Letting Them Down? Thoughts on the Work of Bernadette Wren, Head of Psychology at the Tavistock Clinic …

… and what it means for young transgender people in the UK.

This is a blog that we’ve* kind of written twice. This first part is a summary of what we want to say and why.

What comes after that is a detailed academic commentary drafted in response to an article written by Bernadette Wren. Wren’s article was published in an academic journal in 2014. We raised concerns with the journal. They invited us to submit a full commentary. Ultimately they declined to publish: this topic is relevant only to England, and the original article had been published in 2014. Wren has not published any comparable work since, and this source suggests none at all since 2016.

Wren is the Head of Psychology at the Tavistock Clinic, which is England’s only NHS Gender Identity Development Service (GIDS) for children and young people. As such, Wren occupies a highly influential position.

As allies, we want to understand transgender thinking and practice. We read a lot of “soft” information via social media, but are aware of its limitations. We were delighted to find a free-to-view, peer reviewed article, written by a leading name in the field in the UK, in a respected journal, on the very topic we are interested in.

Our delight was, unfortunately, short-lived.

We were struck by what we saw. Fundamental deficiencies in all of the following:

  • research design and analysis,
  • theoretical considerations,
  • questions over ethical and clinical behaviour,
  • discussion of power relations.

Wren’s article lacks a basic academic rigour, and her position at the Tavistock means this matters to trans youth in practice.

Our Summary

We have done our best to summarise the article.

Wren sets out with one key question:  if we do not believe in gender as a fixed concept, “how do we justify supporting trans youngsters to move toward treatment involving irreversible physical change?” She includes some general ideas about the role of clinicians working with young people at the Tavistock.

Her understanding of postmodernism, and how it links to gender and clinical practice is:-

  • Postmodernist thought rejects the idea of gender as fixed; this depathologises being a trans person.
  • A clinician “cannot always claim to be right,” but a client must be “prepared” to “live with conflict and contradiction”.
  • “Psychic turmoil” resulting from questioning narratives “must be weathered”.

Wren identifies four possible grounds on which a clinician might seek to “justify” treatment for trans youth. She concludes that none of the following:

  •  actually listening to young people,
  •  neurobiological research,
  •  normative developmental accounts,
  •  psychological adjustment research,

provide “strong or evidential support” for treatment.

Wren states a “good” clinician must consider “ways in which services may present medical interventions as a way to side-step psychological dilemmas” (our emphasis).

Wren’s seems to think she is steering a neutral and reasonable middle course between mainstream clinical opinion on UK adults, the gender critical ideology of a vocal minority of theorists, and gender affirmative practice, mainstream in Australia, Canada and the USA. She isn’t.

Our Commentary

This article’s research design, its claims, and the practical consequences for the lives of vulnerable young people are of concern. Clinicians could regard this work as authoritative. But the design of the article is muddled and lacks analytical sharpness. Any claims made by the article are therefore highly problematic.

1.1    Epistemological Considerations

Throughout the article there are hidden mergers of categories. Wren doesn’t think “enlightenment” thought and “postmodern” thought are comparable. But she proceeds to compare them in clinical practice. So, for Wren, the incomparable is comparable?

1.2    Practical Impact

Wren’s academic narrative is dismissive of young people’s rights, identities, and narratives. All young people attending a clinic of this kind within the English NHS will have had a long wait time and several months of exploration. Cisgendered young people are not expected to spend months explaining their settled gender.

Also, Wren’s lack of discussion of her role as gatekeeper (mentioned once), and also as a champion and advocate for transgender youth (not mentioned at all), misses important implications of her position.

2.1    Ethics and Justice

Wren’s argument is based on clinicians’ ethical behaviour. But not discussing what kind of ethics she has in mind is fatal to the research design. An undergraduate student who wrote an essay in this way would be asked to rewrite it.

Wren suggests there is “received wisdom” about trans narratives, that “ethical” clinicians should therefore be suspicious of when they hear them. Following this logic would involve a return to the 19th century notion of the patient/clinician relationship, leaving power with the personal preferences of the clinician. Patient autonomy addresses (gendered) power imbalances between patient and clinician. Wren’s approach turns the clock back.

There is a place for theoretical as well as empirical work, but it is striking that Wren offers no evidence from her own clinic about the effectiveness or otherwise of her approach, or any tracking of her patients’ outcomes.

2.2    Practical Impact

Wren treats “do nothing” as a neutral option. Exploration of outcomes for young people for whom no clinical action is taken is absent. A clinician must seek justification for starting a young person on hormone blockers or cross-sex hormones, but Wren doesn’t question the decision to withhold such treatment.

Everything rests on the clinician’s assessment of the right course of action, which is why Wren’s code of ethics should be made explicit, to ensure a “good” clinician is being advised to act on anything other than their own feelings.

Also missing from Wren’s account is any sense of the pain and sadness that most trans youngsters experience. A reader could think a clinician’s role in the Tavistock clinic is to facilitate fascinating, leisurely discussions with ungrateful teenagers.

The reality faced by many trans youth and their families is of sadness, shame, isolation, bullying, assault, suicidality, self harm, lost education and missed opportunities.

Wren’s account undermines and dismisses the voices and experiences of trans youngsters. She describes young people as demanding and entitled, playing games, trying to manipulate.

According to Wren, postmodernist thinking has helped de-pathologise “non-normative” practices such as being trans.  

However her thinking stops there. She might have asked, if being trans is not a mental illness, what could this mean for clinicians?  If being trans is part of the spectrum of normal human behaviour in adults, how should children who say they are trans be treated? If trans adults tell us they knew they were trans as youngsters, is a period of dysphoric misery necessary? Could a clinician do better?

The practical impacts here are plain: continued “do nothing” often means continued sadness, increased risk and untreated dysphoria.

3.1    Power

Power is central to Wren’s article, and the structures she draws on within her writing.  It is extraordinary therefore that it is either absent, or muddied, throughout the article. Power is recognised in her account of binaries of modernist/enlightenment thought. But it is missing entirely from the article’s abstract, and the parts towards the end of the article about clinical practice. There are four main problems with this approach

  • The undermining way Wren describes young people is an attempt to silence them. There is no consciousness of the imbalance between the clinician’s power and the powerlessness of young trans people and their families.
  • The power dynamic between cisgender clinician and gatekeeper, and the ‘other’ of the patient/client is never discussed.
  • Wren contradicts herself by failing to talk about how power influences client/clinician relationships.
  • The opacity of the language used throughout the article should be considered a power-play. Communication that is not readily understandable becomes an exercise of dominance.

3.2    Practical Impact

Wren’s tone-deaf narrative, that as a clinician she favours a “playful, creative”, philosophical and academic approach contains no sense of urgency for a group of young people at high risk.

Stating that medical interventions close the door on the “rich and creative possibilities of self-invention in a gendered life”, Wren doesn’t address what this means in terms of power.  The young person should unpack their gender identity, have it examined and left in a state of uncertainty. The clinician – especially the cis clinician – will never be expected to do the same.

Wren chooses not to examine the power inherent in a monopoly service such as the one she heads. In a state-funded NHS, a second opinion is not allowed, accessing private medical care means you lose your NHS entitlement. The clinician has almost all the power, a young person who is trans or gender-non-conforming has almost none.

Conclusion

Influential authors, such as Wren, are respected in their academic fields, and in practice. That respect is why we must talk about Wren’s article. Her position could be taken as accurate, and left unquestioned. But even as non-experts in the field of gender studies we found inconsistencies, errors and a fundamentally flawed research design.

In the UK, the outcomes for most trans young people are the responsibility of clinicians like Wren and those who work for her. This kind of writing will form the basis of future decision-making on behalf of our transgender youth.

It is imperative that it is clear, conceptually sound, ethically rigorous, attentive to power balances and imbalances, and contains at least an acknowledgement of its potential  real-world impact.

*Who are we? We are allies and parents of trans and non-binary children and teenagers with academic backgrounds, but none of us specialise in gender studies. Tamara Hervey, LLB PhD FAcSS PFHEA, is Jean Monnet Professor of EU Law at the University of Sheffield, UK; Josella Hervey, BA, BPhil, is a specialist teacher of children and young people with visual impairment; Stella Hervey Birrell, BA, is a writer.

**Photo credit https://www.publicdomainpictures.net/en/view-image.php?image=264113&picture=abstract-art-5

Commentary on Wren

 

Full Commentary on Bernadette Wren, Thinking postmodern and practising in the enlightenment: Managing uncertainty in the treatment of children and adolescents, published in Feminism and Psychology/ 2014, Vol. 24(2) 271–291. Originally submitted to Feminism and Psychology on the invitation of its general editor, following correspondence.

