Cass Report and Clinical Negligence
The Cass Report and Clinical Negligence
Dr Hilary Cass’s independent review of gender identity services for children and young people was released last week and delivers a damning verdict. The review provides a sound evidential basis for what many had long suspected, that this area of medicine has been based on wholly inadequate evidence, that guidelines lack developmental rigour and that the focus on gender distress has pushed out wider mental health and/or psychosocially challenging problems such as family breakdown, barriers to participation in school life or social activities, bullying and minority stress. The full report can be read here.
Many have been raising the alarm for years (see previous blog posts regarding detransitioners here and here). In August 2022 the British Medical Journal published a letter from 14 eminent British and Irish clinicians calling for the NHS to set up clinical services to support detransitioners and for the NHS Litigation Authority to prepare for a wave of litigation. The signatories, working together as the ‘Clinical Advisory Network on Sex and Gender' (CAN-SG), raised serious concerns about the medicalisation of gender non-conformity in children and young people. The effects are likely to cause misery for decades to come. Following the closure of the Tavistock clinic and damning criticism from Dr Cass, this feels like a defining moment in the unravelling of the regressive idea promoted by gender ideologists that tomboy girls or effeminate boys are in the wrong body and in need of medicalisation.
Gender Ideology, the core belief being that people have a gender identity distinct from their physical body and that some people have a gender identity mismatched with their biological sex, has been described by CAN-SG as “a non-clinical ideological perspective for which there is little to no empirical support”. Gender Ideology has swept through North American education establishments and liberal institutions, but has found the going much tougher in the British Isles, particularly in the face of resistance from UK and Irish feminists.
Richie Herron, a male detransitioner, recently announced his intention to bring a clinical negligence action. The NHS clinic which provided his treatment has a diagram of a “Genderbread Person” on their website which, among a number of interesting things, shows a multicoloured brain as being the organ associated with “Gender Identity” and two arrows pointing to the words “Woman-ness” and “Man-ness”. Should Mr Herron’s action proceed to litigation it will be interesting to explore what scientific or medical basis the Gender Identity Service is able to offer for the Genderbread Person.
Clinical Negligence and the Law
To succeed in a claim for clinical negligence the Claimant must satisfy the Bolam test (Bolam v Friern Hospital Management [1957] 1 WLR 582) that the standard of care fell below the ordinary and reasonable standards of those who practice in that field of medicine. If a respectable body of medical opinion support the practice or if the Doctor was following a generally approved practice then there is no negligence. It is not enough to show that there are competing schools of thought in the relevant area of medicine or that some medical opinion would be critical, the test is that no responsible body of medical opinion would support the action taken.
The Bolam test leaves medical practitioners with a high degree of discretion for clinical judgment, recognising that there are times when Doctors must use their common sense, experience and judgment and may have good reason to depart from an established practice or standard methods. The test was modified by the Court of Appeal in Bolitho v City and Hackney HA [1998] AC 232 to require that the responsible body of medical opinion must be reasonable and logically supportable. Lord Browne-Wilkinson stated in Bolitho;
“But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible”
This extension of the test for Clinical Negligence is important in the context of claims arising for treatment for Gender Dysphoria. Gender Ideology has captured many healthcare providers and professional bodies such that a doctor may well be able to point to other bodies of clinicians who would have acted in the same way, arguably satisfying the Bolam test. However, can giving puberty blockers and amputating healthy body parts in young and / or vulnerable people really withstand logical analysis? Isn’t it clear to anyone with common sense that this was not a good idea?
Consent to Treatment
Until June 2020, information on puberty blockers on the NHS website said that the treatment was ‘fully reversible’ and ‘can usually be stopped at any time’. However in June 2020 the advice was updated to state
‘Little is known about the long term side effects of hormone or puberty blockers in children with Gender Dysphoria… Although GIDS advises that it is a physically reversible treatment if stopped, it is not known what the psychological effects may be. It's also not known whether hormone blockers affect the development of the teenage brain or children's bones.’
That such a dramatic change in guidance happened, literally, overnight, raises real concerns as to whether patients were put in a position to properly consent to the treatment. The ‘Montgomery’ test (Montgomery v Lanarkshire [2015] UKSC 11) for legal consent to medical treatment in English law is that a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. If patients were not told that the treatment was experimental with little known about long term outcomes then how could they understand the risk and properly consent? The issue of consent is particularly relevant where the patient is young and / or vulnerable. Gillick competence requires that a child has sufficient understanding and intelligence to understand the treatment being proposed. Dr Cass’s findings tend to suggest that even the clinician’s themselves had little understanding as to the long term effects of the treatment.
