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
Belief Discrimination in the Workplace
Belief Discrimination in the Workplace
“Never discuss Religion or Politics in polite company”
- Mark Twain
The European Convention on Human Rights (ECHR), drafted in 1950, aimed to ensure liberty and freedom would prevail in a post war Europe shattered by the horrors of Fascism and under the threat of Soviet Communism. Its authors would perhaps be surprised to learn that seventy years later the ECHR would be relevant to HR departments dealing with workplace disputes. Whether it’s attributable to social media, Culture Wars, Brexit or Donald Trump employers increasingly find themselves having to manage employees with strong and divergent beliefs. Work often brings together people who might never otherwise interact.
Article 9 ECHR guarantees the absolute right to freedom of thought, conscience and religion, however the manifestation of belief is a qualified right subject to reasonable societal protection. Article 10 ECHR guarantees the right to freedom of expression subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.
Religious and Philosophical Belief is a protected characteristic under s.10 Equality Act 2010 (EqA). Direct discrimination on the basis of a protected characteristic is unlawful whilst indirect discrimination is permitted only if the business can show it to be a reasonable measure to achieve a legitimate aim.
Flashpoints tend to arise around dress codes, corporate image protection, politics and social media use.
What is a Philosophical Belief under s.10 EqA?
In Grainger v Nicholson, where the Claimant’s deeply held conviction about climate change was held to be a philosophical belief, the Judge stated that the belief must be;
i. Genuinely held
Not an opinion or viewpoint based on the present state of information available
Concern a weighty and substantial aspect of human life and behaviour
Attain a certain level of cogency, seriousness, cohesion and importance
Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others
Philosophical Belief does not need to constitute a fully-fledged system of thought, eg Pacifism or Vegetarianism can be philosophical beliefs. Political philosophies such as a belief in Conservatism, Liberalism or Socialism can be Philosophical Beliefs, support for a particular political party is more likely considered an opinion or viewpoint. Philosophical beliefs may include scientifically provable beliefs such as belief in evolution.
In Forstater v CGD the Claimant’s gender critical feminist views - the belief that sex is an immutable characteristic and that, for reasons of privacy, safety, and fairness access to same sex spaces should be by biological sex rather than gender identity – satisfied the 5th Grainger criteria of being worthy of respect in a democratic society. The Tribunal held that only beliefs which pose an extremely grave threat to ECHR principles, akin to Nazism or totalitarianism, would fail to satisfy the 5th Grainger criterion, and that Forstater’s beliefs and expression of her views got ‘nowhere near’. Following Forstater, the Barrister Alison Bailey, Social Worker Rachel Meade and University Lecturer Professor Jo Pheonix have all won claims for discrimination based on feminist gender critical belief.
Religious Belief
A balance is struck between manifestation of religious belief and business interests. Christian BA employee Nadia Eweida established her right to wear a necklace cross because it was discreet and did not detract from her professional appearance, whereas in the linked case of Shirley Chaplin, a hospital nurse, it was reasonable to ask her to remove her cross necklace for clinical safety. Religious belief which conflicts with providing services to sections of the public is unlikely to be protected, eg. Registrar Lillian Ladelle, who refused to officiate in same sex ceremonies, failed in her claim for Religious belief discrimination.
Conclusions
The manner in which beliefs are expressed is important, as is the place and context. Offence, disagreement, or controversy, are not in themselves reasons for a belief not to be protected. Where a belief leads to conscientious objection to certain work tasks or impacts on H&S or legal duties, a discrimination claim is unlikely to succeed. Businesses should be wary of committing themselves to vaguely worded, worthy sounding pledges regarding social or political issues. An over zealous policing of employees’ beliefs may well lead to successful claims for discrimination.
PETER HARTHAN
BARRISTER
7 HARRINGTON STREET CHAMBERS
2nd February 2024
Detransitioners - A Clin Neg Tsunami?
Update
In my previous blog post I noted that the Court of Appeal, whilst allowing the Tavistock’s appeal in Bell v Tavistock [2021] EWCA Civ 1363, had put responsibility for the clinical treatment of gender dysphoria firmly with clinicians and therapists. As paragraph 92 of the Court of Appeal’s judgment in Bell made clear;
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.
Whether clinicians have been taking great care in this area of medicine continues to be of concern. Professor Carl Henegan, director of the Centre of Evidence-Based Medicine at Oxford University, has stated “Given the paucity of evidence, the off-label use of drugs [for outcomes not covered by the medicine’s licence] in gender dysphoria treatment largely means an unregulated live experiment on children” (The Times, 8th April 2019). The same article spoke to 5 (unnamed) clinicians who had resigned from GIDS because of their concerns over the treatment of vulnerable children who come to the clinic presenting as transgender.