Tamara Hervey, Josella Hervey, Stella Hervey Birrell.*

*The authors of this commentary are allies and parents of trans and non-binary children and teenagers. We all have academic backgrounds, but none of us specialise in gender studies. Tamara Hervey, LLB PhD FAcSS PFHEA, is Jean Monnet Professor of EU Law at the University of Sheffield, UK; Josella Hervey, BA, BPhil, is a specialist teacher of children and young people with visual impairment; Stella Hervey Birrell, BA, is a writer.

Introduction

In a world where fake news, cod science and click-bait headlines are easy to produce and circulate, the search for “hard”, authentic information becomes ever more fraught. In this context, the role of the peer reviewed journal article is crucial. Peer review is the gold standard of authenticity. It warrants that the theory, methodology, data and analysis in a published work are reliable, in the view of independent experts in a particular field of study. Research published in academic journals is, of course, primarily aimed at academic audiences: scholars in all disciplines write for their peers. Academic research is often published behind a pay-wall, making it inaccessible in practice to those who do not have an institutional affiliation that gives access, or significant independent resources. But the world of the academy does not sit outside of “the real world”: its “ivory towers” inhabit the same space as that of non-experts. Indeed, in many countries, including our own, and indeed that of Wren, academics’ work is expected to have an impact outside of academia.

As non-experts in gender studies, but as allies, who seek to understand the “state of the art” in trans scholarship and clinical practice, we readily admit to being avid readers of “soft” information that circulates through social media and other virtual channels. We are acutely aware, though, of the limitations of that type of information, and we treat it accordingly. So it was a particular delight for us to come upon a free-to-view, peer reviewed article, written by a leading name in the field in the UK, in a respected international journal, on the very topic in which we seek to educate ourselves.

That delight was, unfortunately, short-lived.

We were so struck by what we see – even as non-experts – as fundamental deficiencies in Wren’s research design, and thus analysis, that we took the unusual step of writing to the journal’s editors. They have generously suggested that we explain our views in a commentary. In what follows, we attempt to summarise Wren’s argument, and then to explain three fundamental and interlocking problems with it. These are epistemological considerations; the question of ethical or just clinical behaviour; and power relations. For each, we draw out the implications for real-life clinical situations and explain why it matters in practice.

Our summary of Wren’s argument

Bernadette Wren is the Head of Psychology at the Tavistock Clinic, which is England’s only NHS Gender Identity Development Service (GIDS) for children and young people. She has been involved with GIDS on and off since the 1990s, and as such occupies a highly influential position.

In this section we do our best to summarise the article. We say “do our best” because this is not an easy task. We return to the significance of the opacity of the prose below, but for now we observe that anyone who seeks to communicate does not succeed if it is difficult for an educated reader to understand. Academic communication is no different, and although we of course acknowledge that it is aimed at specialists, it fails in terms of impact outside of the academy if it cannot be understood outside that narrow audience.

Wren sets out to explore postmodernist theories as they pertain to the gender identity clinician working with young people. In particular she aims to engage with one key question:  if we do not believe in gender and gender norms as being any kind of fixed concept, “how do we justify supporting trans youngsters to move toward treatment involving irreversible physical change?” She also uses the article to outline some more general ideas about how she sees the role of clinicians working with young people who are trans.

Wren begins by outlining her understanding of postmodernist thought, with a particular focus on what this means for theories about gender and for clinical practice. It seems to us that the key ideas she highlights include:-

  • Postmodernist thought encourages the questioning of accepted ideas about gender; a rejection of the idea of gender as fixed, monolithic and linear; and the welcome ways in which this can help to depathologise being a trans person, and challenge harmful ideas about what constitutes “deviant” behaviour.
  • The clinician is at one and the same time to bear in mind both that they “cannot always claim to be right” and also that their clients must be “prepared to accept ambiguities and indeterminateness” and “live with conflict and contradiction”. Clinicians and clients must both accept that there are “multiple plausible accounts of what is happening for the client”.
  • “Psychic turmoil” resulting from the clinician’s duty to put narratives “relentlessly in question” (rather than simply “trying to help the client create some order in his or her [sic] narrative”) “must be weathered”.

Wren goes on to identify four possible grounds on which a clinician might reasonably seek the “certainty” to “justify” physical treatment for trans youth. She tackles each in turn, examining strengths and weaknesses, but ultimately concludes that none can provide “strong or evidential support” for such treatments.

The first ground, as we understand it, is what Wren calls “privileged access”, in which a clinician relies on listening to what she is being told by the young person. Because Wren does not agree that trans people are “the ultimate authority on their gender and their relationship to the body”, and because a young person’s story is necessarily subjective, their views are to be seen as, at best, one “story amongst many, with no privileged access to the truth” and at worst “moves in a dialogic game where [the young person] wishes their agenda to dominate”. Wren also claims that “gender and adolescence are characterised by fluidity, changeability and uncertainty”, implicitly more so than other stages of life, such as toddlerhood or menopause.

Next, neurobiological explanations are examined, where Wren puts forward a number of moot points in addition to her observation that, as this work is in its infancy, it can hardly be relied upon by clients or clinicians to justify any course of action.

Normative developmental accounts of trans identity are also rejected as a basis for any kind of action by the clinician. However, Wren observes that although clinicians should be “suspicious” of such narratives, they “should not necessarily be dismissive” of them.

Lastly, Wren suggests that empirical research into young people’s psychological adjustment is also deficient as a guide to the best course of action. For Wren such studies are “vulnerable to postmodernist critiques of modernist science”.  Wren does acknowledge that many such studies “are useful in providing support for the practices of more liberal gender identity clinics”. Within this section, Wren can be understood as criticising “liberal ‘pioneering’ gender identity services” for young people, arguing that they will end up “privileging” those who wish to transition “at the expense” of other trans or gender fluid youth, despite what she describes as  their “rhetoric” about “the value of exploration and the toleration of uncertainty”.

Wren argues that “from a postmodernist perspective” empirical psychological methods “can be seen to inappropriately mimic the natural sciences, thereby concealing the social processes crucial in their production”. She quotes Gergen (1992), that such findings can operate as “truth warrants for a priori commitments to particular forms of value-saturated description” and that, moreover, “no psychological study can rise above moral, ethical and ideological considerations”. As far as we are able to tell, whether Wren similarly discards the findings of psychological research into other areas is not explored.

Wren goes on to offer her suggestions for the clinician. It is her “passionate” belief that the “good” clinician must consider “ways in which endocrinological and other clinical services may present medical interventions as a way to side-step complex psychological dilemmas” (our emphasis). She comments on young people “apparently suffering from disrupted and unreliable attachments” whilst simultaneously calling for clinicians to “be alert to the dangers of a professional preoccupation” with causal and developmental narratives. She seems to be insisting that the clinician must “challenge the attraction of fixed categories and meanings” and compel clients “to try and evolve new meanings”.  She laments the “struggle for effective communication” caused by “impoverished” linguistic resources for talking about trans experiences.

Other points she makes include her wish to promote an awareness of trans identities as being varied, in order to “challenge a passive relationship to diagnosis and classification”.  It is unclear to us who is being criticised as “passive” and why.

Wren’s overall belief appears to be that she is steering a middle course between mainstream clinical opinion in the UK as it pertains to adults, the gender critical ideology of a vocal minority of theorists, and the gender affirmative practice which is now mainstream in Australia, Canada and the USA. But within the article there is no explicit exploration of her vision of what constitutes a “good” ethical clinician.

Commentary

We are concerned about this article’s research design, its claims, and the practical consequences for the lives of young people who are being treated by clinicians who could regard it as authoritative. Overall, the research design of the article is muddled and lacking in analytical sharpness. The claims that the article makes, which rest on this design, are thus highly problematic.

In our position as allies, some of whom have experience of the system within which Wren works, we thought it would be helpful to parse the impacts of this article in a practical sense. Although we recognise that there is a place for academic thought and discussion, we believe strongly that clinicians should be aware of the practical results of their findings for vulnerable transgender youth.  (We include young people who identify as non-binary or gender fluid under this heading.) We also know that critical theorists, including those on whom Wren draws, call for attention to the very practical aspects of power dynamics in the phenomena which they study.