NHS Guidelines / Responsible Body of Medical Opinion (the Bolam Test)
At paragraphs 45 to 49 of her report Dr Cass states;
… Most guidelines have not followed the international standards for guideline development, and because of this the research team could only recommend two guidelines for practice - the Finnish guideline published in 2020 and the Swedish guideline published in 2022.
However, even these guidelines lack clear recommendations regarding certain aspects of practice and would be of benefit if they provided more detailed guidance on how to implement recommendations.
The World Professional Association of Transgender Healthcare (WPATH) has been highly influential in directing international practice, although its guidelines were found by the University of York appraisal process to lack developmental rigour.
Early versions of two international guidelines - the Endocrine Society 2009 and WPATH 7 - influenced nearly all the other guidelines, except for the recent Nordic guidelines.
Given the lack of evidence-based guidelines, it is imperative that staff working within NHS gender services are cognisant of the limitations in relation to the evidence base and fully understand the knowns and the unknowns.
WPATH is of serious concern. As Genevieve Gluck (co-founder of Reduxx and host of the Women's Voices podcast) has revealed, WPATH members have included participants in a fetish forum called the Eunuch Archives that hosts and produces extreme sadomasochistic written pornography involving the castration and torture of children. The “WPATH files” from journalist Mia Hughes are further cause for concern. The files, obtained from a whistleblower within WPATH, show that WPATH members
“indicate repeatedly that they know that many children and their parents don’t understand the effects that puberty blockers, hormones, and surgeries will have on their bodies. And yet, they continue to perform and advocate for gender medicine” (quote from journalist Michael Shellenberger)
Certainly, given what we now know, a Doctor seeking to rely on WPATH as a responsible body of medical opinion may be on shaky ground.
The crux of the allegation is that GIDS failed to follow evidentially based or otherwise reasonable medical opinion and instead followed the advice of non-medically qualified pressure groups such as Mermaids and Stonewall. A number of journalists deserve credit in revealing the pernicious impact these groups had on GIDS, a far from exhaustive list would include Janice Turner of the Times, Sanchez Manning of the Daily Mail, and former BBC Newsnight Investigations Producer Hannah Barnes in her 2023 book “Time To Think”. This article by Andrew Doyle, written with characteristic punch, is good for the reader in a hurry.
In prescribing puberty blockers and performing surgical amputations of physically healthy body parts in the absence of evidence based guidelines, one has to wonder whether Clinicians were, to quote Dr Cass, cognisant of the limitations in relation to the evidence base and fully understand the knowns and the unknowns. If the clinicians carried on without any appreciation of the limits of the evidence base they may well find themselves unable to defend clinical negligence claims.
Withstanding Logical Analysis (Bolitho)
Starting from first principles, the clinical definition of ‘Gender Identity’ is “a psychological sense of one’s gender” which seems rather circular. Certainly a ‘Gender Identity’ is not objectively observable for the purposes of diagnosis. Gender non-conformity is particularly common in children and young people who are or grow up to be same sex attracted. How can clinicians be confident that they are treating a young person whose Gender Dysphoria will persist into adulthood as opposed to a young person who would be a gay man or a lesbian if left alone?
Dr Matt Bristow, a Psychologist who worked at the Tavistock, has expressed concern that the clinic was in effect providing conversion therapy for gay kids. The CAN-SG letter in the BMJ states;
“Medicalising young people on the basis of unsubstantiated theory is unethical: there are many reasons why they might feel dysphoria, disgust, dissociated or ‘cut off’ from their physical bodies, including internalised homophobia, histories of trauma, cognitive difficulties and mental health problems. Each person suffering from such distress requires space and time to understand their feelings”.
What is the substantive difference between Gender Dysphoria and other psychological conditions which disconnect the mind and body? For example a malnourished patient suffering anorexia would not be encouraged in their subjective belief that they are fat. When a person declares that they feel like the opposite sex, and having lived only within their own natal sex, what is their basis for knowing how it feels to be the opposite sex? What does it mean to live ‘as a man’ as opposed to ‘as a woman’ (and vice versa)? Can gender be defined in any way other than by use of sex stereotypes? If it is reliant on sex stereotypes to define it, isn’t the basis of Gender Identity regressive and restrictive, dependant on gender stereotypes which many, particularly in the feminist movement, have fought vigorously to resist? And is identifying as the opposite sex conceptually any different to identifying as a different race or a different age?