The worry that young people, many struggling with same sex attraction and/or Autistic Spectrum Disorder, have been wrongly diagnosed as transgender is a concern that can no longer be ignored nor casually dismissed as transphobia. The role of a mental health clinician 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 all relevant factors. Treatment provided must have a strong evidential base, particularly where that treatment causes significant and severe life-long consequences for the patient.
The language used in this area of medicine is often euphemistic and obscures the reality. The reality is that, at the current limits of medicine, there are no medical procedures that can change 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 normal functioning body of the opposite sex in any real sense. No procedure can make a man’s body produce ova, no procedure can make a woman’s body produce sperm. Nothing that a person says, feels or does can change the sex of their body. And to the extent that a patient is promised that transition will change their sex, such a promise is false.
In the UK the interim Cass Report released February 2022 has highlighted very serious concerns in relation to gender identity treatment provided for children and young people through GIDS. The Cass report states;
· We need to know more about the population being referred and the outcomes. There has not been routine and consistent data collection, which means it is not possible to accurately track the outcomes and pathways that children and young people take through the system
· There is a lack of consensus and open discussion about the nature of gender dysphoria and therefore about the appropriate clinical response
· The clinical approach and overall service design has not been subject to some of the normal quality controls that are typically applied when new or innovative treatments are introduced
Dr Cass OBE’s interim review goes on to state that;
A fundamentally different service model is needed which is more in line with other paediatric provision, to provide timely and appropriate care for children and young people needing support around their gender identity. This must include support for any other clinical presentations that they may have.
The findings of the interim Cass report lend support to the concerns of Professor Henegan and many others that young people have been put on pathways to life changing treatment with a paucity of any evidential base. Dr Cass, it seems, has reached a similar position to that the High Court arrived at in Bell regarding the lack of data collection and evidence as to outcomes in support of the efficacy of cross sex hormones or surgical transition.
These concerns are not limited to treatment of children and young people. A rigorous retrospective case note review for 175 adult service users consecutively discharged by tertiary National Health Service adult Gender Identitiy Clinics between 1 September 2017 and 31 August 2018 (“the Cambridge Study”) has concluded[1];
· Neurodevelopmental disorders or adverse childhood experiences suggest complexity requiring consideration during the assessment process
· Managing mental ill health and substance misuse during treatment needs optimising
· Detransitioning might be more frequent than previously reported.
The Cambridge Study states (page 7);
Consent to irreversible treatments must entail a discussion about the real possibility of not completing transition as envisaged, in order that expectations are managed. It is not currently known what it means for service users to access hormones but not surgery where desired. Furthermore, it is necessary to optimise support for those with coexisting substance misuse or mental health concerns during treatment.
Twelve service users (6.9%) met the Cambridge Study’s definition of detransitioning and a further six (3.4%) had some overlap of experience though they did not strictly meet the case definition (the study’s figures were over a period of 16 months from transition). The study goes on to state;
Notwithstanding the possibility that the rate of detransitioning we found (6.9%) is an underestimate, it is notably higher than the only other published figure from a UK clinic of 0.33%
Clinical studies have shown that for most young people with gender dysphoria, the condition resolves over time in the absence of treatment, see Drummond, K. D., Bradley, S. J., Badali-Peterson, M., & Zucker, K. J. (2008), A follow-up study of girls with gender identity disorder, Developmental Psychology, 44, 34–45. Indeed the social transition and / or clinical treatment has been shown to increase the likelihood of gender dysphoria persisting into adulthood.
The voice of detransitioners (those who have returned to identify as their natal sex) is being heard ever more forcefully. And, with good reason, many are angry. Detransitioners who have undergone surgical removal of breasts or penis or testicles, or other body parts, cannot be put back together again. Theirs is a lifetime of consequences. And they have many questions. How did this happen? Why were comorbidities such as OCD, internalised homophobia, depression, drug misuse, sexual abuse or trauma not considered as reasons for their rejection of their sexed bodies? Why were they not told that the treatment was experimental with little known about long term outcomes? Were they given the opportunity to understand and properly consent to the treatment?
Montgomery v Lanarkshire [2015] UKSC 11 is the leading authority in relation to consent in English Law. The test 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. The purpose of obtaining informed consent is so that the patient understands the severity of the condition, the advantages and disadvantages of treatment, and the existence of any alternative treatments.
A 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. The clinician has a duty to contain and consider properly the patients 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 patients to additional risks arising from their intervention.
I am grateful to those detransitioners who have contacted me with a view to bringing a clinical negligence action. They are brave people and I will put my heart and soul into working for them. As for the clinicians who did not dare to be wise and failed to resist being swept along with an ideological tide, well the tide has turned and they may soon need to account for their actions.
Peter Harthan
12th May 2022
[1] Access to care and frequency of detransition among a cohort discharged by a UK national adult gender identity clinic: retrospective case-note review
Hall, Mitchell and Sachdeva, Cambridge University Press, 1st October 2021
Clinical Negligence and Trans Healthcare
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.