1.1    Epistemological Considerations

Throughout the article, there is a certain hidden elision of categories that is represented at various points in the analysis. The article purports to set up as incommensurable “enlightenment” thought and “postmodern” thought. But its analysis also proceeds on the basis that they are somehow commensurable, in that they are in conflict or tension with each other in clinical practice. There is a hidden elision in Wren’s thinking, to the effect that she maintains that the incomparable are actually comparable. The hidden elision is represented, for instance, here:

“People with clinical responsibilities may experience a troubling tension between what influential postmodern theory suggests about the undecidability and fragmentation in sex and gender categorisations, and the need of trans people for a coherent and settled sense of self.”

That sentence sets in conflict/tension with each other a postmodernist concept (“undecidability and fragmentation in sex and gender categorisations”) and an enlightenment concept (“the need of trans people for a coherent and settled sense of self”). But they cannot be in tension or conflict: they are entirely different types of concept. The latter is – according to the former – a construction – a perceived “need” that comes from the structures that prevail in social interactions and even internal thinking. Postmodernist thinking does not recognise this as a “need” in an objective sense. It conceptualises it as a constructed “need” – one that might well be felt earnestly if we are talking phenomenologically, but which can nonetheless be deconstructed as another binary with “norm”/“other”, and the power relationships that this implies. So people with a “settled coherent sense of self” (the clinicians in this instance) are in positions of power over “others” who do not share that settled coherent sense of self, or who seek it, but for whom clinicians are the gatekeepers to finding it.

The consequence for the overall analysis, and what it means for clinical practice, is significant.

“The young people coming to the service where I work assert passionately uncompromising narratives about their self-identity as male or female, despite the conflicting ‘evidence’ of their sexed bodies. And for the clinician, charged with the responsibility of accepting a young teenager onto a physical treatment programme, it is especially tempting to want some grounding in certainty to justify one’s support of a client in gaining access to hormonal or surgical interventions. But where might this certainty be sought?”

Again, “grounding in certainty” is an “enlightenment” concept. By definition, one cannot find it in a poststructuralist concept.

1.2    Practical Impact

We would go as far as to say that Wren’s academic narrative throughout the article is airily dismissive of young people’s rights, identities, and narratives, and indeed the idea each young person will be seeking a different thing from Wren’s clinic. To understand this, we must explain a little of the context. All young people attending a clinic of this kind within the English NHS will have been subject to a long wait time and therefore will have already had several months of exploration. For some young people, to be expected to wait longer while a clinician grapples with academic concepts of postmodernism is unfair, not least because cisgendered young people are not expected to spend months explaining their settled gender. Wren’s lack of discussion of her role as gatekeeper, mentioned just once at the beginning of the article, but also as a champion and advocate for transgender youth, not mentioned at all, misses important practical implications of her position. Her failure to explain that at least some, and possibly many, trans young people are not attending her clinic for therapy, but for medical assistance, is misleading. Her insistence that the therapist should “help” or “offer” services is disingenuous in a monopoly service such as the Tavistock. It would be more accurate in practice and more honest to describe her actions as “to compel” or “to force” as this is the practical reality which her clients are facing. Even the word she uses – “clients”, rather than “patients” – is revealing: she does not think of her work as a medical professional treating her patients.

2.1 Ethics and Justice

Wren’s overall argument rests – in the end – on a notion of ethical or just behaviour on the part of the clinician. But there is no discussion of what notion or notions of ethics or justice she has in mind. We cannot stress this point enough. It is fatal to the research design. It is compounded by the missing or obfuscated discussions of power (already alluded to, and see further below). An undergraduate student drafting an essay in this way would be asked to rewrite it, bringing front and centre a discussion of ethics and justice, so that the reader can understand what standard/notion/concept of ethical and just behaviour sits behind the analysis and the practical advice that follows.

In the final sections of the article, Wren argues that in their clinical work, practitioners like her “narrate” emergent new “norms” (“the typical adolescent trans person”). In a state-funded service (as explained above, and further below, the significance of this is seriously underplayed throughout: it is barely mentioned), the positioning of such norms has practical implications. As Wren herself notes, clinicians like her are not the only discipline offering/claiming to narrate norms in this space. Without any discussion until the closing sections of the article of questions or notions of justice or ethics, Wren nonetheless argues that clinicians have a duty to practise ethical behaviour that promotes justice. And she claims that behaviour is achieved (this is implicit in the argument, though never made explicit) by following the bullet points set out by Wren, which have to do with recognising contingency of experience. If that happens, then decisions about access to treatment are somehow just/ethical: again without any explanation of how or why that might be so.

What Wren does in effect in this article involves using her privileged position to turn poststructuralism against the “enlightenment” accounts offered by young people – noting that there is a “received wisdom” about those narratives and what they are “supposed to” sound like. If we were to follow through the logic of that position, it would potentially involve inverting virtually all current practice about who gets access to hormones and other treatment. More worryingly, it would involve a return to a 19th century notion of the patient/clinician relationship, which predates all regulatory oversight of clinical decisions, and leaves the power solely with the clinician and their “professional” notions of ethics and justice (i.e. their personal preferences). Whatever difficulties might arise about the turn to patient autonomy in modern medicine, it has helped to address in some small way the (gendered) power imbalances between patient and clinician. Wren’s approach turns the clock back.

As mentioned above, authors of studies from the Netherlands are cited in the article as “… useful in providing support for the practices of the more liberal gender identity clinics”, but ultimately “vulnerable to the postmodern critiques of modernist science”. But there are vulnerabilities in Wren’s position in the same terms. It would have been more intellectually honest for Wren to recognise that her position is equally subject to such vulnerabilities.

While we accept that there is a place for theoretical as well as empirical work, we note that Wren offers no evidence from her own clinic about the effectiveness or otherwise of her approach, or tracking of the outcomes from her patients.

2.2    Practical Impact

Throughout the article, Wren treats “do nothing” as a neutral option. Her failure to explore the outcomes for young people for whom no clinical action is taken is noticeably absent from the article. In the context of Wren’s service, in practice, the medical interventions under discussion are the use of hormone “blockers” to prevent or pause physical changes caused by puberty, and cross-sex hormones to enable puberty in line with a young person’s gender identity.  The relevant NHS England clinical commissioning policy notes the importance of balancing the harms of cross-sex hormones against the potential benefits, and states that a key consideration is the ability of the young person to “weigh in the balance the benefits and drawbacks” (NHS 2016:18). Harm caused by the use of blockers alone can include temporary problems with bone density and impaired growth, and social difficulties arising from a suspended puberty while, physically, peers are moving on: they have “largely been considered free of long-term harm” (NHS 2016: 13).  Benefits include a “reduction in puberty-related anxiety” with all the social and psychological benefits this can bring, and a reduction in the desire for later interventions to undo pubertal changes, such as voice training, electrolysis, facial and tracheal surgery and mastectomy. Harm caused by cross-sex hormones can include sterility and, if a young person decides to change gender again, some effects which are either partially or completely irreversible, such as breast growth with oestrogen use, or a permanently lowered voice caused by testosterone.  The benefits of the use of cross-sex hormones lie in their track record in treating gender dysphoria which puts young people at risk of “self-harm, despair.. relationship difficulties, social isolation and stigma” (NHS 2016:6) and in enabling a person to “pass”, reducing risk of assault and homicide by a stranger. Both treatments run the risk of causing harm if they are used in a young person who later decides to change their mind, although the level of harm caused is open to question where a purely social transition has been supported by the use of blockers.  If withheld, however, harm may also be caused, “exacerbat[ing] distress.. depression, anxiety and suicidality, [and] social withdrawal” (Telfer et al 2018:5). In both cases, possible future harm might also usefully be set against harm in the present, given that young people have only one childhood and (in the UK) one chance at a free education.

Wren appears to argue that the clinician must seek justification for starting a young person on one or both of these medical interventions, but that she need not question a decision to withhold such treatment. There are of course both benefits and drawbacks to medical interventions.  There can be a range of answers to the question “does the good outweigh the bad?” – perhaps a different answer for every young person – but the failure to even ask the question is surely inexcusable in a “good” clinician.

Central to Wrens’ argument – though not explicitly stated – is the notion that a “good”, ethical clinician should be at the heart of decision-making. Wren’s insistence that clinicians must let go of the notion of “always being right” is not sufficient to override the fact that, in her view, all other grounds for “certainty” or “justification” are inadequate, and that therefore everything rests on the clinician’s assessment of the right course of action.

