Application by EE's parents seeking i) an injunction under the inherent jurisdiction preventing EE from undergoing any form of gender affirming medical treatment and ii) to instruct an expert psychologist and an expert psychiatrist in those proceedings.
EE is currently accommodated by the local authority and identifies as non-binary and uses the pronouns they/them and would be aged 18 in September 2023. In their statement in the Court of Protection proceedings, the parents asserted that they “strongly object to our daughter accessing medical intervention to change her body”. They contended that EE wearing a breast binder was a form of self-harm and a form of medical treatment with adverse health consequences. The parents expressed particular concern about the prospect of EE undergoing gender affirming treatment in the form of top surgery in circumstances where they submitted that this would be an irreversible procedure for EE. In particular, the parents objected to EE “wishing to present as male” in light of the revised NHS Service Specification based on the Cass Review, which they submitted makes clear that any form of social transitioning in adolescents should not be seen as a neutral act but an active intervention that should only occur with the intervention of qualified clinicians (as set out above, it is apparent that EE does not, in fact, wish to “present as male” but rather identifies as non-binary). Within the foregoing context, the parents submitted that the evidence now before the court was sufficient to demonstrate conclusively that EE lacked capacity to take decisions concerning gender affirming medical treatment, having regard to the gravity and irreversibility of that decision, and justified a final declaration and consequential orders. Both EE and the local authority submitted that where EE was not currently undertaking any form or treatment arising out of their gender identity, and no such treatment was scheduled, the matter for decision for the purposes of s.2(1) of the Mental Capacity Act 2005 was not capable of sufficient definition for the court to determine the question of capacity under the 2005 Act and that, accordingly, it would not be appropriate for the court to make any declaration or order on the parents’ application at this time, whether final or interim.
The Court of Protection refused the application, not being satisfied in this case that there was currently before the court a sufficiently formulated “matter” for the purposes of s.2(1) of the Mental Capacity Act 2005 for the court to determine the question of capacity. Within this context, the court was further satisfied that that expert evidence as to capacity was not necessary to resolve the issues in the proceedings and that it would not be appropriate to grant relief under s.48 of the Mental Capacity Act 2005. In circumstances where the court’s jurisdiction under the inherent jurisdiction ceases during September 2023, the court was satisfied that it was not necessary for the court to permit jointly instructed expert psychological and psychiatric evidence in order to determine the proceedings under the inherent jurisdiction and declined to grant an interim injunction under the inherent jurisdiction.
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