AA + ORS v NHS Commissioning Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 16 January 2023 |
| Neutral Citation | [2023] EWHC 43 (Admin) |
| Docket Number | Case No: CO/4311/2021 |
| Court | King's Bench Division (Administrative Court) |
The King on the application of
and
[2023] EWHC 43 (Admin)
Mr Justice Chamberlain
Case No: CO/4311/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Lock KC and Jason Pobjoy (instructed by Rook Irwin Sweeney LLP) for the Claimants
Eleanor Grey KC (instructed by Blake Morgan LLP) for the Defendant
Hearing dates: 29 and 30 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 16 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
Since 2012, NHS England (“NHSE”) has had the function of commissioning specified services for rare and very rare conditions. These include gender identity development services for children and adolescents (“children's GID services”) and gender identity disorder services for adults (“adults' GID services”). The demand for these services increased substantially from 2012 to 2017, but capacity did not keep pace with this demand. The result has been very long waiting times for the children, adolescents and adults referred for these services.
The first two claimants, AA and AK, are children who have been referred to the Tavistock and Portman NHS Foundation Trust (“Tavistock”), which is currently the sole provider of children's GID services. When this claim was filed, AA had been waiting 18 months for a first appointment and AK had been waiting nearly three years. The third and fourth claimants, Alexander Harvey and Eva Echo, are adults. Both have been referred for treatment at a gender dysphoria clinic. At the time when the claim was filed, Mr Harvey had been waiting over 2 years for a first appointment and Ms Echo over 4 years, though she has had some treatment for which she paid privately. The fifth claimant is a trans-led charity working across the UK, whose mission is to increase understanding of gender diversity and improve the lives of trans people. The sixth claimant is a not-for-profit company which campaigns on a wide variety of issues, including the rights of the transgender community.
There were originally six grounds of challenge. Only five are now pursued. These are that NHSE has acted unlawfully by:
(a) breaching its statutory duty under reg. 45(3) of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”) to ensure that 92% of NHS patients referred for the services it commissions have commenced appropriate treatment within 18 weeks of referral ( Ground 1);
(b) breaching its statutory duty under s. 3B of the National Health Service Act 2006 (“the 2006 Act”) by arranging services for children who may need puberty-delaying treatment in such a way that the children will be unable to access the services before the onset of puberty ( Ground 2);
(c) breaching its statutory duty under s. 2 of the Health Act 2009 by failing to have regard to the right of adult gender dysphoria patients under the NHS Constitution to commence treatment within 18 weeks of referral ( Ground 3);
(d) directly or alternatively indirectly discriminating against the first to fourth claimants, because they have the protected characteristic of gender reassignment, contrary to s. 29 of the Equality Act 2010 (“the 2010 Act”) ( Ground 4); and
(e) failing to comply with the public sector equality duty in s. 149 of the Equality Act 2010 in making arrangements for the provision of services to people seeking treatment for gender dysphoria ( Ground 6).
Background
Conditions and treatments
In this field, terminology matters. I have followed the terminology recommended by one of the claimants' witnesses, Dr Michael Toze, Senior Lecturer Public Health and Social Determinants at Lincoln Medical School.
“Trans” is an umbrella term describing people who do not identify with the sex they were assigned at birth. Some, but not all, trans people undergo a process of social, legal and/or medical transition in order to live a life that better aligns with their sense of self. This case concerns a sub-set of trans people: those seeking medical help in connection with their gender identity.
The understanding of the medical condition for which treatment is given has changed over the years. The two diagnoses currently in use are “gender dysphoria” (the term used in the current edition of the Diagnostic and Statistical Manual: DSM-V) and “gender incongruence” (the term used in the current edition of the International Classification of Diseases: ICD-11). ICD-11 distinguishes between “gender incongruence of childhood” and “gender incongruence of adolescence and adulthood”. Neither is classified as a mental health condition; both are “conditions relating to sexual health”.
A number of therapies are available to help those with gender incongruence to live and present themselves in a way they feel comfortable with. These include hormonal therapies, surgery, voice therapy and electrolysis to remove hair. Specialist psychological therapy is also available, though it is not routinely offered to adults. Some trans people referred for treatment decide not to have any of these therapies; some decide to have one or more, but not others.
The services provided
The principal evidence as to the services provided to those referred for treatment for gender dysphoria/gender incongruence comes from the witness statements of Jeremy Glyde, Head of the Medical Projects Team (Specialised Commissioning Directorate) at the NHS Commissioning Board. As he explains, NHSE has operated alongside a legally distinct body, NHS Improvement. The two organisations operated as a single team and were referred to as “NHSE/I” until 1 July 2022, when the functions of NHS Improvement were formally assumed by NHSE under the Health and Care Act 2022. In this judgment, I have used the term “NHSE” throughout, rather than distinguishing between NHSE/I (pre-1 July 2022) and NHSE (afterwards).
Services for children and adolescents
A service for children and adolescents presenting with gender incongruence has been commissioned by the NHS since the 1990s. The current Service Specification came into effect in 2016, following stakeholder engagement and public consultation. It follows the World Professional Association for Transgender Health Standards of Care, version 7 (which is currently under revision). It was also informed by existing practice at Tavistock, a Mental Health Trust, which runs the children's GID service and is currently the sole commissioned provider of that service in England.
The service is led not by a consultant medical practitioner, but by a clinical psychologist. The service specification describes the psychosocial and psychological aspects of the clinical pathway delivered directly by the children's GID service and also provides that referrals may be made to consultant paediatric endocrinologists at University College London Hospital or Leeds Teaching Hospital for assessment for suitability for treatment with gonadotropin releasing hormone analogues (“puberty blockers”) or, from the age of around 16, exogenous gender affirming hormones.
The service receives 93% of its funding from NHSE and the remainder from NHS Wales and other commissioning bodies, such as those for the Channel Islands and the Republic of Ireland. The portion of annual funding which comes from NHSE has increased from £2.6m in 2015/16 to £4.1m in 2016/17, to £5.5m in 2017/8, to £5.7 in 2018/9, to £8.1m in 2019/20, to £8.2m in 2020/21, to £8.3m in 2021/22. The increase in funding from 2015/16 to 2021/22 was 219%. Tavistock has, however, been unable to increase its capacity commensurately. In the 15 months to May 2020, it had particular difficulty recruiting and retaining staff. Its clinical establishment was 62.5 whole time equivalents (“wte”), 20% lower than it had been in 2020, of whom only 43.6 were capable of independently assessing and diagnosing patients.
Despite the attrition in staff numbers, NHSE did not reduce the funding available to Tavistock and, during 2020/21 and 2021/22, invited Tavistock to submit proposals for deploying additional investment to increase clinical capacity or otherwise support children and adolescents on the waiting list. NHSE has indicated that it is prepared to make available funding without the need for prior authorisation for Tavistock to fill vacant clinical posts up to its previous clinical establishment of 84.5 wte. At the time of signing his statement in June 2022, Mr Glyde said that it was not likely that this would be achieved before December 2022 at the earliest and, even then, new staff would have to receive training, which would reduce the number of clinical staff available for treating patients.
In 2019, NHSE asked Dr Hilary Cass OBE, a retired consultant paediatrician and former President of the Royal College of Paediatrics and Child Health, to chair a working group to examine the published evidence so as to inform a review of how the NHS commissions puberty blocking drugs and exogenous hormone drugs for children seen by the children's GID service. Initially the work centred on requests to NICE for a formal review of the evidence on the efficacy of puberty blockers and gender affirming hormones. NICE delivered its evidence reviews in 2021, concluding that the evidence...
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