet for some reason most adults seem to forget what it was like to be a child. And, incredibly, assume an 'I-know-best' attitude about childhood whether or not they were ever successful children. On my own experience, I think nearly all adults have hang-ups from their childhood, and are in no position to claim expert skill (nor even moderate competence) in parenting. If they do happen to have a knack at being Mum or Dad, or at being an inspirational teacher, then it's as much to do with their own innate character as anything else.

Possessing a knack doesn't however turn you into a mind-reader, and it's impossible for any person to experience what another is feeling, and the true nature and depth of it. I greatly value empathy, but empathy isn't the same thing as actually being the suffering person, and understanding completely what is going on. And yet adults say they 'know best for the children' - especially 'their own'.

'Their own'. How can there be ownership? As if children were slaves? There can indeed be shared DNA, but does a birth parent, or legal guardian, own a child? To the practical extent, anyway, of determining what the course of that child's life should be? Certainly to ignore and override what the child protests they want for themselves?

I keep coming back to this point that nobody can literally read a child's mind and say that they know what child feels and truly wants. What then is the best evidence of that? What the child says. And if judged mature and sensible enough to see the outline implications of, say, putting a hold on pubertal development, then shouldn't the child's will prevail?

And if the child's heartfelt pleas are ignored, will the adult accept the consequences? And make redress, if the child's life is screwed up? Why shouldn't children, once no longer minors, have the immediate right to sue their parents (and others) for playing God with their lives?

I sometimes get very resentful about how my life has gone. I feel I was brainwashed into accepting a past gender role - and the social conditioning that went rigidly with it - that was wholly against my true nature. Just look at the damage and hurt and waste of effort that has led to down the decades! I wasn't the only victim, either: my partners and friends were just as much affected. Of course, what's done is done; and no, I don't feel like being litigious, even if it were offered with legal aid assured. The focus now is on making the best of things in the time left, and putting aside all regret.

But you know, it really isn't an exaggeration to say that for most of my life I was someone else's property, and not my own person. I haven't forgotten how it felt to be a child, how - yes - I was loved and cared for and protected; but also how I seethed with frustration at times, not having any say, not having any control, forced to do so much that didn't feel right, my wishes pooh-poohed. No wonder I saw childhood - and still see it - as a survival game, against the odds, a time to get inside a hard shell and grit one's teeth. Simply to hold on for better things one day. And of course some children don't make it.

6 comments:

  1. The power of media to sway opinion while giving the 'appearance' of fairness is so insidious.

    I cannot help but wonder how the simple fact that the treatment suggested will allow the child to become mature enough to make a better informed decision by postponing changes in their bodies could be controversial. Surely the media could easily see and spin that the results of allowing a young transexual's puberty to proceed are difficult, expensive and in many cases impossible to reverse. If one has no sympathy for the child, perhaps the financial issue alone could sell it.

    It is encouraging to see it is at least debatable now that a pre-pubescent person is too immature to make decisions about their own life. Not something you and I could ever have hoped for Lucy.

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  2. No, Hall, we couldn't have hoped for any such debate when we were young: it would have been unthinkable. Indeed, for most of history kids have been told to shut up and do as they're told - or get a flip. I agree it's a good sign that adult omniscience in all things is being challenged.

    Will kids actually be given credit for knowing their own minds in our lifetime? Maybe, but it will take a general change of attitude comparable to men agreeing that women are just as capable as themselves.

    Lucy

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    Replies
    1. Sorry, I meant 'Halle'! The famous SwiftKey word-prediction on my Android device isn't good with names.

      Lucy

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  3. Hehe, mine does that too!
    I wouldn't mind friends feeling comfortable enough to familiarize my name. Feels more natural to me, so Hals, or Hall... I'm happy :)

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  4. Insidious media strikes again!

    12 to 14 is already too late to give treatment which is only there to appease adults. I knew long before I was three that there was some horrible mistake in the world and utterly confused that no "adult" seemed to be able to see it!

    I too am just getting on with what life I have left but the media constantly dragging down public opinion is damaging countless lives of people suffering a well understood medical problem. If the did this to any other group there would be outrage and condemnation but here they are again playing their insidious games...

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  5. Sigh... sadly we have been here before. The Mail ran a similar mis-informed article in 2012. See my post on 25th Feb 2012 if you're.interested.

    Good post,Lucy, with lots to think about concerning children's rights.

    ReplyDelete

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Lucy Melford