Failure to MOT, ex turpi causa and Hire claims
“Failure to have an MOT certificate due to an oversight could possibly give rise to a fine, but that is not what one would describe as criminal behaviour, in the true sense of the word. I am staggered that it was pleaded. I am even more staggered that it was argued before the District Judge. The District Judge would have none of it, however, and said that ex turpi causa had no part to play in this case. He was unquestionably right about that.”
In the Jack case the Claimant’s MOT was 4 ½ months out of date and the Claimant stated in his evidence that he had not been aware that it did not have a valid MOT, that it was due to an oversight on his part, and had it been brought to his attention he would have remedied the matter straight away. This evidence appears to have been accepted by the Court.
A similar issue was raised in a recent case in which I had involvement, Owusu v Greencore before HHJ Brown in Canterbury County Court. To put my cards on the table at the outset, I was Counsel for the Claimant and ended up very much on the wrong end of it! The Defendant relied on the cases of Agheampong -v- Allied Manufacturing London Limited [2009] Lloyd’s Rep IR 379 and the Northern Irish High Court case of Morgan v Bryson Recycling [2018] NIQB 12. As most readers will be aware, Agheampong deals with a case of an uninsured driver bringing a hire claim and essentially decided that a failure to insure does fall within the ambit of ex turpi causa and therefore the hire claim was dismissed. Morgan is more closely on point as it relates to a failure to MOT where an insurance policy was in place (albeit the insurance was invalidated by the failure to MOT, as is standard for most policies of insurance). The Northern Irish Court was persuaded that the failure to MOT did satisfy ex turpi causa and dismissed the hire claim. A little surprisingly Morgan appears not to have been referred to, or at least is not mentioned in HHJ Freedman’s judgment, in Jack v Dorys.
In Owusu the Court was referred to paragraph 120 of Lord Toulson’s Judgment in Patel v Mirza [2016] UKSC 42 which, although a very different type of case, both Counsel accepted as a concise general summary of the ex turpi causa principle and is set out below for ease of reference;
[120] The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.
Applying the above caselaw to the case before her HHJ Brown preferred the reasoning of HHJ Dean in Agheampong and followed the decision of the Northern Irish Court in Morgan. The Claimant sought permission to appeal but permission was refused.
On the face of it therefore we have 2 Circuit Judges, HHJ Freedman and HHJ Brown, reaching diametrically opposed conclusions on the same point. The conflict may seem even more dramatic when one considers that in Owusu the MOT had expired only 2 weeks prior to the accident as opposed to 4½ months in Jack. However the difficulty for the Claimant in Owusu, and a point which caused particular concern for the Judge, was that on his vehicle being returned to him following repair, the Claimant had continued to drive the vehicle without an MOT for several months and only got round to getting an MOT nearly a year after expiry. In contrast to HHJ Freedman’s finding that the failure to get the MOT in Jack was ‘an oversight’ (on the face of it a fairly generous finding given that the MOT was 4½ months overdue) the failure to renew the MOT for nearly a year in Owusu suggested a more flagrant disregard for the legal duty to keep the vehicle with a valid MOT.
This is likely to be a battle which will run on. My own opinion is that the position on failure to MOT is unlikely to be resolved in a such a clear cut way as the decision in Agheompong which leaves no doubt that a failure to insure engages ex turpi causa. On any reasonable view a failure to MOT is a less serious offence than failure to insure. In my opinion where a Claimant can show that the failure to MOT was a mere oversight then it is unlikely that the Defendant will succeed in an ex turpi causa argument. The length of time that the MOT was overdue and whether the Claimant can point to a record of compliance with their duty to MOT are relevant considerations. Where a Judge forms the view that the Claimant’s failure to get their vehicle MOT’d goes beyond an oversight and shows a more serious disregard for the duty to MOT then a hire claim is likely to be in some jeopardy from an ex turpi causa argument. Of course, there will be many cases in the middle of this spectrum and therefore, do not fear, there is much for the lawyers to continue to argue about!
A further consideration is whether a failure to MOT which is sufficiently serious to engage ex turpi affects just the hire claim or other heads of loss as well. The Claimant in Owusu brought the full constellation of claims which might arise from a road traffic accident to include personal injury, physiotherapy, and loss of earnings as well as hire. He succeeded in recovering his losses other than hire. It seems to me that this must be correct and that, whilst there is a sufficient nexus between vehicle related losses and failure to MOT, depriving a Claimant of their damages for injury and other consequential loss would be disproportionate in a case of a failure to MOT. However, if ex turpi applies to a hire claim then I can see a strong argument that it should also apply to other vehicle related losses such as repairs / PAV and storage. This argument will no doubt be raised when a suitable case comes along.