It is all the more important, then, for the reader, that Wren’s code of ethics should be made explicit. And yet it never is, at least not in its entirety. Indeed the central role of the clinician’s own sense of what is right could be said to have disappeared from Wren’s view. Without any explicit discussion of the ethical standpoint on which the analysis rests, it is impossible for a reader (or anyone else, for instance, a regulator or professional association) to assess whether a “good” clinician acts on anything other than their own personal preferences.

What can we discern from the article about Wren’s view of the ethical clinician? Some elements seem at least implicit in the narrative. It seems that central to the role of Wren’s good clinician is the idea that she should go beyond the “narrow” scope of “assessing, diagnosing, classifying, referring for specialist treatment”. The clinician should be doing more than “coming up with an increasingly ‘accurate’ description of gender variant identity and then working out how best to manage it”.

Here we again want to bring to the fore that which Wren has not said rather than what she has. Missing from Wren’s account of the good clinician’s role is any sense of the pain and sadness that most trans youngsters still experience. The reader of Wren’s account would be forgiven for thinking of the clinician’s role being to facilitate fascinating, leisurely, philosophical and theoretical discussions, albeit with teenagers who at times seem remarkably ungrateful for them. There is no sense of urgency and any “psychic turmoil” is apparently shared equally between clinician and client. There is nothing in the article of the reality faced by many trans youth and their families: sadness, shame, isolation, bullying, assault, suicidality, self harm, lost education and missed opportunities. Wren’s good clinician is not encouraged to remember that families are turning to her, a physician, for help in what may well feel to them like an emergency in their child’s life.

Linked to this element of a good clinician’s role is the idea that their work should “[help] to construct the idea and the concept of transgender”. This strand runs through Wren’s argument and she goes so far as to state that clinicians “should be accountable in a process of finding and inventing new ways to think about gender and transgender”. Wren does not go into enough detail to allow the reader easily to evaluate this idea. It could be argued for example that clinicians are only in a position to take a lead in this insofar as they provide a platform for the real stakeholders, in this case trans people themselves. But far from appearing as their advocate, Wren’s account undermines and dismisses the voices of trans youngsters. At worst, Wren describes young people here as demanding and entitled, they are playing a game, they are trying to manipulate. This renders her call for good clinicians to “configure transgender in our time” deeply problematic, certainly in terms of accounts of ethics and justice that call for the powerful to listen to the less powerful. But of course, without knowing what conception of ethics and justice underlie Wren’s account, it is impossible for the reader to assess.

Wren praises the ways in which postmodernist thinking has helped de-pathologise “non-normative” practices such as being trans, and addressed “important social and ethical issues” such as what constitutes normal and “deviant” behaviour.  However for Wren the thinking stops there. There is nothing here to suggest that a clinician should apply the theory and get to grips with what it means for young people who are trans. For example, she might from this point have asked, if being trans cannot be seen as a mental illness or a type of deviance, what does this mean for my role as a clinician?  If we now see being trans as part of the spectrum of normal human behaviour in adults, what does that mean for the ways in which a good clinician should respond to a child who says they are trans? If trans adults are telling us that they knew they were trans as youngsters, is a period of dysphoric misery a necessary part of the diagnostic procedure, or could a good clinician actually do better than this?

For Wren, though, at least by implication, a good clinician neither asks nor answers such questions. The practical impacts are plain: continued “do nothing” often means continued sadness, increased risk and untreated dysphoria.

3.1    Power

The concept of power is central to mainstream postmodernism and poststructuralism. It is surprising therefore, that it is either utterly absent or obfuscated in much of Wren’s analysis. Power is recognised in her account of the binaries that characterise modernist/enlightenment thought. But it is missing entirely from the article’s abstract; and it is missing from the parts towards the end of the article which purport to be the consequence for clinical practice of the analysis that has gone before. Here we make four points about how power is hidden in the analysis.

First, and most strikingly, on reflecting on the absence of power from the analysis, we noticed that an especially troubling aspect of this article is the language Wren uses when writing about her young clients and their families, and her attitude towards them that it suggests. The way Wren describes young people could be construed as an attempt to silence them by undermining the worth of what they have to say. When she writes in this vein, there appears to be no consciousness on Wren’s part of the imbalance between the clinician’s power and the de facto powerlessness of young trans people and their families who use the NHS.

By setting the therapy she provides in opposition to the determination of young people – who she describes as “otherwise rational and reflective” [our emphasis] – to “define themselves irreversibly with the help of powerful chemicals and … surgery” makes the young people she is tasked with helping sound headstrong and lacking in intellect. It is worth noting that this reference to surgery has no place in this article except as a rhetorical device – since the Tavistock can and will never refer a young person for surgery as this is solely the domain of adult services. Incidentally, even mentioning surgery rhetorically in this context (which Wren does more than once) could be constructed as a power-play: Wren knows that it is not a reality, but the reader, for instance from another country (or discipline), may not.

When she states “I especially recognise the comforts of certainty and coherence when I see young people apparently suffering from…disrupted and unreliable attachments [our emphasis]”, this suggests that a desire for help to secure certainty and coherence of the self is framed by Wren as a lazy, cowardly, infantile search for “comfort”. Yet this certainty is the basis on which, for example, reforms to the Gender Recognition Act are based, and is a cornerstone of trans rights. Attachment disorders are implied here as an explanation for a trans identity, but never stated or justified.

Second, power is noticeably absent in the discussion of epistemologies:

“One kind of grounding is based in the confidence of the young people that their own subjective experience is the best guide to making irrevocable decisions about treatment. Three kinds of grounding have a basis in empirical research work, versions of which have found their way into the public discourse about transgender and may be drawn on by young people and their parents who are often avid consumers of internet-based sources of information.”

The power dynamic between the cis/settled identity “norm” of the clinician (who is also a gatekeeper to treatment) and the “other” of the patient/client has disappeared entirely from the author’s account. Which means that, when Wren goes on to write about the conviction her clients express/experience, as a particular “kind of knowing”, the power aspects of claiming that this “kind of knowing” is deviant/“other” in some way are also absent from the analysis. For Wren, when her young clients “report a prolonged and intense experience of the wrongness of the body, this can hardly be understood as a kind of evidential knowing”.  [our emphasis: but the way Wren writes suggests here that it seems unlikely]. By referring to the “subjective experience” of the young people themselves, Wren’s postmodernist awareness that everything is subjective disappears, as the way she writes suggests that she means this in a pejorative sense.

Moreover, Wren’s description of the knowledge brought to her clinic by her clients and their families suggests she is dismissive of their efforts. She states, as quoted above, that empirical research studies “may be drawn on by trans young people and their families who are often avid consumers of internet-based sources of information” [our emphasis]. Families and young people who try to gain some agency by doing their own research may not agree with Wren’s position, but it does not make their informed debate less relevant, or the “way of knowing” they bring any less or more subjective than the “way of knowing” of Wren’s “good clinician”. But there is no recognition of this in Wren’s account. Implicitly, the clinician’s knowledge is “real”: again a hidden power-play.

Third, Wren often appears to contradict herself within the article when failing to talk about how power influences client/clinician relationships. For instance,  

“In my experience, most trans young people are not interested in the possibility of a complex, more or less speculative, developmental account of their gender identity – unless this unequivocally underpins the legitimacy of their wish for, and entitlement to, help to physically transition. Many will acknowledge the impact of early experiences or particular relational patterns (traumatic or otherwise) on their sense of self – but not on their gendered identity,”

This implies intellectual dishonesty on the part of the young people. But it also sits uneasily with Wren’s insistence elsewhere that complex developmental accounts should not be assumed to be relevant or necessary. She claims that a simplistic model of this kind should not be applied – but when young people don’t want to apply such a model, they should be viewed as suspect and probably trying to avoid the truth.

Fourth, while we do not wish to make too much of this point, the opacity of the language used throughout the article could also be considered a kind of power-play. Especially if it is brought into the clinic, to communicate in a way that is not readily understandable to others can be an exercise of dominance.

In her failure to discuss or acknowledge a power imbalance between clinician and client, and the silencing of trans voices throughout the article – despite her unrivalled access to those narratives – Wren’s argument is fundamentally lacking.

3.2    Practical Impact

Wren makes no reference to the lengthy waiting times experienced by all young people who seek clinical assistance for their gender dysphoria. This may seem overly simplistic, but to treat the narratives of young people who have waited several months for an appointment with this kind of disrespect fails to acknowledge the process that a young person will have been facilitating on their own or with their family for some time before they meet the clinician.

