Dennis Noel Kavanagh looked previously at the 'carve out clauses' that can be used as a legitimate defence....
- Clause 1 (2) (b) provides that no offence is committed where:
a health practitioner takes an action in the course of providing a health service, provided that—
(i) the health practitioner complies with regulatory and professional standards and considers in their reasonable professional judgement that it is appropriate to take that action, and
(ii) there was no predetermined outcome in terms of sexual orientation or transgender identity or lack of it at the start of any course of treatmentThis is a complex defence which consists of three concepts, first the meaning of “health practitioner, second the clause 1 (2) (b) (i) requirement of reasonableness and compliance and third the clause 1 (2) (b) (ii) requirement that there be no predetermined outcome.
Health practitioner defence part 1 – meaning of “health practitioner”
16. Clause 4 of the bill provides that a “Health Practitioner” “a person who is a member of a body overseen or accredited by the Professional Standards Body for Health and Social Care[14]”. The Professional Standards Body for Health and Social Care is an umbrella organisation that oversees the following 10 regulators:
(i) The General Medical Council
(ii) Social Work England
(iii) General Pharmaceutical Council
(iv) General Optical Council
(v) General Dental Council
(vi) The Nursing and Midwifery Council
(vii) The Pharmaceutical Council of Northern Ireland
(viii) The General Osteopathic Council
(ix) The Heath and Care Professions Council
(x) The General Chiropractic Council
It is important to note that none of the bodies mentioned here regulate counselling or therapy, while the Health and Care Professions Council (ix above) regulates practitioner psychologists the wider fields of counselling and therapy are not regulated in the UK and would fall outside this defence. That absence presents serious issues in terms of the proposed legislation and places counsellors and therapists at jeopardy of criminal prosecution for actions that meet the low test of a conversion practice.
By way of example, a private counsellor who told a young patient to their professional view was that they were suffering internalised homophobia and manifesting a transgender identity as a result could in theory be prosecuted for a single activity intended and having the purpose of supressing a transgender identity. Given the interim Cass report[15] emphasises the importance of multi-disciplinary intervention, counselling and therapy, it is surprising that such services are placed in jeopardy of criminal prosecution.
Health practitioner defence part 2 – reasonableness and compliance
- It is a defence for a “Health Practitioner” meeting the definition in part 1 to show that they were complying “with regulatory and professional standards and considers in their reasonable professional judgement that it is appropriate to take that action”. Placing a requirement on a Defendant in a criminal matter is known as a “reverse burden of proof” (because the burden of proof ordinarily rests with the prosecution). Reverse burdens are generally considered undesirable as a matter of principle, though it is correct to say that despite this many offences do impose them. Reverse burdens in crime are discharged by a Defendant if they meet the civil, rather than criminal standard of proof, that is to say a Defendant would succeed in discharging this burden where they can prove that their case is more likely than not (“the balance of probabilities”).
- In this case a Defendant must show (i) they complied with regulatory and professional standards and (ii) that their judgment was reasonable. In respect of (i) pronounced difficulties are likely to arise as to what qualify as the “appropriate regulatory and professional standards”. In the field of paediatric gender medicine globally there are two competing standards of care which are diametrically opposed in approach. One approach is that of an organisation known as “WPATH” (The World Professional Association for Transgender Health[16]) which promotes a clinical approach known as “affirmation only” whereby a child’s self-diagnosis is determinative of treatment. An example of the contrary approach is found in the NHS England Interim Service Specifications (“NHS ISS”)[17] which promote a clinical approach variously described as “watchful waiting” or “exploratory therapy”.
- Many private providers in this field follow the WPATH model, NHS practitioners are expected to follow the NHS ISS. The draft bill presently fails to say which standard is intended to ground the Health Practitioner defence. If WPATH service standards constitute a defence, the bill risks entirely undermining the Cass review and thwarting the objective of criminalising a situation in which a young person is subject to a conversion practice whereby cross sex ideation is induced or cultivated. If the NHS ISS service standards are intended to constitute the defence this should be stated in terms, (though it would have the effect of making non-NHS approved practice in this area subject to potential criminal liability, rather than it being a regulatory matter). The second limb of this part of the defence requires that the judgment of the Health Practitioner be reasonable. This is likely to be duplicative and add very little to the first requirement that a Health Practitioner be acting according to regulatory and professional standards.
Health Practitioner Defence Part 3 – no predetermined outcome
- A Health Practitioner completes this defence where they show, on reverse burden, that “there was no predetermined outcome in terms of sexual orientation or transgender identity or lack of it at the start of any course of treatment”. This is a potentially stringent requirement both in the case of clinicians subscribing to the “affirmation only” approach and those adopting the NHS ISS “watchful waiting” approach. In the former case an adherent to “affirmation only” will conceptualise a child’s self-diagnosis as definitive and seek to accelerate progress onto puberty supressing drugs and cross sex hormones, they will in other words have in mind that predetermined outcome. Conversely, a clinician following the NHS ISS may quickly come to the conclusion that diagnostic overshadowing and comorbidities are at play and have the predetermined outcome of avoiding precisely such a medical pathway.
- In both cases neither has a defence in criminal law under the Health Practitioner exception. The effect of the section in total is to take a regulatory matter and cast the net of criminal liability over it. This could have the effect of chilling both kinds of practice in an area already well known for patient demand outstripping clinical capacity.
https://dennisnoelkavanagh.substack.com/p/legal-analysis-of-the-commons-pmb
I would go through this and comment, but I need to dash out. This is dated 23 Feb BEFORE the bill's latest reading in the HoC and before the WPATH leaks.
Its interesting to see where we are now, compared with then.
I'll be back later and comment on these points, if no one else has before then.