The recent case involves an application by EE’s parents, GK and LK, to prevent EE from undergoing any type of gender affirming medical treatment and to instruct an expert psychologist and an expert psychiatrist in those proceedings.

Background

EE is 18 years old and identifies as non-binary, using the pronouns they/them. EE wished to undergo gender affirming surgery. EE’s parents objected to this, stating “we 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 were concerned regarding EE’s desire to undergo ‘top surgery’, which is a surgery that removes breast tissue and reshapes the chest, arguing that this procedure was irreversible and would leave EE with adverse health consequences. EE’s parents requested a final declaration and consequential Orders from the Court of Protection. 

Legal Framework

EE’s parents argued that the NHS Service Specification stated 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, therefore EE did not have the capacity to make the decision to undergo any gender affirming procedure. EE and the local authorities argued that EE was not undergoing any form of gender affirming surgery and no treatments were scheduled for the future, therefore, in line with the Mental Capacity Act 2005, it would not be appropriate for the Court to make any declaration or Order on EE’s parents’ application at the time. 

Conclusion

As a result of the above, the Court of Protection refused the application on the grounds of there not yet being a clear matter as to which the Court could explore and determine the question of capacity under S2(1) Mental Capacity Act (2005). The Court was further satisfied that expert evidence as to capacity was not needed to resolve the issues in the proceedings.