Informed Consent, No-Fault Compensation, and the Dangers of Gender Medicine in New Zealand
Phillida Bunkle
New Zealand’s health system is often praised, at least by New Zealanders, for its progressive features, including its no-fault compensation scheme and strong patient rights framework. However, the very mechanisms designed to give harmed patients access to treatment if they are injured by medical treatment, and to allow them to complain about breaches in care, such as the Accident Compensation Corporation (ACC), a Code of Consumers’ Rights, and the Office of the Health and Disability Commissioner—may, paradoxically, undermine informed consent and effective oversight. This paper examines how these systemic features have created a regulatory environment for gender medicine in which safeguards are weakened, especially for minors. By exploring the historical evolution of the system, the legal frameworks around consent, and the limitations of the evidence base for ‘gender medicine,’ the paper argues that current practices fall short of the standards of informed consent and patient protection envisioned by the original reforms.
The New Zealand health system is unique in four ways.[1] Firstly, it has a ‘no-fault’ compensation for medical injuries. This means that patients cannot sue a doctor or other health practitioner for malpractice in all but the most exceptional of circumstances. Secondly, compensation for medical error is made by a state body, the Accident Compensation Commission (ACC).[2] The ‘no fault’ nature of the compensation means that patients are covered if they are harmed by their medical treatment, but also that no one needs to admit that a mistake was made. Patients are covered whether their treatment injury was caused by negligence or by a poor outcome due to a rare complication. This makes it difficult for the system to learn from error. Thirdly, there is a legislated Code of Health and Disability Services Consumers’ Rights (The Code) which enshrines informed consent for health and disability interventions as a patient right.[3] The legislation mandates an independent Health and Disability Commissioner (HDC) which is the fourth way that the NZ system is unique. The HDC’s role is to investigate and adjudicate complaints about medical and disability health services.[4] The effect of this body means that New Zealand (at least theoretically) has a medical complaints system separate from, and independent of, professional disciplinary processes.
When introduced, this system moved patient complaints from the control of the health professions into the arena of human rights’ legislation adjudicated by a Health and Disability Commissioner. This Commissioner was given broad powers to investigate breaches of The Code, advocate for patients and recommend remedies. However, Commissioners of Health and Disability Services have become increasingly ineffective so that nowadays the majority of patient complaints are not investigated at all.
Commissioners are not, as was originally intended, Officers of Parliament, but appointed on the recommendation of Cabinet. Therefore, they are dependent on the patronage of the political party in power whose goal may be to restrain restive ‘consumers’ while reducing the costs of complaints. The first Commissioner, Robyn Stent, thoroughly reviewed management, and clinical performance at Christchurch Hospital. But subsequent Commissioners have been encouraged, not least by a constantly sinking lid on funding, to be less active. Complainants have often found themselves in a dead end. They may be confronted by a hostile Accident Compensation Commission and have no route to appeal the HDC’s decisions.
As discussed, if patients are covered under the ‘treatment injury’ provisions of ACC, patients injured by ‘gender medicine’ and surgery cannot sue doctors or the organisations they work for. In other countries, by contrast, these patients injured by ‘gender transition medicine’ are beginning to sue their health providers for physical and psychological damage associated with the treatment they have received. Overseas financial settlements for negligence and malpractice are beginning to cost providers and their insurers substantial sums. Many New Zealand patients are unaware of the legal immunity to costly damages enjoyed by doctors and other health providers here, but doctors’ insurers most certainly are aware.
The lack of financial penalties for doctors in the no-fault system could explain the reason why New Zealand has adopted extreme policy positions such as Sex Self-ID, and a very high use of ‘gender affirming care’ especially in the case of high rates of puberty blocker prescriptions.
Most European countries with tax funded, centrally organised, publicly provided health systems have already put the brakes on gender transition medicine’. By contrast those, such as the USA, with insurance-based, for-profit health systems have been slow to do so. Insurance based systems are, however, becoming increasingly sensitive to the costs of accumulated patient legal actions for negligence and medical malpractice and are being inundated with lawsuits, including class action suits, for damages to restrain these practices. Australia has a hybrid system and health insurance is highly subsidised by the Australian Federal Government, which tightly controls health insurance providers.
