July 2021
Clinical Negligence and Trans Healthcare
20/07/21 15:24
Clinical Negligence And Trans Heathcare
Trans health care used to be a niche area of medicine focused almost exclusively on adult males identifying as female. In recent years, the patient demographic has shifted dramatically, with increasing numbers of teenage girls being referred to NHS Gender Identity Services (GIDS) for treatment.
In 2009, 97 children and young people were referred to GIDS, and in 2011 referrals were roughly 50:50 by natal sex. In 2018 2,519 children and young people were referred, with a natal sex division of 76% to 24% in favour of natal females.
This rapid growth of adolescent females identifying as transgendered has followed a pattern that first emerged in America and has extended to Canada, the UK and many other western European nations.
America in particular has seen a phenomenal growth of gender identity treatment for young natal females. Between 2016 and 2017, the number of gender surgeries for natal females in the USA quadrupled, and by 2017 natal females accounted for 70% of gender surgeries.
However in the UK, difficult questions are starting to be asked, both as to the clinical treatment and the outcomes it achieves.
Bell v Tavistock [2021] EWCA Civ 1363
In Bell v Tavistock the High Court was asked to consider on Judicial Review whether consent can be given by children (under 16s) and young people (16-18) to receive puberty suppressing treatment (‘Puberty blockers’, hereafter ‘PBs’). The Tavistock is the UK’s only NHS run gender clinic for children and young people.
GIDS prescribed PBs for children as young as 10 years old who were diagnosed as suffering from Gender Dysphoria (a condition defined in DSM V ((Diagnostic and Statistical Manual of Mental Disorders)) as ‘clinically significant distress or impairment related to a strong desire to be of another gender’).
The High Court took the unusual step of issuing a declaration that expressed significant doubt as to whether children and young people could be competent to consent to treatment with PBs and went on to recommended that clinicians seek the authorisation of the Court prior to commencing clinical treatment with PBs.
The Court of Appeal allowed the Tavistock’s appeal (Bell v Tavistock [2021] EWCA Civ 1363) on the basis that the High Court had overstepped its role on Judicial Review by imposing its view on capacity to consent which was properly a matter for doctors and clinicians to determine following the established principles of Gillick competence, Gillick v West Norfolk [1985] UKHL 7. The Court of Appeal also criticised the High Court for making findings on disputed issues of fact within a Judicial Review.
There is, however, increasing concern among the medical profession that intervention with PBs fails to result in better clinical outcomes. The Cass review led by Dr Hilary Cass was set up in Autumn 2020 to examine treatment provided through GIDS to children and young people who are questioning their gender identity or experiencing gender incongruence. At the time of writing the outcome of the review is awaited.
There is evidence that Gender Dysphoria usually resolves in the absence of treatment, Gender Dysphoria is more likely to persist with clinical intervention, and that clinical intervention results in long-term and potentially irreversible physical and psychological consequences (see Paul W Hruz MD PHD, “Deficiencies in Scientific Evidence for Medical Management of Gender Dysphoria”, The Linacre Quarterly 20th September 2019). Furthermore studies show a significant proportion of those presenting with Gender Dysphoria have a diagnosis of Autistic Spectrum Disorder (see Holt, Skagerberg & Dunsford 2014, Kaltiala-Heino et al 2015). Concerns are also growing that gender non-conformity in young people, particularly common in those who are same sex attracted, is being medically treated as gender dysphoria in young people who are homosexual.
The Bell case did not examine the treatment in a clinical negligence context, and so did not need to consider whether GIDS was in any breach of its duty of care. However the Bell case has opened a debate principally relating to capacity to consent but more fundamentally whether a reasonably skilled and knowledgeable doctor would prescribe PBs to children and young people reporting Gender Dysphoria.
Keira Bell had her first appointment at the Tavistock at the age of 15. Bell has since said: ‘I was definitely having trouble figuring out my sexuality, and my father was very religious. Maybe I internalised homophobia’.
Commenting on her first appointment with GIDS, Bell said: ‘It felt very brief: a basic history of my development, and relationships and family; what type of friendship groups I had. It was all based on stereotypes’.