Wren’s tone-deaf narrative, that as a clinician she favours a “playful, creative”, and indeed philosophical and academic approach, contains no sense of urgency for young people in dysphoric misery, who are at a high risk for a range of unfavourable outcomes.

Wren is aware that, as Harris (2004, 2005) has it, gender identity is an important “frame” helping us in the business of “doing various psychic and relational tasks”. She also comes back repeatedly to her clients’ need for “a settled sense of self” and the necessity of “various kinds and degrees of stability” which are “required to sustain a liveable life”. She fails, however, to examine two key ways in which the power imbalance inherent in the relationship between GIDS clinicians and their clients renders these assurances almost meaningless when they are taken in the context of the whole article.

Wren repeatedly stresses the desirability of ensuring the clinician “always… resist[s] speaking one-dimensionally”. She states that medical interventions can be criticised as closing the door on the “rich and creative possibilities of self-invention in a gendered life”. For Wren, clients “must” accept that there are “multiple plausible accounts of what is happening” for them.  In fact, she asserts, “treatment is likely to aim towards helping clients … to bear uncertainty and … develop the capacity for critical reflection”, and should “promote the idea of tolerating and living with conflict and contradiction.” The difficulty here is that, as Wren herself notes, “… young people may prefer to assert their gender identity as a ‘given’, not something to be unpacked and potentially reassembled”. Wren’s failure is not fully to address what this means in terms of power.  The young person must submit to having their gender identity unpacked, examined and, if possible, never fully “reassembled” but left in a state of contradiction and uncertainty. The clinician – especially the cis clinician – will never be expected to do the same. If the clinician (or anyone else with a cis identity) wants to explore the “rich and creative possibilities” of living outside accepted gender norms, that will be entirely a matter of their own choice. There is a fundamental imbalance of power between those whose cis identities allow them to inhabit the world as it currently is with ease, and those with trans identities whose experiences of the world are conditioned by the cis norm.

Wren also fails entirely to examine the power inherent in the clinician’s position in a monopoly service such as the one she heads.  In practice, this is a situation where almost all of the power lies with one party in a clinical relationship. In a state-funded NHS, where to ask for a second opinion is not allowed, and to access private medical care means you are ejected from the NHS service, the clinician has almost all the power, and a young person who is trans or gender-non-conforming has almost none.

For Wren, the clinician will “help,” “offer” or “promote” certain ways of living with a trans identity but in practice, in a monopoly service, clients are compelled to live in these ways only. The clinician who will “challenge the attraction of fixed categories and meanings to help clients to try and evolve new meaning” or “offer a reflexive and thoughtful space to help clients explore the architecture and borders of their gendered world view” will in fact be insisting that clients go on a journey that they (the clinicians) themselves never have to face. The client is of course free to refuse, but not if they want access to the medical care that is the accepted treatment for gender dysphoria.

Conclusion

Influential authors, such as Wren, are rightly respected both in their academic fields and in practice. That respect is at the heart of our desire to provide commentary on Wren’s article. Wren’s position and arguments may be taken as accurate, and left unquestioned. But as we noted in our introduction, we were disappointed to find inconsistencies, errors and a fundamentally flawed research design in a publication in this peer-reviewed academic journal. These deficiencies were obvious to us, even as non-experts in the field of gender studies, once we had overcome the initial difficulty of understanding the argument that Wren advances.

In the UK, in the context of NHS care (rather than the private sector where considerable expense deters all bar a small minority), the outcomes for trans young people are the responsibility of clinicians like Wren and those who work for her.  As Head of Psychology of the UK’s only Gender Identity Development Service, Wren’s power as de facto gatekeeper of treatment is considerable. If the treatment available on the NHS for trans young people in the UK is based on a professionally determined ethic of continued “playful” provisionality, that should be defended on its own terms, rather than implicitly justified by a postmodern approach to gender as a constructed category. In practice, therefore, there is more urgency than this article suggests to ensure that the thinking and academic writing which will form a basis for future policy and clinical decision-making is clear, epistemologically sound, ethically rigorous, attentive to power balances and imbalances, and containing at least an acknowledgement of the real-world impacts they should effect.

References

Gergen K (1992) Towards a postmodern psychology. In: Kvale S (ed.) Psychology and Postmodernism. London: Sage, pp. 17–30.

Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7

Harris A (2004) Gender in Linear and non-linear History. Journal of the American Psychoanalytic Association 53(4): 1079–1095.

Harris A (2005) Gender as Soft Assembly. Hillsdale, NJ: Analytic Press

NHS (2016) Clinical Commissioning Policy: prescribing cross-sex hormones as part of the gender identity service for children and young people, at https://www.england.nhs.uk/commissioning/wp-content/uploads/sites/12/2016/08/clinical-com-pol-16046p.pdf

Telfer, M M, Tollit, M A, Pace, C C, & Pang, K C (2018) Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children and Adolescents Version 1.1. Melbourne: The Royal Children’s Hospital; 2018 https://www.rch.org.au/uploadedFiles/Main/Content/adolescent-medicine/australian-standards-of-care-and-treatment-guidelines-for-trans-and-gender-diverse-children-and-adolescents.pdf

Wren, B (2014) Thinking postmodern and practising in the enlightenment: Managing uncertainty in the treatment of children and adolescents. Feminism and Psychology 24(2): 271-291

 

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Brexit must do no harm to health: including by securing adequate medical professional qualifications rules

A Leave.EU Tweet on 3 August 2018 claims that “EU regulations currently prevent doctors from qualifying before five years of training. Just one of countless examples of EU “market building” that do nothing of the sort, instead causing disruption and impairing UK policymakers.” It’s citing Health Minister Steve Barclay, and a ‘Westmonster’ blog.

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This is yet another example of pro-Brexit propaganda that sounds beguilingly simple and obvious but turns out to be nothing of the sort.

It is so for four main reasons:

First: It is wrong about the causal relationships between EU law and current UK practice. It forgets that the UK has been a powerful and influential member state of the EU for decades. As such, the UK has had important influences on the way EU law is in this area – as in many other areas. Current UK law on medical qualifications does indeed comply with EU law. But effects of EU law on routes to medical qualification are limited, and mainly indirect. The vast majority of the detailed contents of medical curricula are determined nationally. The length of time it takes to qualify for a particular medical profession differs in different EU member states.

It’s true that doctors qualifying in the EU need to undergo a certain agreed amount of training: the UK agreed those rules as an EU member state. If the UK wanted to make changes to the rules on medical qualifications as a member of the EU it could.  Indeed, the UK already did, particularly in the reforms that led to the new EU laws adopted in 2005.

So there’s no new opportunity here, at least not in the sense implied in the minister’s statements.

Second: This kind of statement vastly over-simplifies rules about qualifications of different types of medical professionals. EU rules about doctors are on one model, where there is a set amount of time and a broad brush agreement on the content of what they need to learn in order to qualify. This isn’t the case for other medical professionals.  For them, there is significantly more control by the home state, subject to the obligation to recognise equivalent qualifications from other EU countries (and the corresponding duty of other EU countries to recognise UK qualifications). The UK – along with every EU member state – is permitted to check linguistic competency of medical professionals working in the UK.

Third: The statement assumes that quicker is better and cheaper. There is a good reason that it takes time to qualify as a medical professional: medical professionals affect people’s health, dignity and lives. Less well qualified medical professionals might not necessarily be cheaper for the NHS longer term. I hardly need to elaborate further here, surely?

Fourth: The idea that we could gain a ‘Brexit benefit’ from shortening qualification periods for medical professionals is wrong about who our doctors and other health professionals are, and about how medical practice, and bio-science more generally, works in today’s world. Bio-medical science is an international career. The UK does well, at the moment, in attracting professionals from other EU states to the UK. If we depart from alignment with EU qualifications, then we lose an important group of collaborators, and people who could work in the UK as medical professionals.

It is inconceivable that the UK could be ‘self sufficient’ in medical professionals – the numbers just do not add up – as the Nuffield Trust has convincingly shown in its detailed research.

Even if UK were to invest an unprecedented amount in educating medical professionals – and bear in mind that there is no commitment whatsoever from this, or any other, government to attempt to do so – it still wouldn’t give us access to the international collaborations that we currently participate in through the EU.

In short, this kind of misinformation that seems too good to be true is just that: too good to be true.

Parliament (both Commons and Lords) is concerned about any worsening of health post-Brexit and will seek to hold the government to account. The current government itself agreed in the debates on the EU (Withdrawal) Bill that Brexit should ‘do no harm’ to health. These kinds of statements about supposed ‘Brexit benefits’ need to be carefully scrutinized against that standard.