There are other background factors to note about the New Zealand situation. The Code and the Health Commissioner were singular achievements of the Women’s Health Movement. The move of patient’s rights to a human rights environment was a key part of the reforms, initiated by the Cartwright Inquiry of 1987-1988, which focused on the treatment of women within the medical establishment. The submissions of Fertility Action, other women’s health groups and the Ministry for Women presented the blueprint for the human rights approach for medical injury to the Cartwright Inquiry.
The New Zealand system was intended to allow harmed patients to avoid engaging in long and costly legal action while guaranteeing compensation for injury via ACC.[5] The Health and Disability Commissioner Act 1994 came into force in 1996 once The Code had been established. Patients could initiate medical complaints directly. The onus for compliance and enforcement of The Code became the responsibility of a commissioner with wide powers acting independently of professional bodies such as the New Zealand Medical Council with its vested interest in disempowering patient complaints.[6]
The core of New Zealand’s unique system is that The Code is based on the patients’ right to ‘informed consent’. But the terms of The Code are drawn up and defined by the Commissioner and, in practice, are dependent on her or his willingness to enforce them.[7]
At the time that the Health and Disability Commissioner and the Code were established, Parliament also introduced a welter of other legislation which reduced the effectiveness of the Cartwright Reforms. In 1990 a National (centre right) Government “came into office with an ideology of transforming health and social services into markets”.[8] In July 1993 the National Party’s Health Minister Jenny Shipley initiated the transformation of our tax-funded public health system into an insurance based, for-profit model. Over the intervening years, the public health system in New Zealand has been almost imperceptibly morphed into a system which is more based on market imperatives than on publicly provided care. Patients are nowadays health consumers and doctors are providers of health services. The interaction is regarded by policy makers as little more than market transactions between theoretical ‘demanders’ and medical ‘suppliers’.
This position was set fast in legislation in 2002 when the Labour/Alliance Government passed the Health and Disability Services (Safety) Act.[9] This transferred responsibility for oversight of The Code and the conduct of health providers from Ministers to the Director General of Health, the bureaucrat who heads the Ministry of Health.
After that, Parliament could no longer question Ministers about treatment or lack of treatment provided by various health and disability providers, even when they were funded directly by the Government. MPs could no longer hold the Government publicly accountable for health services. Public providers became no more publicly accountable than private health companies. When MPs could no longer ask questions in the Parliament about the actual treatment of patients, the actual performance of the public health service slid obligingly out of public sight.
INFORMED CONSENT
The Code explicitly rests upon the principle of informed consent. However, ‘medical transition’ can meet neither the ‘informed’ nor the ‘consent’ component of informed consent, each of which raises significant issues.
CONSENT
In New Zealand there are no specific age limits below which patients (i.e. ‘health consumers’) cannot ‘consent’ to health treatments on their own behalf. This is consistent with the presumption of a market in health and disability services. Yet it is common to find legislation about age limits applied to various other aspects of citizenship, such as the age at which people can vote, or marry, or hold a driver’s licence.
When it comes to health provision, by contrast, Right 7 of The Code states that “…every health or disability consumer must be presumed to be competent to make an informed choice and give informed consent unless there are reasonable grounds for believing that the consumer is not competent”.
The Code therefore creates a presumption of the competence of health consumers of any age to give or withhold consent. This applies not just to medical but to any ‘health’ or disability treatment. Right 7.2 of The Code states that children are entitled to the rights given to all health and disability consumers so long as they are ‘competent’ to decide for themselves.
This is consistent with a judgement of the British Court in 1985 which established that an underage person could give consent to a medical procedure without parental guidance or knowledge if they were of sufficient ‘intelligence’ and ‘maturity’ to understand the consequences of their actions. These are called the Gillick Criteria for judging competence. The Gillick Criteria have never been tested in a New Zealand court.[10] Nevertheless, as interpreted in terms of The Code, these criteria appear to have been widely adopted by members of the medical community.