Bell now takes the view that ‘stereotypes don’t mean anything, it doesn’t matter if you’re masculine, it’s your biology that makes you a woman, and there are other women like you… There was never anyone telling me to love myself and that I was fine the way I was. It was just “change yourself and you’ll be better”’. (Quotes are taken from Chapter 4 of Trans: When Ideology Meets Reality by Helen Joyce, 2021).
Keira Bell’s account, supported by other detransitioners (meaning those who have ceased to identify as trans and returned to identify with their natal sex), suggests that practitioners at GIDS have followed an affirmative approach to Gender Dysphoria treatment - that once a person declares their gender identity to be different to their natal sex, their expressed gender identity is supported and not challenged.
Certainly in the case of, say, a person coming out as being same sex attracted, there can be no sensible argument against a supportive response accepting of their sexual orientation. But is there a greater need for careful consideration with a teenage girl asserting a trans identity? There has been no increase in natal women in their 30s, 40s and above declaring themselves as trans. The increase has been concentrated among teenage girls and young women.
Academics have highlighted that this is a demographic with a propensity towards psychological conditions spread by peer contagion (meaning a behavioural or psychological influence between an individual and a peer, as opposed, for example, to viral contagion where the passing of a physical virus causes infection). Dr Lisa Littman, Assistant Professor of the Practice at the Brown University School of Public Health, Rhode Island, has produced a peer reviewed research paper indicating that the incidence of teenage girls declaring themselves trans in America follows a pattern consistent with peer contagion. If the sharp increase of trans identity among teenage girls is indeed influenced by psychological peer contagion – a mechanism of transmission similar to eating disorders and self harm – then an affirmative approach to treatment would be unwise.
Recent endocrinology referral numbers would suggest GIDS have become more reluctant to prescribe PBs to young people. Indeed, the Court of Appeal’s decision to overturn the High Court declaration and return the decision making to clinicians may not necessarily lead to PBs become more accessible to young people diagnosed with gender dysphoria. No person under the age of 17 has been referred by GIDS for treatment with an endocrinologist since December 2020 and despite the Court of Appeal’s Judgment it is far from certain that referrals will resume in the same numbers as before the Bell Judicial Review.
The Court of Appeal sounded a warning at paragraph 92 of its Judgment stating;
We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.
Safeguarding concerns
Concerns have also been raised about child safeguarding within GIDS.
Sonia Appleby, the Safeguarding Children’s Lead at the Tavistock clinic, has recently succeeded in an Employment Tribunal claim against the Tavistock. The Tribunal heard that a number of staff brought concerns to Ms Appleby. The concerns included the high numbers of children being referred to Gids, and a worry that some young children are being actively encouraged to be transgender without effective scrutiny of their circumstances. Ms Appleby then reported these concerns to her line manager. After this, instead of addressing the concerns, the trust management attempted to prevent her from carrying out her safeguarding role in what Ms Appleby described as a "full-blown organisational assault”. The ET awarded Ms Appleby £20,000 compensation for damage to her professional reputation. The Tavistock is reported to be ‘considering the ruling carefully’.
Sonia Appleby’s case follows a highly critical ‘whistleblower’ report in 2018 from Dr David Bell, a psychiatrist employed at the Tavistock, expressing concerns that it was fast tracking child patients for treatment with a poor evidential basis.
That a treatment can be shown to have been harmful or unnecessary with the benefit of hindsight is not, of course, sufficient for a clinical negligence claim to succeed. The claimant must show that the treatment was negligent by the standard of what a reasonably knowledgeable and up-to-date practitioner would have known at the time.
It is of interest that up until June 2020, the NHS website information on puberty blockers 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, might suggest that concerns should have been acted upon much earlier.
The Clinical Negligence Context
In a clinical negligence context, and additional to the issue of breach of duty owing to inadequate skill and care, a crucial question will be whether clinical intervention by puberty blocking medication is a treatment capable of withstanding logical analysis within the meaning of Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151 HL. Starting from first principles, “Gender Identity” is a difficult concept to define, the definition given in DSM V 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. Humans are sexually dimorphic and not a species which can change from one sex to another such as clownfish or crocodiles in the non-mammalian world.