Legal and policy aspects of Brexit for health: update

I was invited to speak at the University of Oxford, Faculty of Law’s Brexit Symposium on Friday 23 February 2018. Here’s the text of my talk.

This research is supported by ESRC Brexit Priority Grant ES/R002053/1. Some of the text below will be published by UK in a Changing Europe soon, to support its Brexit and the NHS event. Thanks, as ever, to Sarah McCloskey, for outstanding research assistance.

Why focus on legal and policy aspects of Brexit for health?

Health matters: to the UK population; to the populations of other EU countries; to protect human dignity and as a basic provision of solidarity; some even say as a human right. Health matters to the EU referendum debate and its consequences.

Brexit bus

Health is also the perfect microcosm for studying the legal and policy dimensions of Brexit. That’s because, when you consider general legal questions in a specific policy context, they take on a considerably sharper focus. Narrowing the scope of inquiry down to health gives us more specific clarity on what Brexit means, and what legal arrangements will be disrupted.

Health law goes across all the traditional aspects of EU law – thus:-

Screenshot 2018-02-26 09.28.54

Legal and policy aspects of Brexit for health also go across all areas of EU law, and of equivalent categories of domestic law.

In this brief talk, I focus on three things: what we know; what we don’t know; and what might happen. All focused on health, but of course also generalisable to other social and economic sectors, or aspects of post-Brexit realities.

In all of this, it matters what kind of Brexit we have. Will there be a Withdrawal Agreement at all? Mixed political messages mean it is difficult to read into legal outcomes. Here are some possibilities. And each of these have different implications for what will be legally possible in the future.

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In the unlikely event anyone is thinking, ‘of course there will be a Withdrawal Agreement’ or ‘the UK will be able to negotiate a ‘deep and special relationship with the EU in the future’, remember ‘nothing is agreed until everything is agreed’ for the Withdrawal Agreement. Don’t forget the island of Ireland, which is far from resolved. Further, there is a significant gap between the position of the UK government (e.g. Davies’ speeches last week) and the EU position (outlined in these slides which were published by the European Commission on 21 February 2018).

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In all of this, it also matters what the future relationship(s) EU-UK will be. Here is Barnier’s ‘steps of doom’ slide (thanks, Steve Peers, for the description), from 15 December 2017.

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The slide shows 7 possible EU-UK relationships. These are real models, in the sense that they are existing trade agreements between the EU and various other states or groups of states. Achievement of the UK government’s desire to enter into a ‘deep and special relationship’ with the EU is of necessity bounded by what is legally and practically possible, both for the EU and for the UK. Existing models, rather than vague, unicorn-like, ‘cake and eat it’ aspirations, strike me as a sensible place to begin.

So, as Steve Peers, and others, including me, put it – the desired ‘deep and special relationship’ is hard to believe in. It has a mythical, unicorn-like quality.

Anyway – to health – First, let’s consider –

What do we know?

In terms of what we know – in the short to medium term, people are the biggest challenge. NHS and social care staffing relies on EU/EEA nationals.

Free movement of people within the EU has had a significant impact on patterns of staffing within the NHS. Approximately  200,000 EU27 nationals work in the wider health and care sectors – about 5% of the total workforce. EU27 staff are pivotal to the operation of the NHS, especially in London, the South East of England and Northern Ireland.

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The UK has never trained enough doctors for its own needs – some 28,000 doctors are non-UK nationals, around a quarter of the total. NHS England alone depends on some 11,000 doctors from the EU27, who make up 10% of all doctors. Add in the further 20,000 NHS England nurses and 90,000 social care staff from the EU27 and the sheer scale of reliance on EU migrant workers becomes clear. In anticipation of a “Brexit effect”, the NHS has already invited bids for a £100 million contract to recruit overseas doctors into general practice. And this is in a context in which the NHS already has many unfilled posts. Restrictive rules on recruiting non-EU nationals are already causing severe problems for the NHS; extending these to EU nationals will aggravate the problem.

The uncertainty posed by the Brexit negotiations to date has already affected staffing levels: the Royal College of Nursing reported a 92% drop in registrations of nurses from the EU27 in England in March 2017, and attributed this, at  least in part, to “the failure of the government to provide EU nationals in the UK with any security about their future”.

And we know that leaving the EU will be bad for research science and technology too. The loss of EU nationals among NHS and social care staff is also being replicated in other parts of the health sector, including research and innovation. One in six university researchers are non-UK European nationals – their position is equally insecure to that of the NHS workforce.

Potential threats to NHS staffing levels go beyond immediate concerns about immigration. Decisions about future regulatory alignment in services will determine whether the qualifications of medical professionals will continue to be mutually recognised between the UK and the EU27. Some see this as an opportunity to reset national standards. However, this is often based on a misunderstanding of the autonomy the NHS already enjoys. Rules related to linguistic capabilities have been in place throughout the UK’s membership of the EU to secure patient safety.

But there is clearly a trade-off between patient safety as served by restrictions on healthcare professions and patient safety as served by having a workforce sufficient to meet the country’s needs.

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EU nationals living in another EU country can access the treatment they need (S1 registration). Around 190,000 British pensioners live in the EU27 and rely on these reciprocal healthcare arrangements. The UK contributes about £500 million annually towards their care and receives £50 million for care provided to EU nationals in the UK. Average treatment costs for UK pensioners in the UK would be about double that of paying for their treatment elsewhere in the EU. If the UK did not conclude a Withdrawal Agreement with the EU, and were all these pensioners to return to the UK, the NHS would need some 900 additional beds to ensure sufficient capacity.

Just over one third of UK citizens in Spain are aged over 65. Retired UK citizens in Spain currently rely on EU law to secure residence, pensions, and, crucially, access to healthcare, with minimum administrative formality and no extra cost to themselves. Under the Spanish legal framework, it is extremely difficult for non-EU/EEA nationals to access the Spanish NHS, unless they are either working or have individually subscribed to an expensive special agreement with the Spanish social security authorities.

Michaela Benson at Goldsmith’s project shows the distress that many of these vulnerable individuals feel, as well as their resourcefulness in tackling the predicament they are in.

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Under the terms of the joint report, those already in another EU member state would still be covered by the EHIC. Until a legal text is agreed, it is not clear what will happen on the island of Ireland. For everyone else, the EHIC may not continue, except perhaps during the transition period.

It is possible that the UK will negotiate access to the EHIC as part of a future EU-UK relationship. Should it fail to do so, UK nationals who want to travel to the EU in the future—some 53 million visits from the UK to the EU27 take place each year—will have three options: they can purchase private travel insurance, travel without insurance and risk significant healthcare bills or simply not travel at all. The Association of British Insurers (ABI) has estimated that, if the EHIC is withdrawn, the cost of treating UK citizens abroad will be about £160m. Some patients, e.g., those with long term conditions or disabilities, will not be able to afford travel insurance.

 

If there’s no Withdrawal Agreement, and even if there is, in the medium term, in addition to people, products are also a big challenge.

Supply chains for pharmaceuticals, medical devices and substances of human origin may be disrupted. For instance, no kidney dialysis tubing is currently made in the UK.  If we have a disorderly Brexit, the UK has about four or five months of stock of most drugs, which is not enough to ensure a continuity of supply in the case of emergencies. Stockpile planning may be necessary for substances with a short expiry date, e.g. complex biologics.

The terms on which we trade with the EU for those products will determine the time new products take to reach the UK market, and the cost to the NHS. For instance, Canada and Australia have mutual recognition agreements with the EMA, but wait 6-12 months on average more than EU or US for new drugs to come to market. EU law on ‘parallel trading’ prevents the dividing up of the internal market in pharmaceuticals using IP rights. Parallel trade saved the NHS €986.2 million between 2004 and 2009 …

The UK relies on EU systems for pharmacovigilance, for information sharing on harmful medical devices, for organ sharing, for data sharing where patients are involved in clinical research … I could go on and on.

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Legal and policy aspects of Brexit for health have UK facing/inward facing implications too. Here is an attempt, led by the Faculty of Public Health, to make sure that post-Brexit, the new UK legal position is one of ‘do no harm’ to health. It seeks to secure accountability of executive action under the EU (Withdrawal) Bill.

Martin McKee & I wrote about it in the Lancet recently.

And of course, health is a devolved power, so the debate about repatriation of powers to Scotland, Northern Ireland, and Wales post-Brexit applies to health.

