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Enter the Wokeness

Enter the Wokeness

Old Oct 8th 2020, 2:48 pm
  #1066  
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Default Re: Enter the Wokeness

Originally Posted by Bipat View Post
The issue of a child giving consent to a medical procedure was dealt with by the House of Lords in the Gillick v West Norfolk and Wisbech Area Heath Authority [1986].
Briefly it was 'decided' that if a child was judged 'capable' of giving consent to a medical procedure they could do so. (The case mostly concerned consent to abortion and being given contraceptives without parental knowledge.)
I would think that most 16 year old of normal abilities would be judged 'capable' of giving consent.

(Another different case ruled that children could not refuse life saving treatment)
...which is precisely why I highlighted that the case currently before the courts could upset existing precedent if the judges find for the plaintiffs. I had forgotten the specifics of the Gillick case. I'm reminded now that the case did not concern abortion rights directly, nor was it, at first, about whether a child could consent: Gillick's approach was that a medical professional prescribing birth control pills to a minor (always a girl, by the way, Victoria Gillick had no case to suppress the sale of condoms to boys, becuase that does not involve consent decisions and medical intervention) could be considered to be encouraging sex with a minor. The House of Lords, where the case ended up, made a very nuanced judgement that is known now as the "Gillick Competence" - a test of whether a minor "achieves sufficient understanding and intelligence to understand fully what is proposed." That case set a binding precedent. In the current case, there would have to be either a very narrow judgement that hormonal treatment for gender dysmorphia is an exception to that precedent, or the case will be bound for appeal post-haste. Of course, in discussions of both puberty-suppression hormones and pregnancy-prevention hormones there's a matter of urgency to consider. Delay in decision-making can make the decision moot and the situation that much more fraught.
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Old Oct 8th 2020, 3:44 pm
  #1067  
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Default Re: Enter the Wokeness

Originally Posted by Steerpike View Post
I agree that this is not a cut-and-dried issue and 'child abuse' is a very poor way to categorize the issue. In my mind, the 'consent' element applies to allowing something to be 'done', not wanting something to be done. In other words - if a bunch of doctors and psychologists all recommended a 'procedure' or 'treatment', then there is a valid discussion as to whether a minor child has a right to object. But you can't flip that around and say the same logic applies to a minor child 'wanting' a procedure or treatment.

Anecdotally, when I think back to my days as a 16 year old ... boy was I messed up emotionally. I don't think I was in any state of mind to make far-reaching decisions about anything (though at the time, I thought I knew everything). I remember thinking life was not worth living when some relationship came to an end.
It is indeed fraught. Because there is such an activist trans community, there are many that encourage and "support" teens to undertake therapy when in fact the underlying issue is more akin to depression or body dysmorphia and other adolescent conditions. Admittedly, there are true cases of gender dysmorphia, but the approach to transitioning has to be extremely cautious, otherwise it is really is tantatmount to child abuse. Some shocking leniancy exists in the United States (all under the fanatcism of trans rights, of course). Fascinating podcast on this if you are interested...?
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Old Oct 8th 2020, 3:49 pm
  #1068  
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Default Re: Enter the Wokeness

Originally Posted by Oakvillian View Post
...which is precisely why I highlighted that the case currently before the courts could upset existing precedent if the judges find for the plaintiffs. I had forgotten the specifics of the Gillick case. I'm reminded now that the case did not concern abortion rights directly, nor was it, at first, about whether a child could consent: Gillick's approach was that a medical professional prescribing birth control pills to a minor (always a girl, by the way, Victoria Gillick had no case to suppress the sale of condoms to boys, becuase that does not involve consent decisions and medical intervention) could be considered to be encouraging sex with a minor. The House of Lords, where the case ended up, made a very nuanced judgement that is known now as the "Gillick Competence" - a test of whether a minor "achieves sufficient understanding and intelligence to understand fully what is proposed." That case set a binding precedent. In the current case, there would have to be either a very narrow judgement that hormonal treatment for gender dysmorphia is an exception to that precedent, or the case will be bound for appeal post-haste. Of course, in discussions of both puberty-suppression hormones and pregnancy-prevention hormones there's a matter of urgency to consider. Delay in decision-making can make the decision moot and the situation that much more fraught.
Actually the Gillick case concerned under sixteens and consent but other issues, parental rights etc were also discussed also in lower courts.
Lord Scarman and Lord Fraser both gave opinions regarding 'competence' of the child to consent to treatment which were/are used by the medical profession. (Fortunately it did not prevent consulting social services when thought necessary.)
(GPs soon had a number of 14-15 year olds turning up and asking for 'the pill' but GPs could make their own age restrictions.)

