R (AC) v Berkshire West Primary Care Trust Equality and Human Rights Commission (Intervenor)
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 2010 |
| Neutral Citation | [2010] EWHC 1162 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 May 2010 |
| Docket Number | Case No: CO/9250/2008 |
[2010] EWHC 1162 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Bean
Case No: CO/9250/2008
Stephanie Harrison (instructed by Public Law Solicitors, Birmingham) for the Claimant
James Goudie QC and David Lock (instructed by Bevan Brittan, London EC4) for the Defendant
Helen Mountfield QC (instructed by the Solicitor, EHRC) for the Intervener
Hearing dates: 11–13 May 2010
The Hon. Mr. Justice Bean:
The Claimant, who was born a man in 1951, was diagnosed as a transsexual in 1996 and started receiving hormonal treatment with a view to gender reassignment. Although the Claimant has not applied for a certificate under the Gender Recognition Act 2004, and thus remains legally a man, I shall refer to the Claimant as “she” or “her” in accordance with her wishes. In 1999 she changed to a female name. An anonymity order was granted at an early stage of the proceedings and remains in force.
The Claimant has been attempting for several years to obtain funding from the Defendants for breast augmentation surgery. By this claim she challenges decisions of the Defendants in 2006 and 2008 to refuse such funding, and the Defendants’ policies which gave rise to those decisions.
The claim was lodged on 30 th September 2008. On 5 th November 2008 Bennett J granted permission to apply for judicial review. In September 2009 the Equality and Human Rights Commissions (EHRC) applied for permission to intervene. Nicola Davies QC (as she then was) gave the commission leave to file written submissions. At the outset of the present hearing I asked for counsel to attend on behalf of the EHRC to supplement these by oral argument on the second day of the hearing.
The substantive application was originally to have been heard in October 2009. It was stood out of the list by consent upon the Defendants agreeing to reconsider their relevant policy and their decisions in the Claimant's case. That reconsideration led to the policy and the previous decisions being maintained, and the claim was accordingly restored to the list for hearing.
The Claimant's condition
The Claimant is a transsexual or trans person: that is to say, she has been diagnosed with what is variously called gender dysphoria or gender identity disorder (“GID”). Transsexuals constitute about 1 in 10,000 of the population of the UK, that is to say about 5,000 nationally. There are approximately 30 in Berkshire. I was not told how many of these were male to female, and how many were female to male transsexuals.
The PCT is prepared to commission what it describes as core GID services for her including genital reassignment surgery to enable the Claimant to become genitally female. She has not, at any rate so far, sought to have such surgery carried out.
As part of the treatment for GID the Claimant was provided with hormone therapy. Unfortunately the Claimant is one of the substantial minority of male to female transsexuals whose breast development as a result of hormone therapy is considered by them to be disappointing. The Claimant's GP, Dr. Denny, wrote in 2006 that the Claimant had found that her lack of breasts made it “much more difficult for her to feel feminine. It tends to get her down although she does not have a history of significant depression.”
Dr. Barrett, her treating clinician, is a consultant psychiatrist specialising in GID. He wrote:
“As somebody who has changed her gender role, [AC] is considerably more sensitive around issues of physical appearance than most, and clearly adequate breasts are something which are important in producing an effective impression of the femininity she psychologically experiences.”
In response to a question about the health benefit of the treatment Dr. Barrett wrote, on 16 May 2008:
“The effect of her not having gone an augmentation mammoplasty is one of chronic mild to moderate distress probably best characterised as an adjustment disorder. Whilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.”
On 7 th October 2008 Dr. Barrett wrote:
“I have to say that the self-consciousness has become quite marked as time has gone on, if for no other reason [than] that the patient has become increasingly focussed upon this issue and has become ever more psychologically invested in achieving the funding for an augmentation mammoplasty.”