In late 2020, in the case of Bell v. Tavistock, the British Court considered whether children under 16 could be Gillick competent to consent to ‘gender transition medicine’. The Court decided that in the case of gender transition the answer “will almost always be no”. However, in 2021 the British Court of Appeal found that it was for clinicians rather than courts to decide these issues. This means that in practice in the UK the determination of competence is made by the treating doctor.[11]
A key safeguard in the Gillick judgment is the requirement for doctors to make “every reasonable effort” to persuade a competent child to involve their parents before providing treatment without their knowledge, while also considering any relevant safeguarding concerns.[12] The judgment is based on the context of medical care in the 1980s, where the doctor had an established relationship with the child and their family, allowing thoughtful decisions about competence and consent, with an understanding of the family’s values and dynamics.
In modern clinical practice, where encounters are often rushed and one-off, the depth of judgment envisaged in Gillick –including understanding "moral and family implications" – is much harder to achieve. It has become common for doctors to accept a child's statement – “I can’t tell my parents” – at face value, without exploring its basis or encouraging parental involvement. In time-pressured settings, especially where the doctor has no prior relationship with the family, this can reduce the Gillick test to a procedural formality rather than the careful, contextual assessment the judgment intended. As a result, claims of Gillick competence risk losing credibility – not because the legal standard is flawed, but because its practical application no longer reflects the professional relationships and conditions the judgment presupposed.
In New Zealand the question is further complicated by New Zealand’s ‘gender affirming health care’ guidelines. The PATHA (Professional Association of Transgender Health Aotearoa) guidelines (2018) reiterate that it is unethical for any registered health or disability professional to question any person’s chosen gender identity.[13] These guidelines - the ‘Oliphant Guidelines’, received the second to lowest quality assessment score from the range of transgender health guidelines considered by the Independent UK Cass Review commissioned by the NHS.[14] The NZ Primary Care Gender Affirming Hormone Therapy Initiation Guidelines (2023)[15] enable cross sex hormones for adults to be prescribed by GPs and Nurse Practitioners without oversight from medical or psychological specialists. These guidelines also impel the affirmation of the patient’s chosen genders.
Right 7 of the Code provides the grounds on which a health practitioner can choose to treat a person seeking ‘gender transition medicine’. These are that either 1) a consumer who is judged competent to consent can provide informed consent for a medical intervention, or 2) if the consumer is judged not competent, a parent or guardian can provide consent on their behalf, or 3) if no such person is available, the treating clinician can provide treatment, depending on what they consider to be that consumer's best interests. But when it is read in conjunction with the ‘gender affirming’ health guidelines the (PATHA) guidelines, the provisions of Right 7 make it difficult for practitioners to withhold treatment. Practitioners with professional concerns about the safety or ethics of ‘gender trans-medicine’ may find themselves thus placed in a regulatory bind.
In New Zealand, only ‘affirmation care’ can be tendered as advice to a young person seeking transition treatment. It means that children and their parents have, in effect, no right to learn about the pros and cons of treatment before they give their consent. They do not even have the right to appoint a non-medical advisor, such as a parent, to help them make a decision.
These developments have created serious consequences in New Zealand. For example, the head of one of New Zealand’s largest providers of psychiatric, clinical psychological and counselling services explained to me that doctors and therapists frequently choose not to treat children of 14 and 15 at all, thus potentially excluding those children of an age when they might benefit most from therapy, because they are worried about the professional and legal implications involved in establishing valid consent.[16]
The issue of young people under the age of 16 consenting to ‘gender transition medicine’ brings these confusions to prominence because treatment with puberty blockers is directed at pubescent children who are, by definition, immature. The New Zealand affirmative guidelines recommend blockers start at Tanner stage two of puberty, which is normally reached between 9-11 in girls and 11-12 in boys. This is a stage when puberty is barely perceptible.[17] Unsurprisingly, there is anecdotal evidence suggesting that some New Zealand GPs are reluctant to engage with young people seeking medical transition and quickly refer young people directly to Gender Clinics. These single-issue clinics operate under the ‘Gender Affirming Guidelines’ endorsed by the Ministry of Health.