What, it might be asked, is the substantive difference between a trans person’s feeling of gender identity as against other psychological conditions such as body integrity identity disorder (often manifested as the desire to have a healthy limb amputated)? 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 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 reproductive organs and secondary sex characteristics such as female breasts the clinical solution, as opposed to psychological treatment which may make it easier to live in the body the trans person has to begin with. Gender reassignment surgery does not, in a biological sense, change a body from one sex to another, human bodies are not analogous to lego models where bits can be removed or added on to fundamentally change the design. These are questions which clinicians should consider with the greatest of care.
Unhelpfully some trans rights activists (who may or may not be representative of the broader views of trans people) have responded to such questions by accusations of transphobia and bigotry rather than engagement, see the campaign against Professor Stock, author of "Material Girls" and Lecturer in Philosophy, which led to her resignation from Sussex University. Thus far the argument has largely been fought between trans rights activists and “Gender Critical” feminists - i.e. those who believe that biological sex is immutable and that natal males identifying as females should not be permitted access to women’s hospitals, prisons, and safe spaces or allowed to compete in women’s sports. Many on the Gender Critical side of the argument were reluctant to speak freely for fear of employment consequences. However, the recent EAT Judgment in Forstater v CGD held that Gender Critical beliefs were worthy of protection within the meaning of s.10 Equality Act 2010 and it might reasonably be hoped that the EAT ruling serves as a foundation for a more open and constructive debate around these questions.
Conclusion
Female detransitioners can suffer a loss of fertility, loss of ability to achieve sexual pleasure, and in some cases may have undergone double mastectomy of physically healthy breasts. Many clinical negligence practitioners have looked on with interest at the Bell Judicial Review and Sonia Appleby’s ET claim and anticipate civil actions where issues of consent and standard of care can be tested.
Healthcare in the NHS is not provided on the basis of the customer is always right - especially in circumstances where the patient is a young person and / or otherwise vulnerable. There is a duty on treatment providers to apply their expertise and knowledge to the wishes of the patient, and provide healthcare that is in the patient’s best interest.
Trans health care used to be a niche area of medicine focused almost exclusively on adult males identifying as female. In recent years, the patient demographic has shifted dramatically, with increasing numbers of teenage girls being referred to NHS Gender Identity Services (GIDS) for treatment.
In 2009, 97 children and young people were referred to GIDS, and in 2011 referrals were roughly 50:50 by natal sex. In 2018 2,519 children and young people were referred, with a natal sex division of 76% to 24% in favour of natal females.
This rapid growth of adolescent females identifying as transgendered has followed a pattern that first emerged in America and has extended to Canada, the UK and many other western European nations.
America in particular has seen a phenomenal growth of gender identity treatment for young natal females. Between 2016 and 2017, the number of gender surgeries for natal females in the USA quadrupled, and by 2017 natal females accounted for 70% of gender surgeries.
However in the UK, difficult questions are starting to be asked, both as to the clinical treatment and the outcomes it achieves.
Bell v Tavistock [2021] EWCA Civ 1363
In Bell v Tavistock the High Court was asked to consider on Judicial Review whether consent can be given by children (under 16s) and young people (16-18) to receive puberty suppressing treatment (‘Puberty blockers’, hereafter ‘PBs’). The Tavistock is the UK’s only NHS run gender clinic for children and young people.
GIDS prescribed PBs for children as young as 10 years old who were diagnosed as suffering from Gender Dysphoria (a condition defined in DSM V ((Diagnostic and Statistical Manual of Mental Disorders)) as ‘clinically significant distress or impairment related to a strong desire to be of another gender’).
The High Court took the unusual step of issuing a declaration that expressed significant doubt as to whether children and young people could be competent to consent to treatment with PBs and went on to recommended that clinicians seek the authorisation of the Court prior to commencing clinical treatment with PBs.
The Court of Appeal allowed the Tavistock’s appeal (Bell v Tavistock [2021] EWCA Civ 1363) on the basis that the High Court had overstepped its role on Judicial Review by imposing its view on capacity to consent which was properly a matter for doctors and clinicians to determine following the established principles of Gillick competence, Gillick v West Norfolk [1985] UKHL 7. The Court of Appeal also criticised the High Court for making findings on disputed issues of fact within a Judicial Review.
