Utah law allowing minors to revoke medical consent is ‘attacking the foundation of the US health care system’

In Utah, patients who consent to “hormonal transgender treatment” or surgery on “sex characteristics” while they are minors are able to revoke their informed consent if they later regret receiving the care. Under the Health Care Malpractice Act, updated in 2023, minors can recant their consent before age 25 if they develop a “permanent injury” from their treatment, with the argument that their doctor should have anticipated the patient’s health outcome and subsequent regret.

Allowing patients to withdraw informed consent retroactively places an extreme burden on clinicians, limits access to gender-affirming care, and acutely threatens the legal infrastructure supporting US health care, according to a new perspective article by Boston University School of Public Health (BUSPH) and Cornell Law School (CLS) researchers.

“It is unrealistic and unreasonable to expect clinicians to predict which patients may later reverse their consent to treatment,” write Dr. Kimberly Nelson, associate professor of community health sciences at BUSPH, and Dr. Kristen Underhill, associate dean for faculty research and professor of law at CLS, in the New England Journal of Medicine. Instead of expanding health care options for minors, they write, this first-of-its-kind legislation will likely deter wary clinicians from providing this care at all.

Informed consent is a central component of health care, ensuring that patients receive appropriate information from their clinician about the risks and benefits of a medical procedure or treatment so that they can make educated decisions about their health. This consent promotes patient autonomy, ethical guidance from the doctor, and ongoing trust and communication between the doctor and patient.

The Utah legislation casts a cloud over this trusted process, leaving clinicians potentially liable for claims aligned with nonconsented care—by the minor patient or their parent/guardian—even years after they provided the treatment.

“Clinicians need to be able to rely on consent at the time of treatment,” says Dr. Nelson in a statement separate from the perspective. “Undermining this critical aspect of the clinician-patient relationship has the potential to greatly limit the treatments clinicians feel comfortable providing, which can have long-term implications for patients, clinicians, and medical care, more broadly.”

The new law puts clinicians at risk of litigation for treatment beyond gender-affirming care. For example, a physician can provide breast reduction surgery to a minor patient assigned male at birth for reasons other than gender dysphoria, such as breast cancer treatment. This broad interpretation of the law could discourage doctors from operating in practices that provide gender-affirming care altogether, or make them more hesitant to rely on minor consent for other treatments.

And while Utah is the only current state with this legislation, other states could swiftly follow suit, the authors warn.

“As we have seen in other politically fraught areas of medical care, state laws tend to be tested out in one or two states, then applied more broadly by other states and used to target other medical treatments,” says Dr. Underhill. “As such, it is possible that laws targeting not only gender-affirming care, but other areas of politically contested care—such as contraception, pregnancy, and vaccination—may also start adding provisions that allow patients to revoke their consent retroactively. This would make it more legally precarious for clinicians to provide this medical care.”

Doctors should not have to guess whether their patients who fully consented to care will change their mind at some point in the future, the authors conclude. “Clinicians in all areas should recognize that these laws are not just attacking gender-affirming care—they are attacking the foundation of the US health care system.”