Unreasonableness and Regret

An interesting headline popped up in my twitter feed this morning.  The Australian had run an article which noted the possibility of litigation against doctors in cases of gender reassignment regret.

The article states that –

In Australia, troubled clinicians have urged the federal government to set up an urgent inquiry into the safety and ethics of “experimental” hormone drug treatment of girls as young as nine and boys from 11.

They say trans activism has trumped ethics and obscured the weak evidence for this radical treatment, with the dominant ­“affirmation model” pushing children down a medical path that can leave them infertile and incapable of orgasm, among other side-­effects. …

The US is seeing early signs of what ­clinicians believe will be a wave of regretful “detransitioners” across the English-speaking world.

This left me wondering what the legal options would be for a litigant.  The only caselaw on the subject of which I’m aware is Finch v Southern Health [2004] VCC 44; affirmed as Walters v Finch [2005] VSCA 203.  That case, however, dealt only with the time limit for bringing the proceeding.  I can find no decision in it post 2004; presumably the matter resolved.  In any event, since Finch’s Case the Wrongs Act 1958 has been amended to include §59, which relevantly says –

(1) A professional is not negligent … if it is established that the professional acted in a manner that (at the time …) was widely [but not necessarily universally] accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

It occurs to me that subsection (2) may make for some interesting litigation if the ‘wave of regretful “detransitioners”‘ becomes a reality.  It is hard to be unaware of the fraught nature of public discussion surrounding transgender issues.  The danger of being caught in a social media wildfire is unacceptably high for many serious and reasonable research institutions.  If this public pressure were to result in a substantial skewing of research, a court may well be asked to determine that the relevant professional opinion is unreasonable.

Jamu v City of Harare (2009) H&FLR 2014-19

Annamore Jamu v City of Harare (2009) H&FLR 2014-19

Supreme Court of Zimbabwe

26 January 2009

Coram: Sandura, Ziyambi and Garwe JJA

Appearing for the Appellant: E. Matinenga (instructed by TH Chitapi & Associates)

Appearing for the Respondent: D Kanokanga (instructed by Kanokanga & Partners)

Catchwords: Zimbabwe – administrative law – medical practitioners – town planning – residential clinic – disease – litter – traffic – desirability – necessity

Facts: The appellant was a medical practioner operating a private surgery at Borrowdale West in Zimbabwe.  She applied to the respondent for a permit to convert the surgery into a fifteen bed residential clinic.  Objections were raised by her neighbours on the grounds that the proposed clinic would expose them to bacteria and infection and also on grounds of litter and increased human and vehicular traffic.  The respondent refused the application.

Dr Jamu’s appeal to the Administrative Court was dismissed.  She appealed to the Supreme Court of Zimbabwe.

Held: Dismissing the appeal, that in considering whether to grant a permit, the decision maker was required to consider the desirability of a development.  If it is found to be undesirable, it was proper to consider whether it is nonetheless necessary.  A “need” for a development would be made out if the public would suffer serious disadvantage if the development were not allowed.  In the present case it was not necessary in that sense because there was another clinic in the vicinty and the concerns raised by the objectors carried additional problems.

Amalgamated Sales (Pvt) Ltd v City of Salisbury*, followed.

Tobacco Warehouse  & Export Co (1946) Ltd v City Council of Salisbury (1966)* and City of Salisbury v Sagit Trust Ltd, 1981 ZLR 479(S), considered

Judgment

The Court’s judgment is available here.

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*Citation not available.