A video with over 2,000 views on Facebook and which was also sent to us by readers on WhatsApp shows a protester outside an NHS building claiming that it is illegal to vaccinate children without parental consent or a specific court order because of a court case from 2020.
These claims are wrong because the court case they are quoting doesn’t do what the protesters say it does. It was dealing with a very specific and unusual situation about treatment of gender dysphoria and it didn’t set down a general legal rule that applies to Covid-19 vaccinations.
The law decided by the courts says that children under the age of 16 can consent to their own treatment if they're believed to have enough intelligence, competence and understanding to fully appreciate what's involved in their treatment. This is known as Gillick competence. An Act of Parliament means that all 16 and 17-year-olds are entitled to choose for themselves unless there is sufficient evidence to suggest they are not capable of doing so. That’s why it’s legal for the 16 and 17-year-olds who are currently being offered the vaccine to decide whether or not to have the Covid vaccination for themselves.
Why are people talking about a court case on gender identity?
The judgment that the protestors are quoting stressed that when it comes to children giving consent for medical treatment, “any decision is treatment and person specific”. This case was dealing with something the court described as “quite possibly, unique as a medical treatment”.
As the court summarised it, “Bell was born a female and, at about the age of 15, was prescribed puberty-blocking drugs to halt the process of developing female sexual characteristics. She eventually transitioned to a male having taken cross-sex hormones to promote male characteristics and then undergoing surgery.”
Bell was a claimant in the case of Bell v Tavistock NHS Trust that the protesters are quoting. It was about whether or not children can consent to being given puberty blockers after they’ve been diagnosed with gender dysphoria. The BBC reported that she was now accepting of her sex as a female and believes that she should have been challenged more before she consented to the treatment she had.
The court concluded that there would be “enormous difficulties” in a child under 16 understanding the issues and deciding whether to consent to the use of puberty blocking medication. That decision is now being appealed by the NHS Trust.
The reason the protesters quote the case is that they describe giving children the Covid vaccine as “experimental”, and one of the points the court made in concluding that children would be unlikely to be able to consent to gender dysphoria treatments was that it is innovative and experimental.
However, the court’s reasoning was very specific to gender dysphoria. The judgment actually says specifically: “The fact that a treatment is experimental, or that the long-term outcomes are not yet known, does not of itself prevent informed consent being given.”
The claim that Covid vaccines are experimental comes up regularly. All of the Covid-19 vaccines authorised for use in the UK have been shown to be safe and effective in clinical trials.
It’s normal that authorities continue to monitor the safety of these vaccines even after they have been approved. This monitoring happens with all vaccines, including those that have been in use for years, to detect any adverse effects. Just because studies into these vaccines are continuing, doesn’t mean anyone getting the vaccine in the nationwide roll-out is part of an experiment.
Whatever you think about that, legally the court’s point that “any decision is treatment and person specific” is what matters. Offering puberty blockers to individual teenagers diagnosed with gender dysphoria, and offering a vaccine to every teenager above a certain age in the country, are very different decisions. Bell’s case does not change the law that says 16 and 17-year-olds are considered able to consent to medical treatment as can adults, and that younger teenagers are able to consent if they have sufficient maturity, understanding and competence.
Quotes from court judgments are not the law
The High Court’s decisions are the law. But not every word in a judgement creates a new legal rule. Lawyers are trained to read court judgments and work out what new legal rules they actually make, and even lawyers can disagree about that.
What lawyers call the ratio of the case is what becomes legally binding precedent. This means that you can’t quote bits of a court judgment as “the law”. The courts have been making more of an effort to make the law understandable in recent years, and in this case the court provided a two-page summary of its decision for the public.