So that’s some of what we know. But there’s a great deal that we don’t know.

What don’t we know?

What would happen to health in any of the possible future EU-UK relationships/post-Brexit scenarios? How does health – patients, professionals, products, substances of human origin, services, systems – fare under different types of trade agreements? Here it is really difficult to find clear information about the legal implications of different types of agreements, or about patterns of trade that affect health.

One of the few published empirical studies on health effects of FTAs  showed that NAFTA was strongly associated with a marked rise in high fructose corn syrup supply and likely consumption in Canada. Lower tariffs lead to increased imports of energy-dense products like high fructose corn syrup, which lack nutritional benefits: so-called “empty calories.” Lower prices encourage manufacturers to use these products in cheap processed food, with consequences for obesity and the health effects that flow from it. The study provides evidence that even a seemingly modest change to product tariffs in free trade agreements can substantially alter population-wide dietary behaviour and exposure to risk factors.

What’s going to happen?

A ‘bespoke Brexit’ might be the only way politically that the future relationship between the EU and the UK can be achieved or conceptualised. This may well not have any systemic aspects at all – rather than ‘a relationship’ it would be based on a series of relationships in the plural, all governed by ordinary international law. We can legally conceptualise this – these agreements exist between the UK and other countries, and between the EU and other countries.

After all, we can overstate the notion that the EU is a rules-based system – there are plenty of examples of what Deirdre Curtin first named as an EU of ‘bits and pieces’, based on political expediency and practicality. The EU has always held in tension integration and diversity. So maybe we need a new legal conceptual framework to understand this – what Jo Shaw has called an ‘ever looser union’.

In general, perhaps, I think we may want to be thinking in terms of relationships, and how we might broker those. This is certainly the case for an area like health law and policy, which cuts across the ‘standard’ categories of EU law, and which isn’t ‘at the table’ in the Brexit negotiations.

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Here is one example.

Northern Ireland and Ireland provide perhaps the best example of how challenging Brexit is to health, health care and social services.

Effectively there is one healthcare workforce on the island of Ireland. People cross the border every day to provide health care services. They can do this easily because their rights to do so are underpinned by EU law. The Common Travel Area’s legal provisions in effect presume EU membership.

Services designed for both sides of the Irish border meet collective healthcare needs in the area. Sexual health, diabetes and eating disorders are all treated in this way, with integrated services offered to patients in both Northern Ireland and the Republic of Ireland. For instance, the radiotherapy centre at Altnagelvin Hospital in Derry/Londonderry is accessible to patients in County Donegal in the Republic who would otherwise have to travel long distances – to Dublin or Galway – to obtain the same treatment.

EU integration has also enabled economies of scale across the Irish border, such as the sharing of key healthcare services, particularly where specific expertise and facilities are not viable in a small region such as NI. In 2014 the NI and Republic of Ireland health ministers agreed that there would be a joint child heart facility established in Dublin. Between January and September 2017, 23 children travelled from NI to Our Lady’s Children’s Hospital in Dublin. Such cooperation is facilitated by the EU Directive on the mutual recognition of professional qualifications and on EU rules on data protection that enable the sharing of patient details.

So the relevant professional organisations for midwives have entered into a formal partnership agreement, which includes shared training, and is explicitly intended to ‘Brexit-proof’ existing collaboration.

Key messages

Key message: Brexit is bad for health. But, as my colleagues and I found, and published in the Lancet, the risks of Brexit for health systems vary significantly depending on what type of Brexit we have.

The law matters. The ways we have conceptualised EU law – and EU health law – are likely to be changing, as we remove ourselves from the system of EU law, to a looser collection of agreements with the EU on a range of different topics.

All of this will take time.

What I’m reading: on Higher Education, comparative health law, and Brexit

It’s been a while since I wrote about what I’m reading.  I was going to write separate blogs about each category of reading. But then I remembered: this blog is about my blended life.

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S Collini, Speaking of Universities (Verso, 2017).

I’d read some of Stefan Collini’s 2012 book before. His 2017 collection is a development of those ideas. I don’t dislike his style –  journalistic, punchy, pugnacious. It takes a bit of chutzpah to begin an academic piece with the chapter title ‘Handwringing for Beginners’, even when that’s a response to a critical review.

I’m particularly reading this with the purpose of reflecting on two things: equality and diversity in (legal) education; and what counts as ‘teaching excellence’. On the latter in particular, Collini has quite a lot to say, mostly indirectly (though not entirely: I enjoyed the riff on ‘excellence’ meaning both ‘good of its kind’ and ‘better than others’ on pp 42ff). One of his themes is that the very essence of the value of a university is that it cannot be measured in the ways in which contemporary western societies currently seek to capture ‘value’. A consumer-led notion of value, called ‘student satisfaction’, avoids the ‘difficult judgements about some human activities being more valuable than others’ (p 37). Education isn’t like a hotel experience (‘did you find the fluffy towels fluffy enough?’ (p 106)). Just asking consumer-students if teaching is excellent misses the point:

‘User dissatisfaction may sometimes be an important sign that genuine education is happening.’ (p 40)

‘The paradox of real learning is that you don’t get what you ‘want’ – and you certainly can’t buy it. I can bustle about and provide a group of students with the temporary satisfaction of their present wants, but in that case they would be right to come back years later and complain that I had not really made any effort to educate them. The really vital aspects of the experience of studying something … are bafflement and effort.’ (p 107)

‘A university education is what some analysts have called a ‘post-experience good’: a full understanding of the benefits cannot be had in advance.’ (p 139)

‘… good quality undergraduate education cannot be sustained in a void. … for the contagion of minds that is involved in good teaching to work, the teacher needs to be the product of a whole cultural and intellectual tradition, needs to understand the nature and status of the knowledge they are seeking to communicate, needs to be informed by a certain kind of professional ethos … and so on … universities have to be functioning healthily across the range of activities that constitute them if they are to successfully fulfil the task of undergraduate education at all.’ (p 216)

‘… [university] education relativizes and constantly calls into question the information which training simply transmits.’ (p 235)

Much as I want to agree with Collini – and I certainly agree with the observations above – this particular argument does worry me too. I know that sometimes students do have a bad experience; sometimes those who teach them in universities do not measure up to even the bare minimum of what would be expected by any reasonable outsider. Staff who don’t update their reading lists, who are late for class, who fail to do marking in time, who are unpleasant, sexist, racist – I have seen all of these over the 30+ years in which I have been engaged in HE. So I wouldn’t be for throwing out all attempts to set expectations of academic staff. I think there should be accountability when those expectations are not met. After all, even in the current way of funding universities, this is still public money that pays our salaries. But, as Collini puts it, ‘any genuine evidence [of teaching excellence] can only ever be a matter of judgement, not measurement’ (p 165). Academics are good at judgement: at articulating the reasons they reach the value positions they reach. Let us do this, not the ‘metrics’.

What this all means for equality and diversity is much more difficult. The massification of HE – one of Collini’s key themes – means that HE is now accessible to a more diverse body of students. But it also means that many of our students don’t share the cultural (and pedagogical) values that (in Collini’s words) ‘constitute’ a university. How far do we ‘educate’ students who don’t share those values into understanding and embracing them? How far to we meet them half way by seeking to understand the alternative values that drive them?

What it all means for equality and diversity is even more difficult in the other book I’ve been reading recently:

F Furedi, What’s Happened to the University? A Sociological Exploration of its Infantalisation (Routledge 2017)

I admit I am finding this book quite challenging. Its main thesis is that universities – along with the rest of society – have over-medicalised discomfort. Put very briefly, Furedi’s position is that 21st century students are encouraged to think of challenge, discomfort and difficulty as stress-inducing things from which they are entitled to protection, rather than inherent in the nature of higher education. Along with the culture of identity politics, ‘protest about discomfort’ becomes interwoven with ‘narrative about political oppression’ (p 48).

The implications for ‘teaching excellence’ are less directly articulated by Furedi than by Collini, but they are implicit.

‘In the UK, what’s referred to as ‘the student experience’ is deemed to be of fundamental importance … Universities are rated according to the quality of the student experience they provide. Ensuring that undergraduates have a problem-free and pleasant life is the precondition for gaining high ranking in the university league tables.’ (p 46)

Again, some of this resonates. I recall very well the robust interactions I had with our disability support unit about whether a student was entitled to more time to complete the assessment in a module that I used to lead. The assessment questions were given out at the beginning of the year. Students were encouraged to work on them throughout the semester. There was a system of ‘feedforward’ on their work in progress. We then told them, with 48 hours notice, which of the three questions they should hand in, to be marked. This particular student was accustomed to a blanket 25% extra time in examinations. My position was that giving 25% extra time in this assessment was not a ‘reasonable adjustment’ in the terms of the Equality Act.* The student claimed that my position caused her ‘stress and anxiety’.