The Defendants’ policies and funding priorities
The West Berkshire Primary Care Trusts (“PCT”) is one of nine in the South Central Strategic Health Authority area. The nine PCTs use the services of a non-profit NHS consultancy body called the Public Health Resource Unit (PHRU). One of its directorates, the Priorities Support Unit (PSU), is contracted to provide independent evidence-based advice to the Trusts concerning the clinical efficacy and cost-effectiveness of drugs and surgical procedures. The PSU in turn employs specialist consultants in public health medicine and other specialities. The Strategic Health Authority and PCTs in Berkshire also operate a Priorities Committee. The role of the PSU and the Priorities Committee is to advise the PCTs on the overall balance between competing treatments for different conditions, testing the evidence of clinical and cost effectiveness and seeking to make the best possible use of the limited resources of the NHS. They must do so against the background of sections 229(1) and 230(1) of the National Health Service Act 2006, which impose an absolute duty on a PCT to break even in each financial year.
The PSU produced what its director, Ms. Claire Cheong-Leen, described in her witness statement as an “evidence synthesis” on the management of gender dysphoria. This involved consideration of a very large number of background papers. A draft of the evidence synthesis was sent out to interested bodies and doctors for consultation. The reaction was generally favourable, although the Gender Identity Research and Education Society criticised some aspects of the policy. Dr Barrett responded to the consultation by writing that he was generally happy with the policy: he made some suggestions for amendments, but did not propose that breast augmentation for male to female transsexual patients should be included as a core procedure.
Both the draft document and the policy statement finally agreed by the Priorities Committee classified breast surgery as a non-core procedure. I must set out at this stage the July 2006 policy statement of the Priorities Committee on gender dysphoria in full:—
“Gender Dysphoria is a psychological state whereby a person demonstrates dissatisfaction with their biological sex, and requests sex reassignment. Management can be lengthy and expensive and comprises assessment, psychotherapy, real life experience, hormonal therapy and surgery.
• There is a clear consensus that equitable access to services for initial diagnostic assessment, hormone therapy and surgery is essential for those patients fulfilling the Harry Benjamin International Gender Dysphoria Association criteria.
• There is no professional consensus on the classification of core and non-core procedures for gender reassignment.
• There is limited evidence to suggest that gender reassignment surgery is effective. Much of the evidence in favour of or against gender reassignment surgery is of poor quality due to lack of standardised criteria for assessment and management.
• For most gender reassignment surgical (GRS) procedures, several techniques have been described with varying degrees of complications and patient satisfaction reported. In view of the heterogeneity of surgical techniques, outcomes, complications and patient choice, it is not appropriate to recommend any particular technique or procedure for all patients.
• There is no published evidence on the cost-effectiveness of gender reassignment surgery.
Core surgical procedures for male to female patients (MtF) are Penectomy, Orchidectomy, Vaginoplasty (including hair removal essential for vaginoplasty), Clitoroplasty, Labiaplasty. Core surgical procedures for female to male (FtM) patients are Mastectomy, Hysterectomy, Salpingo-Oophorectomy, Metoidioplasty, Phalloplasty, Urethroplasty, Scrotoplasty and placement of testicular prostheses.
The Priorities Forum recommends that:
1. Patients should be referred initially to a local NHS Consultant Psychiatrist.
2. Access to a specialist tertiary NHS commissioned Gender Identity Clinic for assessment, should be via tertiary referral from the local NHS Consultant Psychiatrist.
3. Specialist psychological support and hormonal therapy will be funded provided the above criteria have been fulfilled.
4. GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not routinely funded. Funding will be approved for core Gender Reassignment Surgery if the patient fulfils the current International Harry Benjamin Criteria and has been recommended as suitable for surgery by a specialist NHS Gender Identity Clinic.
5. Cosmetic surgery and other non-core procedures such as breast surgery, larynx reshaping, rhinoplasty, hair removal, jaw reduction and waist liposuction should not be considered as a core part of GRS. Patients who wish to be considered for those treatments should be considered in accordance with the existing Berkshire Priorities Committee policies on Cosmetic Breast Surgery (No. 7) and Cosmetic Procedures (No. 9).
Notes:
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