(I used the case as the subject of a thesis --many years ago and argued the case was wrongly decided!---In spite of the professor reading the outline and telling me going against 'the modern views' of the department would not get me good marks---I persisted---and only just about passed! ---In a huff after---I threw away my copy ---so have forgotten most of my points!)

If you count the views of all judges involved --High Court, Appeal Court, House of Lords----more judges were for Mrs Gillick than against.


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Old Oct 8th 2020, 4:06 pm
  #1069  
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Default Re: Enter the Wokeness

Originally Posted by Oakvillian View Post
"Child abuse" is a very strong term in this context. Which side, plaintiff or defendant, to you see as being guilty of child abuse in this case? Is it the defendant NHS Trust who is providing the treatment requested by the child, or the plaintiff who seeks to prevent access to this particular treatment from children with gender dysmorphia? There are, of course, much broader implications to the case, inasmuch as a verdict for the plaintiffs could set a precendent for any informed consent of any child under the age of 18 for any medical procedure suddenly being called into question. There are many, many examples - primarily in reproductive and sexual health, but also in such areas as inoculation against vaccine-preventable diseases - where there is well established case law that it is in fact the withdrawal or refusal of consent by an adult that is the greater harm to the child. To find for the plaintiffs in this case would be a surprising turn of events, I feel, but because this is such an emotionally charged issue it's hard to know which way it will fall.
That would be the plaintiff, I don't usually associate the NHS or the medical profession with child abuse. Given that there is alwyas uncertainty on whether witholding treatment would harm or benefit the child then the decision has to consider scale of Type I or Type II error that would be made. In this scenario a "confused person" wanting and receiving treatment could be construed as the false positive (T1); and a "genuine" trans person denied treatment could be considered the false negative (T2). From what I have heard (Deborah Soh) the states show that false positive scenarios exceeds the false negatives. This is why we should be concerned.
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Old Oct 8th 2020, 4:27 pm
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Default Re: Enter the Wokeness

Originally Posted by Bipat View Post
Actually the Gillick case concerned under sixteens and consent but other issues, parental rights etc were also discussed also in lower courts.
Lord Scarman and Lord Fraser both gave opinions regarding 'competence' of the child to consent to treatment which were/are used by the medical profession. (Fortunately it did not prevent consulting social services when thought necessary.)
(GPs soon had a number of 14-15 year olds turning up and asking for 'the pill' but GPs could make their own age restrictions.)

(I used the case as the subject of a thesis --many years ago and argued the case was wrongly decided!---In spite of the professor reading the outline and telling me going against 'the modern views' of the department would not get me good marks---I persisted---and only just about passed! ---In a huff after---I threw away my copy ---so have forgotten most of my points!)

If you count the views of all judges involved --High Court, Appeal Court, House of Lords----more judges were for Mrs Gillick than against.
That's not how judgements work. The only decision that matters is that of the highest court to have heard the case. It doesn't make one iota of difference how many high court and appelate judges disagreed with Scarman, Bridge, and Fraser. I'm frankly unsurprised that your professor advised against taking issue with the Law Lords' decision. Especially in the case of Gillick, who had some really quite peculiar views about the private lives of her daughters. She clearly allowed, throughout her journey through the courts, her Catholic religious mores to cloud her juegement of what is accaptable.

I don't understand why you underlined "under sixteen" in your post. I am clearly aware that the case involved minors, many of whom are indeed under 16. For sure, 16 is the age of consent for sexual acts in the UK, but that (a) doesn't stop children under 16 being sexually active, and (b) doesn't magically obviate the need for sensible discussions about birth control in under-16s. If one's parent is as clearly religiously blinkered as Mrs Gillick, then there must be an opportunity for the child to have that conversation with their doctor over the wishes of their parent. I really can't see any circumnstances in which it would be appropriate for a parent to deny a child access to contraception. Children are not the property of their parents.