THE RIGHT TO BE INFORMED
Right 6.2 of the Code states that “every consumer has the right to the information that a reasonable consumer, in that consumer's circumstances, needs to make an informed choice or give informed consent”.[18] But that right is a nullity if the requisite information to make it meaningful does not exist.
Unfortunately, medical science has yet to provide the information upon which informed consent to ‘gender transition medicine’ must be based. There is some suggestive evidence of efficacy of some parts of some treatments. But suppliers of these interventions have rarely kept consistent, long-term follow-up information about their patients. There still have been no valid long-term follow-up studies of the consequences of the various treatments for particular groups of any age. Most seriously, there are no valid systematic reviews of evidence that might establish the long-term safety or effectiveness of ‘gender transition medicine,’ including puberty blockers.
Systematic reviews, despite some significant limitations, are the foundation for evidence-based medicine [EBM]. They examine all the published evidence about a particular medical topic. The identified studies are then arranged in a hierarchy of validity which considers issues of methodology. This includes identification of the issues to be studied, i.e. what you are studying; the adequacy of the analytic tools applied i.e. how you are studying it; and, the issues of who you study i.e. the sample size and definition.
At the bottom of the hierarchy of evidence considered in a systematic review are studies based on small, selective, potentially biased samples of short duration. These include telephone questionnaires or studies based on self-selection such as online quizzes of members of particular organisations or of particular demographics. They draw evidence from a narrowly defined group at a particular time and location. This means their findings and conclusions are not generalisable to larger populations in a variety of situations. Such studies are regarded as non-reliable, and therefore, invalid sources of general medical information.
The most comprehensive systematic study of ‘gender transition medicine’ for children and young people is the Cass Review. When the British publicly-funded agency responsible for health, NHS England, was faced with uncertainty about the safety and efficacy of “services treating children and young people experiencing issues with their gender identity” it commissioned thorough reviews of the evidence now known collectively as the Cass Review.[19] Cass based her conclusions on a series of systematic reviews of the evidence about ‘gender transition medicine’ from the specialist NHS Study Unit at York University. The Cass Review also considered reviews undertaken elsewhere.
The Cass Review concluded that around 50 studies of “gender transition medicine” did not meet the requirements for general validity. Some of these studies which did not meet Cass’s criteria have, nevertheless, proved influential with New Zealand media. Some have even been used by policy makers advising agencies of the New Zealand Government. New Zealand’s Ministry of Health produced an Evidence Brief, "Impact of Puberty Blockers in Gender-Dysphoric Adolescents" late last year along with an MoH "position statement". The evidence brief mainly aligns with the Cass Review but is much less thorough and does not offer conclusions.[20] Controversially, the MoH opened public consultation on the issue of puberty blockers in January/February this year.
Prior to that review gender transition medicine guidelines in New Zealand have been based on flimsy sub-standard foundations. When the Oliphant Guidelines were first published in the New Zealand Medical Journal they stated without adequate evidence that “puberty blockers are considered to be fully reversible,” which is unsupported by good evidence and without appropriate limitations.[21]
Great caution is needed in the provision of ‘gender transition medicine’ especially in the case of minors. In part this is because in medical markets there is a fundamental imbalance in knowledge and experience between demanders and suppliers. In market transactions the patient is the customer who is, however, generally at a disadvantage. This is particularly true when there is little or no reliable information to guide choices.
‘Gender transition medicine’ is the innovative edge of ‘appearance medicine.’ It epitomises market medicine. In the absence of soundly-based long term evidence about the impacts of medical transition the mere appearance of the product may affect customer satisfaction. For example, the treatment of girls with testosterone is reported to initially produce a sense of invincible energy and confidence. In the medium to longer-term, however, suppression of oestrogen will not only masculinise the girls’ appearance but also lead to problems with atrophy of their pelvic organs, including incontinence, and health issues which are usually associated with menopause and treated in mid-life women with oestrogen.
