Liability · Defenses · 2026-05-24

Defenses and what to do today

What will a treating physician or clinic argue in a disciplinary complaint or civil case? The defenses are predictable — and not always strong.

"We followed the Dutch guideline"

A guideline is not a safe harbor. The Hoge Raad has repeatedly held that guidelines are aids, not prohibitions. When substantially different views exist internationally and the guideline has not moved with that development, an independent duty arises for the individual practitioner.¹ Moreover, a physician relying exclusively on a guideline that is questioned both abroad (Finland, Sweden, Denmark, NHS England) and by Dutch researchers themselves (Vrouenraets et al. 2024) will be told that a reasonably competent colleague would not ignore that signal.

"The patient and parents signed"

Consent is valid only when based on full and honest information (art. 7:448 and 7:450 BW). A signature on a form is not proof of valid consent if the underlying information fell short. The burden of proof for adequate disclosure lies with the physician — not with the patient. See informed consent as the strongest route.

"WPATH SOC-8 is the international standard"

The WPATH guideline came under fire in 2024 through the so-called WPATH Files: internal documents showing that systematic reviews with unfavorable findings were suppressed, that age limits were stripped from the draft under U.S. political pressure shortly before publication, and that political considerations weighed in the guideline-development process.² The status of SOC-8 as an independent scientific standard has been damaged. Reliance on WPATH does not exempt a Dutch physician from independent critical review.

"Not treating is also harmful — suicide risk"

This argument is deployed often and is emotionally powerful: without treatment the patient would become suicidal. The Cass Review and earlier analyses (Biggs)³ show that the claims about suicide risk are oversimplifications. Methodologically sound research shows no significant effect of puberty blockers or hormones on suicidality. The argument fails both factually and legally: it cannot displace a duty of disclosure or duty of care.

"The state of science justified it at the time"

Here time becomes decisive. The ex tunc criterion (judgment by what was known at the time) is a valid legal principle. But the relevant question becomes: from when on should the physician have known better? For treatments in 2018 the answer differs from treatments in 2024. From the publication of the NICE evidence reviews in 2020 the appeal to ignorance has weakened. From the Cass Review (April 2024) and the Amsterdam self-article by Vrouenraets et al. (December 2024) it is barely sustainable.

What a physician must do today

This dossier is not an indictment of physicians who in good faith, within prior understanding, delivered this care. It is a warning about what is done from today onward. For the physician who in 2026 has patient contact about these treatments, the following applies:

• Actively engage with the Cass Review, the Swedish SBU review, the Finnish COHERE guideline and the article by Vrouenraets et al. (2024). Ignorance is no longer a defense.
• Document in the record exactly what information was provided on uncertainty of effectiveness, irreversibility, fertility loss and alternatives. A signature without an underlying conversation record offers no protection.
• Ensure that comorbidity (autism, depression, trauma, eating disorders) has been explored and, where indicated, treated before hormonal intervention is considered. This is not a checkbox but an independent duty of care.
• Discuss desistance and the fact that 95–98% of adolescents on puberty blockers proceed to cross-sex hormones. The pause-button metaphor is factually inaccurate.
• Be restrained with minors. Competence for lifelong, far-reaching decisions is contested.
• Do not rely exclusively on the Dutch guideline or WPATH SOC-8. Both are contested. Individual professional judgment governs.
• Bear in mind that records are requested long after treatment. The civil limitation period is five years from discovery of damage, with an absolute cap of twenty years — and for minors, suspended during minority. A 13-year-old patient from 2026 can file a claim up to 2046.

Conclusion

Rarely has an entire branch of medical treatment come under such fundamental international fire within five years. Rarer still is that the clinicians themselves, in their own scientific publications, want to set aside the traditional medico-scientific framework for that treatment.

That is not background noise. That is a shifted legal reality. The Wgbo does not change, disciplinary law does not change, Book 6 of the Civil Code does not change. But what counts as the good-clinician standard, what counts as full disclosure, and what a reasonably competent colleague is taken to know — that shifts. Quickly.

Hippocrates already wrote it: primum non nocere — above all, do no harm. It is an obligation that does not require statistical certainty to engage. Doubt suffices. And the doubt is there, voiced not by outside critics but by the clinicians themselves. Those who proceed today as though nothing is the matter will operate not only in the consulting room. But also in the courtroom.