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Family Court approval 'may not protect' gender clinicians against negligence claims
The courts are likely to allow negligence claims against doctors many years after a minor is approved for medicalised gender change, according to a medical indemnity insurer in Australia, MDA National.
This risk remains even if parents or the Family Court approve of medical transition for a transgender-identifying patient, MDA National says in a message replying to questions from a general practitioner (GP).
The message, sighted by GCN, appears to be one of the clearest explanations of the thinking behind MDA National’s decision to restrict cover for private practitioners involved in treating young people diagnosed with the bodily distress of gender dysphoria.
“We consider it highly likely that in respect of those who transition as children and adolescents, that in the event of later regret, the courts will allow claims to be made against the treating doctors many years after the transition occurs,” the MDA National message says.
“We expect the medico-legal risks and challenges will likely be around the heavy reliance on medical opinion that the patient is suitable for transition.
“This risk exists even with the consent of the parent(s) and/or the Family Court.”
Emeritus professor of law Patrick Parkinson told GCN that Family Court approval would protect against a later claim “that the child was not competent to consent, if the judge decides she is competent, but other avenues for claim may be left.”
“The most likely claims [subsequent to Family Court approval] are negligence in diagnosis—failure to consider mental health history as a reason for a newly found gender identity—and failure to explain all the risks and consequences, and that there is only weak evidence that treatment will improve their psychological wellbeing.
“The [Family Court] itself may not have been made aware of these issues.”
Professor Parkinson said the degree to which Family Court approval would be an obstacle to later claims might depend on whether or not the application to that court was “actively contested.”
“Almost all cases now are contested because [Family Court] approval is only needed if one parent does not consent,” he said. “[The Family Court] may itself have relied upon the doctor’s evidence.”
However, he said “there may be cases, though, where [one parent] cannot be located, and [I understand that in one state of Australia], the government still requires court approval for all cases.”
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Video: The story of American detransitioner Chloe Cole resonates with what Australia’s Liberal Democrat politician David Limbrick is hearing from troubled parents in his home state of Victoria
Australia’s first litigation by a detransitioner—Jay Langadinos, who began cross-sex hormone treatment at age 19 and had a hysterectomy at 22—is in its early stages in the N.S.W. Supreme Court.
GCN understands there are a number of disputes over youth gender medicine on foot in the Family Court. In the United States and United Kingdom, several legal claims involving medical transition of minors have been reported.
From July 1, doctor members of MDA National will no longer be covered for claims arising from the initiation of cross-sex hormones for a minor, or from assessing a minor as eligible for medical transition.
In Australia, GPs are being urged by activists to start 16-17 year-olds—and sometimes younger patients—on cross-sex hormones without requiring multidisciplinary assessment or mental health screening.
This campaign to fast-track hormones for minors through primary care—a process that is arguably unlawful—is partly a response to over-subscribed paediatric gender clinics in state children’s hospitals. It also derives from the activist tendency to frame medical interventions as “trans health rights.”
The MDA National message to its inquiring GP member says the restriction of cover for gender medicine is not meant to call into question the competence of GPs.
“[But] we consider the risks to be significant and, as such, should more appropriately be absorbed by state indemnity rather than [by] doctors in private practice,” MDA says.
“We have been very targeted in the risks we have sought to exclude, which means that members will still be able to provide a broad range of healthcare [including exploratory psychotherapy] to children and adolescents with gender dysphoria.
“We are observing the trend in claims in the international and Australian jurisdictions and will continue to monitor and revise our cover to reflect the risk.”
Socialising the risk
MDA National has said previously it believes that “the assessment and initial prescribing for patients transitioning under the age of 18 years [should occur] with the support and management of a multi-disciplinary team in a hospital setting.”
However, the insurer says it will not cover its members for civil claims, such as negligence, arising from assessment and initiation of cross-sex hormones “even if these activities were performed within a multi-disciplinary team within a hospital.”
The logic of the MDA National policy is to concentrate liability in the public hospital sector and discourage the mainstreaming of hormones for minors.
Introducing an opinion article critical of MDA National, the web magazine AusDoc says the insurer’s policy decision has “rattled GPs treating gender-diverse patients.”
In the opinion article, Sydney GP Dr Portia Predny argues that while multidisciplinary treatment is “the gold standard approach”, it need not be confined to a hospital setting, and teens seeking cross-sex hormones, especially outside capital cities, may have no option but to go through a private practitioner.
“Access to gender-affirming care is already a huge issue for transgender people in Australia, and in order to address this issue, we need more clinicians who are willing and eager to upskill in this kind of medicine,” she says.
Dr Predny, vice-president of the gender-affirming lobby the Australian Professional Association for Trans Health, suggests that concerns about treatment regret are overblown.
But she says MDA National’s decision has “significant ethical and moral impact [and] reverberates beyond the immediate [effect]” on gender doctors who will lose coverage.
“A major Australian [medical indemnity insurer] withdrawing cover in this way sends a message to all clinicians that gender-affirming care is an inherently high-litigation-risk area of medicine, even though there is no evidence to support this notion,” she says.
“It will discourage doctors not already working in this area from building their skill base and providing gender-affirming care.”
“Gender-affirming care for children is undoubtedly a flashpoint in America’s culture wars. It is also a human experiment on children and teens, the most vulnerable patients. Ignoring the long-term dangers posed by unrestricted off-label dispensing of powerful puberty blockers and cross-sex hormones, combined with the large over-diagnosis of minors as gender dysphoric, borders on child abuse”—investigative journalist Gerald Posner, OpEd, The Wall Street Journal, 7 June 2023
The long shadow of the Tavistock
One of the factors cited by MDA National president Dr Michael Gannon—a former chair of the Australian Medical Association’s medico-legal committee—was the judicial review case against the world’s largest youth gender clinic, the London-based Tavistock service, brought by detransitioner Keira Bell.
GCN understands that the Tavistock controversy led to one state government in Australia imposing a safeguard in 2021 whereby new medical treatment at the public children’s hospital gender clinic must be approved by a judge.
The state solicitor’s office reportedly required this measure to protect the public purse from future claims.
The state, which cannot be identified for legal reasons, exercises a family law jurisdiction.
Approval from Australia’s Family Court, which covers the rest of the country, is only necessary if there is disagreement between parents or clinicians about diagnosis, the child’s competence to give consent or the preferred treatment.
However, the legal analysis offered by MDA National suggests that endorsement by a family law judge may not be an obstacle to future claims.
Note: GCN sought more information from MDA National about its legal advice.