There is, however, increasing concern among the medical profession that intervention with PBs fails to result in better clinical outcomes. The Cass review led by Dr Hilary Cass was set up in Autumn 2020 to examine treatment provided through GIDS to children and young people who are questioning their gender identity or experiencing gender incongruence. At the time of writing the outcome of the review is awaited.
There is evidence that Gender Dysphoria usually resolves in the absence of treatment, Gender Dysphoria is more likely to persist with clinical intervention, and that clinical intervention results in long-term and potentially irreversible physical and psychological consequences (see Paul W Hruz MD PHD, “Deficiencies in Scientific Evidence for Medical Management of Gender Dysphoria”, The Linacre Quarterly 20th September 2019). Furthermore studies show a significant proportion of those presenting with Gender Dysphoria have a diagnosis of Autistic Spectrum Disorder (see Holt, Skagerberg & Dunsford 2014, Kaltiala-Heino et al 2015). Concerns are also growing that gender non-conformity in young people, particularly common in those who are same sex attracted, is being medically treated as gender dysphoria in young people who are homosexual.
The Bell case did not examine the treatment in a clinical negligence context, and so did not need to consider whether GIDS was in any breach of its duty of care. However the Bell case has opened a debate principally relating to capacity to consent but more fundamentally whether a reasonably skilled and knowledgeable doctor would prescribe PBs to children and young people reporting Gender Dysphoria.
Keira Bell had her first appointment at the Tavistock at the age of 15. Bell has since said: ‘I was definitely having trouble figuring out my sexuality, and my father was very religious. Maybe I internalised homophobia’.
Commenting on her first appointment with GIDS, Bell said: ‘It felt very brief: a basic history of my development, and relationships and family; what type of friendship groups I had. It was all based on stereotypes’.
Bell now takes the view that ‘stereotypes don’t mean anything, it doesn’t matter if you’re masculine, it’s your biology that makes you a woman, and there are other women like you… There was never anyone telling me to love myself and that I was fine the way I was. It was just “change yourself and you’ll be better”’. (Quotes are taken from Chapter 4 of Trans: When Ideology Meets Reality by Helen Joyce, 2021).
Keira Bell’s account, supported by other detransitioners (meaning those who have ceased to identify as trans and returned to identify with their natal sex), suggests that practitioners at GIDS have followed an affirmative approach to Gender Dysphoria treatment - that once a person declares their gender identity to be different to their natal sex, their expressed gender identity is supported and not challenged.
Certainly in the case of, say, a person coming out as being same sex attracted, there can be no sensible argument against a supportive response accepting of their sexual orientation. But is there a greater need for careful consideration with a teenage girl asserting a trans identity? There has been no increase in natal women in their 30s, 40s and above declaring themselves as trans. The increase has been concentrated among teenage girls and young women.
Academics have highlighted that this is a demographic with a propensity towards psychological conditions spread by peer contagion (meaning a behavioural or psychological influence between an individual and a peer, as opposed, for example, to viral contagion where the passing of a physical virus causes infection). Dr Lisa Littman, Assistant Professor of the Practice at the Brown University School of Public Health, Rhode Island, has produced a peer reviewed research paper indicating that the incidence of teenage girls declaring themselves trans in America follows a pattern consistent with peer contagion. If the sharp increase of trans identity among teenage girls is indeed influenced by psychological peer contagion – a mechanism of transmission similar to eating disorders and self harm – then an affirmative approach to treatment would be unwise.
Recent endocrinology referral numbers would suggest GIDS have become more reluctant to prescribe PBs to young people. Indeed, the Court of Appeal’s decision to overturn the High Court declaration and return the decision making to clinicians may not necessarily lead to PBs become more accessible to young people diagnosed with gender dysphoria. No person under the age of 17 has been referred by GIDS for treatment with an endocrinologist since December 2020 and despite the Court of Appeal’s Judgment it is far from certain that referrals will resume in the same numbers as before the Bell Judicial Review.
