Can we assume Gender Affirming doctors will be found negligent?

How the logic of GAC could shift the status quo in malpractice claims

Leaked internal documents from WPATH, the self-appointed ‘world leader in gender care’, provide some of the strongest evidence yet of the reckless, anti-scientific underpinnings of Gender Affirming Care (GAC).

In backchannels, frustrated health sector workers are expressing hopes that the leaks bring us closer to a time when Australian doctors operating under the influence of WPATH are held accountable.

While there’s every reason to expect that that time will come, I also think it’s worth playing devil’s advocate.

Walking through Australian medical negligence laws, there are a few possible obstacles on the horizon for patient’s harmed by GAC.

The obstacles themselves are also revealing. They’re a glimpse into the tactics by which ‘gender ideology’ has been able to insinuate itself into the law and medicine, without ever seeking a mandate.

Salami Slicing

The term ‘salami slicing’ (or salami tactics) was born in the 1940’s. It describes the incrementalist strategies by which the then Hungarian Communist Party was able gradually corrode and divide any and all opposition to its rule.

There’s lots of room for creativity but at its most basic, salami slicing involves taking a task that would be impermissible to perform all in one go, and breaking it up into smaller, permissible steps.

The cumulative effect is a landscape of incremental yet significant changes that might have been resisted if proposed all at once. From the outside, what one often observes is a system increasingly beset by dysfunction, a changing status quo, communication breakdowns, and fait accomplis.

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‘Just following orders’

Under Australian medical negligence laws, a medical practitioner isn’t considered negligent if the treatment provided was in line with a standard of care / opinion that is ‘widely held by a significant number of respected practitioners in the field’. An exception may be made if a court deems that the standard/opinion was ‘irrational’.

Australia’s Gender Affirming ‘standards of care’ are neither widely consulted upon nor well-evidenced, nor have they been approved by the National Health and Medical Research Council.

When the first such standards were published in 2017, Gender Affirming Care was a field with few experts and trans rights was the new cause du jour of a large swathe of non-expert activists and members of the media. In this environment, the self-styled ‘right’s based’ standards were gratefully adopted by clinics across the country, without receiving due scrutiny. So, are these standards, the standard of care?

If GAC is deemed by courts to have established itself as a ‘generally accepted’ standard, many doctors may be able to defend their actions on the grounds that they were, 'just following orders', so to speak.

In this context, it’s easy to imagine how a circular dependency between the doctors, guidelines, activists and policy makers who have relied on the standards can emerge - by continuing to uphold them as the accepted standard, they could potentially indemnify their own actions.

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Catch 22

If common sense prevails, courts can still find that an accepted standard of care was ‘irrational’. This is where the missing ingredient from Australia’s gender affirming standards of care - an empirical diagnostic modality - could become pertinent. Gender dysphoria or transgenderism are unfalsifiable conditions and GAC standards of care do little to nothing to help medical professional navigate this challenge. They offer almost no guidance as to how clinicians should make a differential diagnosis. Instead, they openly encourage clinicians to defer to their patient's own self-reporting.

Essentially, patients diagnoses themselves.

A two-part episode of The Good GP podcast provides a glimpse into just how patient-driven these treatments have become in Australian practices.

Crucially, GAC guidelines are only guidelines for ‘the treatment of transgender patients’. This conditional logic puts patients in a catch-22.

On the condition that a patient understands themselves to be trans or gender dysphoric and is desirous of the treatment, the treatments provided to them could be seen by a court as ‘reasonable’. It follows that any regret experienced by a patient could be interpreted by courts as evidence that they themselves should not have signed up for the treatment. In other words, the treatment wasn’t wrong or irational - the patient was.

This logic can be seen at work in a 2020 NSW Supreme Court judgement in a case of alleged negligence and ‘failure to warn’ against a doctor who performed genital surgery on their patient :

I find that she [the patient] was properly warned. The duty to warn was discharged. I do not accept the plaintiff’s evidence of not being warned of material risks. Further or alternatively I do not on the “causation aspect” relating to duty to warn accept the plaintiff’s asserted “subjective intentions”. Even were I wrong on the matter of the plaintiff having been properly warned as to material risks, and that even if the situation were otherwise ie that the plaintiff was not properly warned, I nevertheless find that she would not have changed her course of action. I specifically find she would have still have elected to have proceeded to gender reassignment surgery when she did, with the defendant.

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Causality

There are many potential and serious side-effects of these treatments (liver cancer, bone density loss and vision impairment, to name a few). But, a successful medical malpractice claim must prove causality i.e. that an injury would not have been sustained but for a doctor’s negligence.

Unfortunately, the segmented nature in which Gender Affirming treatments are delivered could present a further challenge for patients harmed by their care.

Puberty blockers, cross-sex hormones and surgery are delivered in stages, and these stages can be drawn out over months, years or decades. Additionally, patient assessment, diagnosis and treatments are often delivered by multiple different practitioners (GPs, urologists, endocrinologists, surgeons), and it is largely for patients to decide if and when treatment ends.

This staged, multidisciplinary approach can easily obscure the causal links between particular doctors, treatments, and a particular side-effect,

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A much broader failure

It’s too soon to say how any of this will play out in courts.

Hopefully, judicial common sense (or perhaps Tavistock-style class action lawsuits) will prevail. Whatever happens it’s worth taking note of the self-serving and fallacious logic on which GAC rests, if only because the lack of scrutiny that the dangerous model has received implicates a much broader failure.

Those who’s job it is to detect and minimise dysfunction in public institutions - including the media, government and academia - have fallen asleep on the job, or turned a blind eye.

As a we move closer to what feels like a reckoning, it should be remembered that accountability extends far beyond the doctors office.