When medical markets create more problems than they solve, their customers remain demanders for life. Requiring informed consent is inconsistent with New Zealand’s ‘gender affirming health care’ guidelines. These require practitioners to recognise and affirm a patient’s chosen gender although these practitioners may have scientifically based reservations about the guidelines’ empirical foundations.
Conclusion
A safe health care system should be built on the principles of patient’s rights, practitioner accountability, and evidence-based care. Yet, in New Zealand, the confluence of a no-fault ACC scheme, which avoids the medical system considering its mistakes, an overstretched financially starved and ineffective complaints system, and a policy environment that embraces ‘gender-affirming care’ without robust evidence has compromised these foundations. In particular, the standard of informed consent—especially for vulnerable groups such as children and adolescents—has been eroded. The failure to critically evaluate the evidence base, ensure clinical guidelines are written neutrally and can respond to new information, and for regulators to provide rigorous oversight has left significant gaps in patient protection.
[1] Bunkle, P. (1992). Becoming Knowers: Feminism, Science, and Medicine. Feminist Voices: A Women's Studies Text for Aotearoa/New Zealand, p.59-73. Oxford University Press. The Cartwright Inquiry was a judicial inquiry which heard evidence for years. National Women’s Hospital delayed treatment of women’s pre-cancerous lesions of the cervix and genital tract resulting in the consequent development of invasive cancers causing injury and sometimes death. The women’s health organisations represented at the Inquiry recommended that the system which placed the medical profession as sole arbiters of the reality against which patients’ credibility was evaluated needed to be balanced by placing the patient’s perspective at the centre of health services.
[2] Korte, C., Astill, D., Gibbons, K., Claridge, S. (2023). Are our medical harm reporting systems effective? Are People Safe? October Health Consumer Advocacy Alliance. October. Auckland, Consumeradvocayalliance.co.nz
[3] Paul, C., Tegg, S., Donovan, S. (2024). Use of puberty-blocking hormones for gender dysphoria in New Zealand: descriptive analysis and international comparisons. NZ Med J, 137(1603),79-88. doi: 10.26635/6965.6587. PMID: 39326021.
[4] The effect on the American medical liability and insurance system of President Trump’s declaration that the Federal Government recognises only two sexes has yet to be ascertained.
[5] The blueprint for the Health and Disability Commissioner and The Code, as submitted by Fertility Action to the Cartwright Inquiry, was intended to empower patients such as Claire Matheson. It was Claire's complaint about years of delay in treating her pre-cancerous and cancerous cervical abnormalities that sparked the Inquiry. Fertility Action’s blueprint for reform placed the onus for the enforcement of patient’s rights upon a powerful Commissioner representing patients’ interests independent of medical professional interests.
[6] When Claire Matheson, the original informant in National Women’s Hospital had initially attempted to prevent further harm to patients, she was faced with “the choice of proving medical misadventure through the Accident Compensation Corporation… and recouping some costs or taking a complaint to the Medical Disciplinary Committee.” She “had to decide between ACC, which would have been good for me personally, or protecting other women”. Bravely she chose the latter and found herself alone in a courtroom subjected to a prolonged, intimidating and highly professional cross examination by lawyers acting for the doctors and hospital’s insurers. “They went through all my personal files …I can only liken it to a rape case, I felt so exposed and vulnerable.” But Claire’s action meant that she obtained her Patient Notes containing the true record of her treatment. This proved invaluable in establishing the truth and understanding about what had happened in the Unfortunate Experiment. Claire’s ordeal and that of many women like her is why the Women’s Health Movement advocated a human rights approach to Patient’s Rights and a no-fault system for medical injury. Bunkle, P. (1988) Second Opinion, the Politics of Women’s Health in New Zealand, Oxford University Press, p. 174. Auckland.