The Court of Appeal sounded a warning at paragraph 92 of its Judgment stating;
We should not finish this judgment without recognising the difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.
Safeguarding concerns
Concerns have also been raised about child safeguarding within GIDS.
Sonia Appleby, the Safeguarding Children’s Lead at the Tavistock clinic, has recently succeeded in an Employment Tribunal claim against the Tavistock. The Tribunal heard that a number of staff brought concerns to Ms Appleby. The concerns included the high numbers of children being referred to Gids, and a worry that some young children are being actively encouraged to be transgender without effective scrutiny of their circumstances. Ms Appleby then reported these concerns to her line manager. After this, instead of addressing the concerns, the trust management attempted to prevent her from carrying out her safeguarding role in what Ms Appleby described as a "full-blown organisational assault”. The ET awarded Ms Appleby £20,000 compensation for damage to her professional reputation. The Tavistock is reported to be ‘considering the ruling carefully’.
Sonia Appleby’s case follows a highly critical ‘whistleblower’ report in 2018 from Dr David Bell, a psychiatrist employed at the Tavistock, expressing concerns that it was fast tracking child patients for treatment with a poor evidential basis.
That a treatment can be shown to have been harmful or unnecessary with the benefit of hindsight is not, of course, sufficient for a clinical negligence claim to succeed. The claimant must show that the treatment was negligent by the standard of what a reasonably knowledgeable and up-to-date practitioner would have known at the time.
It is of interest that up until June 2020, the NHS website information on puberty blockers 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, might suggest that concerns should have been acted upon much earlier.
The Clinical Negligence Context
In a clinical negligence context, and additional to the issue of breach of duty owing to inadequate skill and care, a crucial question will be whether clinical intervention by puberty blocking medication is a treatment capable of withstanding logical analysis within the meaning of Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151 HL. Starting from first principles, “Gender Identity” is a difficult concept to define, the definition given in DSM V 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. Humans are sexually dimorphic and not a species which can change from one sex to another such as clownfish or crocodiles in the non-mammalian world.
What, it might be asked, is the substantive difference between a trans person’s feeling of gender identity as against other psychological conditions such as body integrity identity disorder (often manifested as the desire to have a healthy limb amputated)? 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 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 reproductive organs and secondary sex characteristics such as female breasts the clinical solution, as opposed to psychological treatment which may make it easier to live in the body the trans person has to begin with. Gender reassignment surgery does not, in a biological sense, change a body from one sex to another, human bodies are not analogous to lego models where bits can be removed or added on to fundamentally change the design. These are questions which clinicians should consider with the greatest of care.
Unhelpfully some trans rights activists (who may or may not be representative of the broader views of trans people) have responded to such questions by accusations of transphobia and bigotry rather than engagement, see the campaign against Professor Stock, author of "Material Girls" and Lecturer in Philosophy, which led to her resignation from Sussex University. Thus far the argument has largely been fought between trans rights activists and “Gender Critical” feminists - i.e. those who believe that biological sex is immutable and that natal males identifying as females should not be permitted access to women’s hospitals, prisons, and safe spaces or allowed to compete in women’s sports. Many on the Gender Critical side of the argument were reluctant to speak freely for fear of employment consequences. However, the recent EAT Judgment in Forstater v CGD held that Gender Critical beliefs were worthy of protection within the meaning of s.10 Equality Act 2010 and it might reasonably be hoped that the EAT ruling serves as a foundation for a more open and constructive debate around these questions.
Conclusion
Female detransitioners can suffer a loss of fertility, loss of ability to achieve sexual pleasure, and in some cases may have undergone double mastectomy of physically healthy breasts. Many clinical negligence practitioners have looked on with interest at the Bell Judicial Review and Sonia Appleby’s ET claim and anticipate civil actions where issues of consent and standard of care can be tested.
Healthcare in the NHS is not provided on the basis of the customer is always right - especially in circumstances where the patient is a young person and / or otherwise vulnerable. There is a duty on treatment providers to apply their expertise and knowledge to the wishes of the patient, and provide healthcare that is in the patient’s best interest.
