The healthcare shield measures conduct against professional practice, not informed consent  

Cl. 1(3) exempts conduct in the course of health care unless it falls “far below” the standard “reasonably expected” of a provider. That standard tracks prevailing practice. Among some professional bodies and unregulated providers, that practice is affirmation rather than the legal standard of informed consent. Under Montgomery (2015), clinicians must take reasonable care to ensure patients are aware of material risks and reasonable alternatives to proposed treatment. Montgomery ended the rule that what other doctors do decides what patients must be told, so meeting a professional guideline does not, by itself, show those duties have been met.

Where prevailing practice favours affirmation, the Bill may therefore protect conduct within that practice without examining whether the patient received the information needed for an informed decision. The exemption also covers unregulated providers (EN para 32). They have no published standards to fall below, so for them the exemption has no clear benchmark.

Informed consent also requires disclosure of uncertainty. Where a pathway proceeds on the premise that a child has a settled transgender identity, the status of that premise is itself material information: there is no diagnostic test and no agreed definition, and the Cass Review Final Report p.13 (2024) found “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.” Clinical judgment decides which options are reasonable (McCulloch v Forth Valley Health Board [2023] UKSC 26), but the Montgomery duty then applies to them. CQC Regulation 11 imposes the same duty at service level. Minister Olivia Bailey has said that a person cannot consent to abuse. That is correct, but it answers a different question: the duty to disclose applies whether or not any conduct is abusive.

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Effects: A clinician following an affirmation-led pathway may receive the benefit of the healthcare exclusion, while a practitioner who questions that pathway or follows the legal standard of informed consent may face greater uncertainty about whether their conduct is protected.