There was a strong suggestion in the late 90s (but I know it was the subject of a series of libel cases, which were ultimately settled with an apology) that the Gillick case indirectly led to a significant rise in teenage pregnancies in England. It's got to be hard to argue that that is a good outcome, regardless of your moral stance on abstinence and contraception.
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Old Oct 8th 2020, 4:34 pm
  #1071  
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Default Re: Enter the Wokeness

Originally Posted by Shard View Post
That would be the plaintiff, I don't usually associate the NHS or the medical profession with child abuse. Given that there is alwyas uncertainty on whether witholding treatment would harm or benefit the child then the decision has to consider scale of Type I or Type II error that would be made. In this scenario a "confused person" wanting and receiving treatment could be construed as the false positive (T1); and a "genuine" trans person denied treatment could be considered the false negative (T2). From what I have heard (Deborah Soh) the states show that false positive scenarios exceeds the false negatives. This is why we should be concerned.
I'm relieved. I thought from the way I read your earlier comment that you were leaning in the opposite direction. And of course, you're right that there is a possibility for errors in both directions, which is why it should be important - both in teh UK and, especially, in the US where it's all driven by for-profit businesses and the moral compass is sometimes rather cloudy - that proper counselling and psychiatric evaluation should be a part of the process. The capacity for error will never be entirely eliminated, but minimising it is better, IMO, than preventing the practice altogether. The court case speaks to the same issue that the Gillick case did: whether a minor child can achieve a level of competence and understanding to make such a far-reaching and consequential decision against the wishes of their parents or guardians. None of it is easy, and I'm glad I'm not on the bench trying to decide this one.
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Old Oct 8th 2020, 5:14 pm
  #1072  
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Default Re: Enter the Wokeness

Originally Posted by Oakvillian View Post
1) That's not how judgements work. The only decision that matters is that of the highest court to have heard the case. It doesn't make one iota of difference how many high court and appelate judges disagreed with Scarman, Bridge, and Fraser.
2) I'm frankly unsurprised that your professor advised against taking issue with the Law Lords' decision. Especially in the case of Gillick, who had some really quite peculiar views about the private lives of her daughters. She clearly allowed, throughout her journey through the courts, her Catholic religious mores to cloud her juegement of what is accaptable.

3) I don't understand why you underlined "under sixteen" in your post. I am clearly aware that the case involved minors, many of whom are indeed under 16. For sure, 16 is the age of consent for sexual acts in the UK, but that (a) doesn't stop children under 16 being sexually active, and (b) doesn't magically obviate the need for sensible discussions about birth control in under-16s. If one's parent is as clearly religiously blinkered as Mrs Gillick, then there must be an opportunity for the child to have that conversation with their doctor over the wishes of their parent. 4) I really can't see any circumnstances in which it would be appropriate for a parent to deny a child access to contraception. Children are not the property of their parents.

There was a strong suggestion in the late 90s (but I know it was the subject of a series of libel cases, which were ultimately settled with an apology) that the Gillick case indirectly led to a significant rise in teenage pregnancies in England. It's got to be hard to argue that that is a good outcome, regardless of your moral stance on abstinence and contraception.
1) I do know that! (It was just a mention of the views of particular judges).

2) It was a general view that parents are responsible for their children, and many young teenagers are not always capable of knowing what is best for themselves and their future.
You must agree that the young do not always act in their own best interests with sometimes disastrous results. Doctors prescribing do not always know the real circumstances and children do lie you know!

3) The Gillick case concerned under 16s.
In English law ---at 16 'children are assumed to be competent' and can give consent to their own treatment.
The cases described above both were 16.

4) There are cases where a young child is being abused/ in an unsafe relationship/has other health issues and action by social services is more appropriate. It is not a case of 'denying contraceptives' --more that parents should be able to protect of their child's safety.
Parents are responsible for their children and have a duty to protect them from harm if possible.

