TRANSGENDER CHILDREN AND MEDICAL INFORMED CONSENT
Years ago, I wrote a blog about medical consent and giving birth. The case at issue in that blog arose from a woman who, while giving birth, did not consent to certain procedures her doctor felt were necessary for her or her child’s health during the birth under the circumstances.
It is a topic that is regularly on my radar.
Informed consent and patient education are vital parts of any medical care and doctors in Virginia are required to inform their patients about many issues relating to any procedure.
I regularly field phone calls from patients who received medical care, sometimes lifesaving care, and the potential side effects, alternatives to care, and potential for misdiagnoses were not discussed prior to the administration of care. A verbose document with pages of complex medical terms was thrown in front of the patient, the patient signed without reading it, and they went in for surgery.
This type of form-driven medical care may be resulting in a new concern: medical care to children for questioning their identities.
There seems to be a growing concern, throughout the world, about young people who are receiving care from doctors relating to hormone treatment and surgery to address one of many psychological concerns. There are many terms that are used relating to these concerns, including “neurodivergent,” “gender-related distress,” “transgender,” and “gender-questioning,” among others.
In the UK, for example, it appears a clinic known as the Travistock Clinic has been shut down and numerous whistleblowers and former patients have complained that there was, what I would call, insufficient informed consent and insufficient education to the patients about the procedures the doctors were performing, insufficient education about alternative diagnoses or prognoses, and insufficient education about the possible side effects.
Furthermore, people like Chloe Cole in California have been revealing the process they went through for these types of medications and medical procedures. Ultimately, it appears Ms. Cole will be bringing a lawsuit against numerous doctors relating to what happened to her. I believe that lawsuit may be a touchstone, one way or the other.
Will a jury hold doctors liable who fail to properly educate their minor patients regarding gender-related procedures and medication?
The ultimate issue I see from a legal perspective in Virginia relates to the practice that is overtly stated in the Travistock matter – doctors identified certain individuals as being so fragile that any attempt to educate them was seen as harmful. When education, itself, about the possible harmful effects of hormone therapy or a mastectomy for a 13-year-old girl is, itself, seen as harmful, how, then, can doctors meet their burden of informed consent?
The process of educating a patient on an appendectomy, an extremely safe procedure, seems to be more in depth than sterilization and removal of sex organs from children.
Furthermore, some of the data from doctors who I would expect would pass the tests to be admitted as expert witnesses in court on the topic seem to show that those who fit criteria similar to “neurodivergent” will cease their claims by the age of 18 if they receive no medication or surgery.
In my opinion, based upon the literature and case law about informed consent, it should be a necessary element of patient education to inform them that upwards of 90% of kids will no longer meet the criteria for these gender-related diagnoses if they receive no medication or surgery when considering gender-related care, medication, or procedures.
In short, “[a] physician has a duty in the exercise of ordinary care to inform a patient of the dangers of, possible negative consequences of, and alternatives to a proposed medical treatment or procedure” Marik v. Sentara Healthcare, 109 Va. Cir. 88, 93 (Cir. Ct. 2021) (quoting Tashman v. Gibbs, 263 Va. 65, 73, 556 S.E.2d 772, 777 (2002)).
Sometimes, by the way, alternatives to a proposed medical treatment is to do nothing.
I have handled a number of medical malpractice related cases over the years, and I suspect the next few years are going to show many medical malpractice lawsuits against practitioners for gender-related care of children and informed consent. As a threshold matter, I would suspect that the failure to educate a parent and child that upwards of 90% of children who receive no care ultimately show no signs of the condition to be treated by the age of 18, will be, by itself, a basis for some of these lawsuits.
Failure to provide sufficient alternatives, failure to educate that the doctor may have misdiagnosed the gender-related psychological condition, and failure to fully educate the parent and child of the harms of medical and surgical treatment, also, will likely be the bases of these claims.
This is an exceptionally challenging issue. On the one hand, practically all doctors are loving and caring individuals who wish to help their patients. On the other hand, there are children who have serious health and mental health conditions who need treatment. What cannot go by the wayside is the fact that the most important education must be given to the parent and patient before any care, let alone life altering sterilization.
I am hopeful that doctors will make the right call and will ensure that parents and patients are informed that no surgery or medicine may result in the best outcome for the patient. But, then again, we somehow got into massive opioid and benzodiazepine addiction epidemics and certain doctors may be to blame for those.
Time will tell.