MDA National Statement July 2023

MDA National is a doctor-owned, membership mutual who has been providing indemnity to doctors for close to 100 years. We have doctors embedded at every level of our organisation helping to inform what we do every day. We are 1 of 6 Medical Indemnity Insurers (MII) providing medical indemnity to Australian doctors. We are apolitical and realise that we play just a small part in the overall ecosystem of Australian healthcare. As a membership mutual, our primary obligation is to protect our Membership.

In response to the risk of potentially high-value claims arising from irreversible treatments provided to those who medically and surgically transition as children and adolescents, MDA National is restricting cover for practitioners in private practice. Effective 1 July 2023, MDA National will limit cover for certain claims arising from the treatment of gender dysphoria in children and adolescents.

Please be aware that the policy exclusion is limited in its scope and cover still applies for the following treatments:

• prescribing of puberty blockers to children for the purposes of treating gender dysphoria;
• for Paediatric Endocrinologists, provision of cross-sex hormone treatment to patients under 18 who have a diagnosis of a disorder of sex development / developmental variation of sex characteristics;
• any other healthcare services to children or adolescents who have gender dysphoria;
• the treatment of patients who are 18 years or over;
• legal representation at an investigation or inquiry arising from the assessment of suitability for medical and surgical transition or initial prescribing of cross sex hormones for patients under 18
• support and advice you provide to patients considering social or legal gender transition
• assessment of suitability of gender transition and initial prescribing of cross hormones undertaken prior to 1 July 2023

We will not cover a practitioner or make a payment when the claim against the practitioner arises in any way out of:

a) their assessment that a patient under the age of 18 years is suitable for gender transition; or

b) them initiating prescribing of gender affirming hormones for any patient under the age of 18 years

NB: For clarification, gender affirming hormones (for the purposes of this exclusion) specifically means cross-sex hormones.

Assessment of suitability for gender transition for patients under 18 years refers to the process of evaluating whether a child or adolescent who is experiencing gender dysphoria is appropriate to commence gender affirming hormone therapy, surgery or other medical interventions to transition them to their identified gender. It does not refer to social or legal transition.

We appreciate this is a sensitive and complex issue however, we have made this decision by reviewing the medico-legal risks. We have been deliberate and targeted in the areas of exclusion to ensure that we are focusing only on those areas that we believe present the greatest risk of future claims, and importantly are still supporting the treatment and care of gender dysphoria in patients under 18.

As you will appreciate, children are not able to transition without relying on the assessments of medical professionals. This places doctors in a uniquely vulnerable position with respect to future litigation. Particularly so, if Courts take the view that the practitioner has influenced a child’s decision to medically or surgically transition and that there are limits to a child’s understanding and what they effectively consent to. This has led to our view that medical practitioners who assess children as being suitable for transition and /or who initially prescribe cross sex hormones are at a heightened risk of receiving claims, irrespective of the strength of the consent process and the standard of care or the model of healthcare in which it is provided.

Compounding the situation, we are aware:

• there is growing criticism globally of the research that underpins medical and surgical transition of children in response to gender dysphoria;
• recent studies suggest the real rates of detransition or discontinuance are much higher than the previously reported 1% or 2%; and
• there has been a dramatic increase in demand for these services from children in Australia
• with regard to people under 18, the Courts are likely to allow claims for many years after the statutes would normally allow.
• this risk exists even with the consent of the parent(s) and /or the family court.

Even though practitioners working in this space provide the very best healthcare and do everything that normally affords a robust defence in the face of a claim, ultimately, there is very little a practitioner can do to protect against claims from those who, with the benefit of hindsight, believe their care should have been managed differently.

We understand MDA National plays only a small part in the overall ecosystem of transgender health and we do not make any commentary on the appropriateness of the informed consent model of gender affirming care. We are simply stating that, as a doctor-owned organisation, we must act in the best interest of all our doctor members with respect to future claims, which are not paid for by the government, advocacy associations or the individual doctors that may be sued. The cost of these claims must be covered by the broader MDA membership, which is made up largely of private practising doctors. Any comments that we have made are to explain our rationale when questioned, and we have never intended to offend.

We are monitoring this area of emerging risk and the legal landscape and will continue to regularly review our policy coverage based on emerging claims data.

Have a question?

For any Member Services related queries, please contact us via email at peaceofmind@mdanational.com.au. If you have any media related inquiries, kindly email us at brandcomms@mdanational.com.au.