Medicine and the rights of intersex people

By Dr Oliver Tolmein (lawyer, Hamburg)

Being intersex is not an illness. Nonetheless, inter* people often need to work closely with doctors for many years. This is sometimes as a result of the after-effects of operations or due to check-ups or follow-up appointments.

The S2k Guideline on intersex has been available to medical professionals since 2016. The guideline defines these “variations of sex characteristics”. Many doctors, parent groups and intersex people themselves have worked on this guidance. Treatment guidelines are important for medical professionals, however, they are non-binding. No one is required to abide by them. However, any deviations from the standards specified in the guidance must be well justified by the medical staff in the event of liability.

Basic rules apply to any form of medical treatment and the way they are documented:

  1. Medical treatment can only be undertaken with the consent of the patient.[1] Consent only becomes effective if the patient has been provided with detailed information about the material facts of the treatment.[2]
  2. When patients are unable to give their own consent, for example, in the case of a young child, the procedure is inadmissible. This applies especially to irreversible gender reassignment procedures. This is touched upon in “Recommendation 31” of the treatment guidelines: “The indications for surgical treatments for children who are unable to give consent shall always be classed as restrictive. Guardians of the child can only provide consent for these procedures carried out on a child who cannot give consent which are medically indicated and prevent the child from suffering any subsequent harm.”[3]
  3. Moreover, patients for whom consent has been granted by a representative, must be provided with information about the treatment[4]. This is particularly important for children who are not yet able to give consent, but who are able to communicate verbally. This is important not least because it makes it clear that the people concerned have the right to know why they are receiving treatment and what exactly is going to happen to them.
  4. There is no fixed age from which children are capable of giving consent or a point up to which they are not capable of giving consent. There may certainly be children who are capable of giving consent to certain procedures. Their consent is therefore also a prerequisite for the legitimacy of the treatment.
  5. Patients are entitled to inspect their own medical records. However, doctors and hospitals are only required to retain the records for 10 years.[5]
  6. Consent can become ineffective, if the doctors are carrying out treatments without providing appropriate information about all the aspects of the treatment or if they have made inaccurate statements. Carrying out a treatment without consent is at the very least a form of physical assault. Physical assault is generally regarded as a criminal offence[6] which usually results in claims for damages.[7]

Other important factors play an important role in the doctor-patient relationship. The physician’s duty of confidentiality is especially important. Patient confidentiality is in place to protect a patient’s personal privacy. Sometimes difficult situations can arise, for example, when young people under the age of 18 do not want doctor-patient conversations to be shared with parents. The legal situation varies on a case-by-case basis. Generally speaking, patient confidentiality needs to be maintained in these cases too. Exceptions in this respect exist if the doctor is trying to serve a higher legal purpose by breaking confidentiality, for example, if it is believed that the patient is at risk of attempting suicide. However, confidentially must always be maintained with respect to third parties, but never with respect to patients. Patients always have the right to know why they are receiving a particular treatment and how it is envisaged that the treatment and condition will progress.[8]

[1] § 630 d BGB.

[2] § 630e BGB.

[3] Cf. the text by Oliver Tolmein “Chirurgische Eingriffe am Genital nicht einwilligungsfähiger intersexueller Kinder und der Schutz der geschlechtlichen Identität” in MedStra, Zeitschrift für Medizinstrafrecht (Journal for Medical Criminal Law), no. 3/2019.

[4] § 630e para. 5 BGB.

[5] § 630f para. 3 BGB, § 630g para. 1 BGB.

[6] § 223 StGB.

[7] Two actions have been brought before a court. Both claimants won their cases.

[8] § 630c para. 2 BGB.