[7] Lynda Kaye counsel for The Ministry of Women’s Affairs, “Informed consent was to be at the heart of the Code of Health Consumers Rights,” quoted in Phillida Bunkle, “Side-stepping Cartwright: The Cartwright Recommendations five years on” in Coney, S. (1993). Unfinished Business, Women’s Health Action, p.55. Auckland.
[8] Coney, S. (1993). Unfinished Business: The Cartwright Report: Five Years on, in Coney, S, (Ed) Unfinished Business Writings on the Aftermath of the ’Unfortunate Experiment‘ at National Women’s Hospital, Women’s Health Action, p. 46. Auckland.
[9] With negligible opposition from any parliamentary party. Criticism of the implications of this Bill not only sealed my fate but ensured that MPs from opposition parties (including the Greens) could no longer ask effective Parliamentary questions about the health service. The public largely ceased asking parliamentarians vital questions and MPs became less informed about the real performance of the health services. Without a meaningful Parliamentary opposition, the media and public response to the medical scandal of gender Transition Medicine has been muted.
[10] McLean, K. (2000). Children and Competence to Consent: Gillick Guiding Medical Treatment in New Zealand. Victoria University of Wellington Law Review, 32,.551-576.
[11] The grounds of British court judgements have been generally to keep open options until the person has sufficient maturity to make an informed decision
[12] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL)
[13] Oliphant, J., Veale, J., Macdonald, J., Carroll, R., Johnson, R., Harte, M., Stephenson, C., & Bullock, J. (2018). Guidelines for gender affirming healthcare for gender diverse and transgender children, young people and adults in Aotearoa New Zealand. Transgender Health Research Lab, University of Waikato. https://researchcommons.waikato.ac.nz/entities/publication/e57d0714-dd18-4dc4-a7cb-ae9ad3b758d3
[14] The Cass Review (2024). Final Report https://webarchive.nationalarchives.gov.uk/ukgwa/20250310143933/https://cass.independent-review.uk/home/publications/final-report/
[15] Carroll, R., Nicholls, R., Carroll, R. E., Bullock, J., Reid, D., Shields, R., Johnson, R., Oliphant, J., McElrea, E., Whitfield, P., & Veale, J. (2023). Primary Care Gender Affirming Hormone Therapy Initiation Guidelines. Aotearoa New Zealand guidelines for commencing GAHT for adults in primary care. https://patha.nz/Guidelines
[16] These guidelines provide tacit evidence of a reluctance by many practitioners to engage in “gender transition medicine”, stating that “it can be challenging to find a mental health professional to make a judgement on whether a patients’ gender.…is valid” and conclude that “it is challenging to find a mental health profession to conduct this assessment at all”. The Guidelines cite the “the limited number of mental health providers prepared to “take on” assessment or treatment with cross sex hormones. Carroll, R., Nicholls, R., Carroll, R. E., Bullock, J., Reid, D., Shields, R., Johnson, R., Oliphant, J., McElrea, E., Whitfield, P., & Veale, J. (2023). Primary Care Gender Affirming Hormone Therapy Initiation Guidelines. Aotearoa New Zealand guidelines for commencing GAHT for adults in primary care. https://patha.nz/Guidelines
[17]Ibid
[18] Health and Disability Commissioner. (1996). The Code of Health and Disability Services Consumers' Rights. https://www.hdc.org.nz/your-rights/about-the-code/code-of-health-and-disability-services-consumers-rights/
[19] The Cass Review. (2024). Terms of Reference. https://webarchive.nationalarchives.gov.uk/ukgwa/20250310143822/https://cass.independent-review.uk/about-the-review/terms-of-reference/
[20] Ministry of Health. (2024). Impact of Puberty Blockers in Gender-Dysphoric Adolescents: An evidence brief. November, Wellington, MOH. https://www.health.govt.nz/publications/impact-of-puberty-blockers-in-gender-dysphoric-adolescents-an-evidence-brief
[21] NZMJ 14 December 2018, Vol 131 no 1487 ISSN 1175-8716. www.nzma.org.nz/journal
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