But the thing is, students do suffer mental ill-health. And the more diverse the student body, the more difficult it is for those of us who comfortably inhabit the world of Higher Education to claim that we should not adjust for those who do not do so. It’s about power too. That’s what equality and diversity agendas require: the acknowledgement of difference, and the adjustment of notions of ‘the norm’ that operate institutionally and structurally to perpetuate (dis)advantage.

Comparative health law

I’m working away with David Orentlicher to get together our line up (of some 50 contributors) to the OUP Research Handbook on Comparative Health Law. Thinking about the research design (pairs of ‘American’ and ‘European’ authors, each agree what the ‘issues’ are in their particular topic of health law, write a piece together that articulates those issues (eg as a ‘problem question/scenario), then each explain and analyse how their jurisdiction(s) respond), and about whether one can ever really do comparative law has me returning to a theme of my academic life. So I’ve re-read some old favourites; and got up to speed with some new literature on comparative law generally. The 132pp Legrand piece in the 2017 American Journal of Comparative Law defeated all but a light scan, but I had a lovely email correspondence with Peer Zumbansen about his, and the other responses in the special issue. In particular, the responses got me thinking about how comparative legal method must involve a deep respect for the other, as well as a habit of critical reflection to try to see beyond those invisible intellectual habits that define what we think ‘count(s)’ as our particular (sub) discipline(s).

In terms of comparative health law, I’ve particularly enjoyed reading a trio of John Harrington’s publications, which draw out questions of the temporal, and, implicitly, spatial/jurisdictional, in medical/health law. When we take into account time (and, implicitly, space or place) as a dimension of medical/health law ‘we are thus required to take seriously its rhetorical form, meaning that legal reasoning establishes only provisional or contingent truths’ (2012: 495) This immediately sets us apart from ‘foundationalist’ (or others might call ‘positivist’) approaches to law and legal reasoning, according to which ‘the right’ legal answers can be deduced logically from relevant legal texts. Harrington draws on Mariana Valverde’s Chronotopes of Law (2015). His argument is that medical law ‘is marked out by a distinctive ensemble of chronotopes’ (2015, 362). Hence ‘the work of the critical scholar will involve investigating the cultural and social contexts in which these figures and forms gain plausibility’ (2015, 362).  And so ‘historicization remains an important task [for sociolegal scholars] given the tendency to abstraction and a-contextuality in liberal law more generally and in medical law, under the influence of bioethics, specifically’ (2015, 362-3).

Reading this is making me think (a) comparative health law is never feasible; and (b) the design of our comparative health law handbook will get us closer to feasibility than other designs would.

K Armstrong Brexit Time (CUP 2017)

I was lucky to read much of this in advance of publication. But it’s great to see it together in a physical book (I’m still a sucker for physical books). Armstrong’s theme of time has infused pretty much all of his scholarship, but it works particularly well for this account.

Michael Dougan’s Brexit edited collection is on order.

Most of my “Brexit and health” reading comes from links in Twitter though.

And there’s the ongoing interest in EU Health Law more generally: Andre den Exter has just generously sent me a copy of his edited collection on the subject. EU health law and policy without the UK will be, I imagine, quite a bit different to the way it is with the UK. That’s something the (just-landed) Jean Monnet Network, led by Katherine Fierlbeck, will be investigating over the next three years.

To summarise: the themes of my current reading

  • comfort/discomfort
  • time

Blending different types of reading brings out resonances and dissonances which I don’t think I’d get to enjoy if I stuck to just one project at a time, or compartmentalised the things I’m interested in.

*More on this to come: I’m collaborating with several others on a journal article on the topic.

What does the EU (Withdrawal) Bill mean for health law?

Picture1

Here (and here in longer form) is my take* on what the EU (Withdrawal) Bill means for health law and policy. The analysis is necessarily speculative: the Bill is just published, and hasn’t yet been through Commons or Lords. With the government’s narrow majority, it’s even more so.

The Withdrawal Bill repeals the European Communities Act 1972 and creates a new formal source of UK law: ‘retained EU law’ (an umbrella term in the Bill).

‘Retained EU law’ includes ‘domesticated EU law’ and EU-derived domestic law.

Domesticated EU law is EU law which is currently ‘directly applicable’ in UK law (applies without further ado once adopted at EU level). Health law examples include: Advanced Therapy Medicinal Products Regulation 1394/2007; the Data Protection Regulation 2016/679. One to look out for: the new EU Clinical Trials Regulation is yet to enter into effect. It would have to be operative immediately before Brexit day to be covered by the Bill’s terms. It will not be because the relevant database will not be operative in time.

EU-derived domestic law is UK law derived from EU law that is already incorporated into UK law. A health law example is UK compliance with Human Tissue and Cells Directive through the Human Tissue Act 2004, the Human Tissue (Scotland) Act 2004, and the Human Fertilisation and Embryology Act 1990.

Retained EU law will be amended.

It will be amended through primary legislation: e.g. an Immigration Bill. This has been misleadingly portrayed as ensuring continuity for EU citizens in UK unless changes are approved by Parliament. In reality, everything will change and this has serious implications for health and social care staffing and recruitment to health research posts in UK. It also has implications for UK nationals in the EU-27. When the Immigration Bill emerges, health law and policy community should therefore pay careful attention.

It will also be amended through delegated legislation. The Withdrawal Bill confers a great deal of power on ministers to address ‘deficiencies’ in retained EU law.

A ‘deficiency’ is defined by implication by reference to the view of the relevant minister. It is not defined any more than this, but the Government’s Explanatory Notes preclude its interpretation as merely any EU law ‘a minister considers… was flawed prior to exit.’

If the executive power to address ‘deficiencies’ is as sweeping as it appears, every aspect of health law pertaining to the UK’s withdrawal agreement could be altered by executive powers. For example, a change to the rights of R-EU nationals to healthcare access in UK negotiated by the withdrawal agreement/due to no-deal Brexit could be implemented via delegated legislation. Functions of EU entities (like the European Medicines Agency) that must, following Brexit, be carried out by existing UK public authorities or newly-established bodies could be defined by ministers alone. Where EU law currently requires and facilitates information-sharing with EU institutions, such as sharing data on cancer outcomes or sharing information about adverse effects of pharmaceuticals, executive decisions could decide what UK law will require. What’s more – even though health is a devolved power – the Bill essentially gives power to Westminster/Whitehall, and effectively undermines the role of the devolved nations/regions completely.

All of this is particularly worrying if there is a ‘no deal’ Brexit. The Withdrawal Bill (if adopted as it stands) gives executive power to remove regulatory oversight. If there’s no deal, there will be no external source of regulatory standards as there is now. If the UK government pursues a low regulation economy, as it has at times threatened, there will be serious ramifications for health law.

The overall lack of parliamentary scrutiny of changes to health law is particularly problematic: Even where health law is notionally ‘technical’, the ‘technical’ choices made have significant normative implications, including for individuals’ lives, their dignity, and perhaps even their identities. Thus democratic processes are necessary to its fair implementation.

What should we be doing?

Anyone who is worried about these proposed changes to UK health law – health lawyers and health policy stakeholders – should be persuading Parliament to provide effective scrutiny of the Withdrawal Bill. We should also watch what is proposed in the UK withdrawal agreement, primary legislation, and delegated legislation, and be clear about what it means for health.

There may be some small opportunities in this landscape of chaos. We’d be healthier overall in the EU: that much is clear. Much of what we need to do now is to secure as healthy a Brexit as we can – it’s damage limitation. But we could make some small changes to UK health law for the better. For instance, some want to change working time rules for the NHS. We could review our position that NHS plasma for those under 21 comes from Austria. We could bring together rules on marketing pharmaceuticals with those on more complex medical devices.

There are huge dangers. We stand to lose a human-rights inspired approach to health regulation, which has implications for public health issues such as tobacco or alcohol regulation. A low taxation and regulation agenda would be not far short of a disaster for health and the NHS.

What we do have on our side is the political capital of the referendum to use to get a seat at the table when the implications of Brexit for health are discussed.

Brexit bus

*with huge thanks to Sarah McCloskey, Brexit Intern, and Sheffield Law School for funding the internship