Ask the Lawyer: What do I do if my gender reassignment surgery goes wrong?
PinkNews brings you the latest in a series of features which sees your real questions answered by leading lawyers at Simpson Millar.
The question comes from a reader who is scheduled to undergo gender reassignment surgery, but who is worried that it could go wrong.
They ask: “I am scheduled to start Gender Reassignment Surgery (female to male) next year, but I am worried about the surgical complications. What if the surgery goes wrong? Will I be able to do anything about it?”
A Simpson Millar lawyer answers, saying: “A 2008 General Medical Council document entitled ‘Consent: Patients and Doctors Making Decisions Together’ has the following information, which you might find useful:
The doctor explains the options to the patient, setting out the potential benefits, risk, burdens, and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice. The patient weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which one.
“The above approach was endorsed in the landmark Supreme Court case of Montgomery v Lanarkshire Health Board (2015).
“This means that the treating doctor has a duty to take reasonable care to ensure that you – as the patient – are aware of any material risks involved in your gender reassignment surgery and also of any reasonable alternatives.
The lawyer adds: “The test of materiality is fact-sensitive, but in essence is whether you – as the patient – would be likely to attach significance to the risks involved with gender reassignment surgery, or your doctor is or should reasonably be aware that you are likely to believe the risks are significant.
“If your doctor has explained all of the risks associated with gender reassignment surgery, enabling you to give your informed consent, and you experience one or more of these issues as a result of the surgery, then your doctor will have a good defence against a claim for compensation.
“But, if you suffer from an injury due to negligently performed surgery or a known complication of the surgery that you weren’t warned about, and you wouldn’t have consented to the surgery if you had been warned, you might be able to make a claim for compensation.”
If you’d like to discuss your concerns in greater depth before your surgery, get in touch with one of Simpson Millar’s Medical Negligence solicitors on 0800 260 5005 or click here to request a call-back.
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