Dr John Rumbold, Lecturer NLS https://www.ntu.ac.uk/staff-profiles/law/john-rumbold
The Cass Review was a far-reaching review of the provision of gender affirming care in paediatric medicine. Although Hilary Cass was specifically reviewing the care provided by the Gender Identity Development Service (GIDS), there are a number of implications for adult care too. The conclusion of the review, supported by a number of peer-reviewed and published systemic reviews, was that the interventions were not supported by robust evidence. In light of the significant and lasting harmful effects that can be attributed to puberty blockers and cross-sex hormones (which include osteoporosis, reduced IQ, mood disorders and lack of libido), it was considered that these interventions should only be administered as part of a clinical study. There was some consideration of a clause for exceptional circumstances, but it was considered that this was impracticable to administer such a policy as it was difficult to envisage what would amount to such exceptional circumstances.
Although tort law would typically be seen as the legal remedy for medical malpractice, there are difficulties here. If doctors were conforming to the standards of the World Professional Association for Transgender Health (WPATH), they might not be found negligent. This is an instance where the proviso in Bolitho that the body of medical opinion must stand up to logical analysis could be usefully invoked.
The status of WPATH guidelines was subject to extensive analysis in the Cass Review with several peer-reviewed systemic analyses. Expert consensus is low in the pyramid of evidence, it is necessary for any guidelines to be based on something more substantial. Further, the network of craft bodies that provided mutual support for guidelines produced a misleading impression of the degree of consensus and strength of the scientific evidence.
Cass also commented on the rationale for paediatric transitioning. The two main justifications for the administration of puberty blockers were:
1) it would provide time to think; and
2) it would improve the ability to pass (that is, the person would be perceived as the gender that they are transitioning to rather than their biological sex)
It was considered that this would improve body image and psychological wellbeing.
Cass found that there was little evidence for these outcomes. The review by found that 0-8% of patients did not progress on from puberty blockers to cross sex hormones (14.23). The inference was that the administration of puberty blockers actually locked patients into a medical pathway (also the conclusion of the High Court in R (on the application of Quincy Bell and A) v Tavistock and Portman NHS Trust and others [2020] EWHC 3274 (Admin). The counter-argument is that clinicians were exceptionally able to identify those who had a stable gender identity and who would benefit from gender affirmative care (in which case, time to think is irrelevant).
There was little evidence for reducing gender dysphoria/improving body satisfaction (14.26) and psychological and mental health improvements (14.27-29).
Although early treatment might improve passing (14.30-31), the development of various features of the sexed body is not purely down to the level of sex hormones. Sex in human beings is genetically determined. It might also lead to more invasive surgery for vaginoplasty, if the patient had a micropenis due to the effect of puberty blockers on genital development. The skin of the penis is typically used to construct the neovagina, and if this is insufficient then sections of bowel may be used. Cass also noted that early use of puberty blockers had little effects on final height of patients compared to the reference intervals for their biological sex (14.32).
The findings of the Cass Review have been firmly rejected by many clinicians in transgender health, including WPATH. They have criticized the methodology of the systemic reviews and the failure to include transgender persons on the team conducting the review.
It can be persuasively argued therefore that the application of the Dutch protocol of early intervention, developed in Utrecht and Amsterdam, to an entirely different patient population could not withstand logical analysis (and Cass did spend some time look at the differences in her report). It would fail the Bolitho test. In Bolitho it was held that the opinion of a body of medical opinion had to be capable of withstanding logical analysis. The qualifier that this has to be the opinion of a responsible body of medical opinion infers this, but this requirement was highlighted in Bolitho.
I must confess that I previously had some antipathy to the Bolitho decision. It marked a departure from the judging of medical care purely by the standards of the medical profession. However, recent events have proven the wisdom of the ruling.
It was stated in Bolitho that
“it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.”
The main purpose of Bolitho is arguably to prevent the abuse of expert evidence to support shoddy practice by finding a small pocket of medical experts who will defend it. However, the principle still applies when the body of medical experts are in the majority. This is the case here, at least for those practising in the field. It is significant that the Cass Review required someone from outside the specialty to interrogate and critically evaluate the evidence and practice. Indeed, this is one of the major criticisms from some quarters, but it was vital given the apparent level of groupthink.
Alternatively, it might be argued that many of the patients were unable to provide valid consent. This issue was examined in Bell v Tavistock. Cass also found that . Coaching patients in order that they understand the issues sufficiently to be “Gillick competent” might enable them to have an intellectual knowledge of the treatment, but not necessarily a full understanding of what it means for them. A proper application of the Gillick test would require more than an intellectual understanding of the issues. Young people who have not been sexually active cannot fully understand the consequences of never being able to have an orgasm.
Although the person does not have understand every detail of the situation to be able to provide consent as per LBL v RYJ and London Borough of Tower Hamlets v PB, and does not have to experience particular treatment to be able to refuse consent to further treatment as per Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429 (Fam), there is a fundamental difference because the experience of orgasm is a quale – that is, a phenomenon that can only be truly appreciated by experiencing it. For example, we understand pain because we have felt it ourselves, but it would be an inadequate understanding to describe it as unpleasant. Similarly, describing an orgasm as like sneezing is hardly demonstrating sufficient understanding (words of Jazz Jennings described an orgasm as “like sneezing” in an episode of the reality TV show I am Jazz (which deals with Jazz Jennings’ medical transitioning).
As per Montgomery v Lanarkshire Health Board, this is an alternative cause of action for patients who have suffered injury from medical care (even when the course of action is not considered negligent). This could be the preferred basis for future litigation. The standard for consent in Montgomery is what the prudent patient would want to know. This objective standard would require the discussion of sexual function and fertility, even if these matters were not the chief concern of the gender-distressed minors at that point in time.
Finally, we could look to regulatory mechanisms to prevent the provision of unsafe care.
This was covered in a previous blog (Primum non nocere and Cass, dated 10th May). In a recent development, the former Health Secretary Victoria has banned the prescription of puberty blockers for the management of gender dysphoria in minors via a statutory instrument which is in force until 2nd September 2024. The new Labour Health Secretary Wes Streeting has committed to making that ban permanent, pending the outcome of a judicial review of the temporary ban.
Further Reading
SI 2014/727: The Medicines (Gonadotrophin-Releasing Hormone Analogues) (Emergency Prohibition) (England, Wales and Scotland) Order 2024
Biggs, M., 2023. The Dutch protocol for juvenile transsexuals: origins and evidence. Journal of Sex & Marital Therapy, 49(4), pp.348-368.
Cass Review Final Report downloadable at: https://cass.independent-review.uk/home/publications/final-report/
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