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Old Oct 8th 2020, 6:43 pm
  #1073  
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Default Re: Enter the Wokeness

Originally Posted by Oakvillian View Post
I'm relieved. I thought from the way I read your earlier comment that you were leaning in the opposite direction. And of course, you're right that there is a possibility for errors in both directions, which is why it should be important - both in teh UK and, especially, in the US where it's all driven by for-profit businesses and the moral compass is sometimes rather cloudy - that proper counselling and psychiatric evaluation should be a part of the process. The capacity for error will never be entirely eliminated, but minimising it is better, IMO, than preventing the practice altogether. The court case speaks to the same issue that the Gillick case did: whether a minor child can achieve a level of competence and understanding to make such a far-reaching and consequential decision against the wishes of their parents or guardians. None of it is easy, and I'm glad I'm not on the bench trying to decide this one.
The issue of hormone therapy would seem way, way more serious / significant than birth control, would it not? If someone under 16 wants birth control, and gets it, I don't see much in the way of long-term harm (though maybe such a powerful drug is inappropriate for a still-developing body ... not sure about that part) but if an under 16 year old wants hormone therapy for gender issues, that seems infinitely more serious and long-term in its consequences. Again, looking back at myself at that age, I just cannot imagine comprehending the scope of the topic.
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Old Oct 8th 2020, 6:56 pm
  #1074  
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Default Re: Enter the Wokeness

Originally Posted by Steerpike View Post
The issue of hormone therapy would seem way, way more serious / significant than birth control, would it not? If someone under 16 wants birth control, and gets it, I don't see much in the way of long-term harm (though maybe such a powerful drug is inappropriate for a still-developing body ... not sure about that part) but if an under 16 year old wants hormone therapy for gender issues, that seems infinitely more serious and long-term in its consequences. Again, looking back at myself at that age, I just cannot imagine comprehending the scope of the topic.
There are potential harms in either eventuality. If a teen wtih gender dysmorphia would genuinely be a candidate for the hormone therapies, and it were denied because the law says they can't have that treatment, what would that do to the individual? Teenage suicides linked to sexual and gender identity crises are all too real. I'm very aware that many teenagers have other psychological issues to address, and understand when you say that you wouldn't have trusted yoru teenage self with such a decision. But there are those for whom, by 15 or so, have been dealing with gender dysmorphia for years, and it is definitively not a transient teenage thing.

Not to mention, of course, the discussion of contraceptives is much more to do with the harm of not prescribing them. Unwanted teenage pregnancy is a pretty big challenge as well. I don't have data to hand, but my understanding is that pregnancy in early teenage years is more prevalent among children of parents who object to sex ed, reproductive health advice, and contraception, as a matter of religious dogma.
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Old Oct 8th 2020, 7:06 pm
  #1075  
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Default Re: Enter the Wokeness

Originally Posted by Oakvillian View Post
There are potential harms in either eventuality. If a teen wtih gender dysmorphia would genuinely be a candidate for the hormone therapies, and it were denied because the law says they can't have that treatment, what would that do to the individual? Teenage suicides linked to sexual and gender identity crises are all too real. I'm very aware that many teenagers have other psychological issues to address, and understand when you say that you wouldn't have trusted yoru teenage self with such a decision. But there are those for whom, by 15 or so, have been dealing with gender dysmorphia for years, and it is definitively not a transient teenage thing.
...
Right, so I guess I'd go with 'trust the experts' and hope that there would be strong agreement that the case is very strong. In other words, it's not 'what the child wants', it is what the experts agree is the best course of action.
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Old Oct 8th 2020, 7:32 pm
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Default Re: Enter the Wokeness

Originally Posted by Steerpike View Post
Right, so I guess I'd go with 'trust the experts' and hope that there would be strong agreement that the case is very strong. In other words, it's not 'what the child wants', it is what the experts agree is the best course of action.
Indeed, which brings us back to the case Shard mentioned. Where the child agrees with the experts, there's no issue; the difficulty lies where they disagree. In the case of the now 23-year-old plaintiff, "the experts" agreed with the then-teenaged-girl that puberty-suppressing therapy was appropriate for her, but she subsequently decided that it was had not actually been the answer to her difficulties. So the argument simply comes down to whether the medical people acted at the time in good faith and in the best interests of their patient. Fof the other plaintiff, the mother of an autistic child, there is clearly a more complex set of circumstances to unravel. I imagine that there are questions around whether the "Gillick competency test" can be met in this instance, and that there may be some very specific reasons why this patient may or may not be able to give informed consent. But in neither case can I see that the public interest would be served by overturning that Gillick decision, so I'm struggling to see why this case has been brought at all. Perhaps the Guardian article is missing something, but I don't understand what the plaintiffs are hoping to achieve.
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