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