If a person’s ‘Gender Identity’ is independent of their physical body, why are cross sex hormones and / or surgical removal of the penis or breasts the clinical solution? As opposed to mental health treatment and support which may make it easier to live in the body the patient has to begin with and is in reality stuck with. At the current limits of medicine, there are no medical procedures capable of changing the sex of a human body. Surgery, prostheses, and/or cross sex hormones can change the appearance of the body so as to resemble the appearance of the opposite sex, but it does not result in a functioning body of the opposite sex in any real sense. A person born male cannot produce ova, a person born female cannot produce sperm. And to the extent that a patient is promised that transition will change their sex, such a promise is false. Human bodies are not analogous to lego models where parts can be removed or added so as to fundamentally change the design. This point was put with a precision perhaps not permitted in polite society when a group of British women, protesting the participation of male born Laurel Hubbard in the Women’s category at the Tokyo Olympics weight lifting, sang (to the tune of She’ll be coming round the mountain…) “If a person’s got a willy he’s a man”.
Gender Dysphoria in people over the age of 25 is very rare in natal women but relatively more common in adult natal men. Sexologists have long established the link between the erotic desire to crossdress in some heterosexual males and Gender Dysphoria (see Blanchard on Autogynephilia). Blanchard has stated that it is much easier for a natal male to be socially accepted by claiming an innate gender identity rather than be candid that imagining himself as a woman has been an erotic fantasy since puberty. The existence of the Gender Dysphoric child is necessary for the “innate gender identity” theory of Gender Dysphoria to withstand scrutiny. If adult Gender Dysphoria arises from the erotic urge with onset at puberty, then the case for innate gender identity is undermined. Rather than having a mismatched gender identity the Gender Dysphoric child is just a bit different to social expectations, gender non-confirming, more likely to be gay, and any feelings of gender distress likely to dissipate through normal puberty, but certainly not requiring of medical intervention.
A mental health clinician’s duty is to enquire and understand the patient’s thinking, and sometimes to challenge it. It is not to affirm the patient’s self diagnosis without a full consideration of all relevant factors. Treatment which causes significant and severe life-long consequences for the patient should only be provided with a strong evidential base. As the CAN-SG letter states,
“Offering puberty blockers, cross-sex hormones and radical surgery with the implicit promise of almost magical transformation may cause, and has caused, serious harms. With inadequate follow up by GIDS, no comprehensive long-term observational studies, and no reliable clinical trial data, there is simply no evidence on which to base these interventions”.
Conclusions And Further Thoughts
A mental health clinician treating Gender Dysphoria exclusively through the lens of a pathway to transition, excluding alternative treatments and alternative diagnoses, would likely be in breach of their clinical responsibilities. Comorbidities such as autism, internalised homophobia, depression, drug misuse, sexual abuse or trauma need to be properly considered as potential reasons for the patient’s rejection of their sexed body. The clinician has a duty to contain and consider properly the patient’s treatment demands. The clinician must retain the capacity to identify red flags and apply the brakes or change direction. Above all else the clinician has a duty to do no harm, to avoid exposing the patient to additional risks arising from their intervention.
One wonders how we got here. Potentially thousands of gay and autistic children harmed for life by healthcare treatment which doesn’t survive scrutiny. That is perhaps a wider question than a humble lawyer like myself can answer.
However one is struck in all walks of life by the threat of cancellation, social ostracisation and professional ruin which can come from speaking out. Only recently I, along with all members of my representative body, received an email from our Head of Circuit (the leader of Barristers practising in the North West) stating “I am afraid that cynicism about a commitment to EDSM [Equality, Diversity and Social Mobility] has no place in modern society, particularly not for those involved in the administration of justice as we all are”. Even if one were a Barrister feeling a little cynical about EDSM then one might sensibly keep those thoughts to oneself rather than face being cast out of modern society and face the loss of one’s income earned working in the justice system. The all too real threat of professional ruin stifles whistleblowing and eases the way to institutional capture. Certainly, in the face of the consequences set out by my Head of Circuit, you won’t be finding me expressing any cynicism about EDSM. Definitely not. I need this job.
Turning back to the Cass review, in my opinion it is now inevitable that those clinicians who did not dare to be wise and failed to resist being swept along with an ideological tide will soon need to account for their actions in Court.
Peter Harthan
Barrister
14th April 2024
