R (AC) v Berkshire West Primary Care Trust Equality and Human Rights Commission (Intervenor)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper,Master of the Rolls |
| Judgment Date | 11 March 2011 |
| Neutral Citation | [2011] EWCA Civ 247 |
| Docket Number | Case No: C1/2010/1707 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 2011 |
[2011] EWCA Civ 247
Bean J
Before : Master of the Rolls
Lord Justice Sedley
and
Lord Justice Hooper
Case No: C1/2010/1707
CO/9250/2008
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Stephanie Harrison (instructed by Public Law Solicitors) for the Appellant
James Goudie QC & David Lock (instructed by Bevan Brittan Solicitors) for the Respondent
Ms Mountfield QC (in writing only) for the Intervenor
Hearing date: 2 March 2011
Lord Justice Hooper:
Introduction
The appellant was born in 1951 as a man. In 1996 she was diagnosed with Gender Identity Disorder ("GID"). To put it simply, a natal male with GID has the psychological outlook and mindset of a woman but the body of a man.
An anonymity order was granted at an early stage of the proceedings and remains in force.
In 1996 she began gender reassignment treatment primarily by way of hormone treatment. She has lived as a woman since then and she adopted a female name in 1999. She has not applied for a gender recognition certificate under the Gender Recognition Act 2004 and remains legally a man. She has not undergone, nor has she requested funding for, genital reassignment surgery. It was hoped by the appellant that the hormone treatment would, amongst other things, significantly increase the size of her breasts. Unfortunately in the appellant's case, her expectations were not met and she became, and remains, very disappointed. Her breast development as a result of that therapy led her to have "Tanner Scale 3" breasts, which, whilst within the wide range of sizes for women as identified by the Tanner scale, would normally be found in females of 11–13 years old. We were told that in over 40% of patients like the appellant, the hormone therapy provides appropriate breast tissue.
The appellant made an application to the respondent Primary Care Trust ("PCT") for funding to pay for breast augmentation surgery (augmentation mammoplasty) in May 2006.
Dr Barrett, her treating psychiatrist, explains in a witness statement his view as to the importance to the appellant of the surgery requested:
Without adequate breast development [the appellant's] gender dysphoria will not be adequately treated and therefore she will continue to suffer from her primary psychiatric illness i.e. Gender Identity Disorder as well as any secondary psychiatric conditions attributed to the refusal of treatment, such as adjustment disorder or depression. She will therefore continue to suffer the psychological consequences of untreated gender dysphoria and in my view will and has continued to need psychological support [for] this.
The appellant puts it this way:
I have exceptional circumstances in that I haven't developed proper breasts. For a male to female transsexual to have breasts is a very natural and moral request. It is also necessary to establish feminisation in my journey from male to female. My life will be one of turmoil if this is denied. Not fully knowing what or who I am and neither will those around me in every day life.
Hormones also make one impotent, cause the penis to shrink and libido diminishes to nil. Hormones haven't changed my form, my body is still recognisably male after 11 years of treatment…I have to carry on as I am, unable to be a woman, and hopeless sexually as a man.
The appellant supported her application then and later with letters from her general practitioner and her psychiatrist supporting her application. Dr Denny, in a letter of 23 rd May 2006 wrote:
She has recently been seen there in clinic and her psychiatrist feels that she would be a good candidate for augmentation mammoplasty. [AC] has always found her lack of breasts difficult, finding it makes 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 Denny in a later letter dated 13 July 2006 wrote:
She is not looking for full sex-reassignment surgery but for breast augmentation.
She feels that her lack of breasts makes her feel particularly unfeminine and believes that this type of surgery would have the most effect on improving her femininity.
The appellant's consultant psychiatrist, Dr Barrett, explained his reasons for supporting the application for the NHS to fund breast augmentation surgery for the appellant in a letter dated 13 th July 2006 which said:
I do think that it would be helpful if she could be offered surgery in order to correct breast asymmetry. As somebody who has changed her gender role, she 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. I strongly believe that such surgery would be likely to improve her state of mind.
The respondent submits in its skeleton argument:
12. When the application for NHS funding was originally made there was no suggestion that there was a serious mental health or psychological element to the application or that the requested operation was an essential part of the gender transformation process for the Appellant (or for GID patients generally). The application for funding was substantially justified on the basis that it would enable the Appellant to feel more feminine.
On 16 May 2008 Dr Barrett wrote:
The effect of her not having undergone 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.
Dr Barrett on 7 October 2008 wrote:
I have to say that this self consciousness has become quite marked as time has gone on, if for no other reason that the patient has become increasingly focused upon this issue and has become evermore psychologically invested in achieving the funding for an augmentation mammoplasty.
The appellant's application was first refused in June 2006. That first refusal was followed by a protracted internal appeals process with two complaints upheld by the Health Commission. After reconsideration, the appellant's application was finally refused on 5 December 2008.
The PCT (which is subject to an absolute duty to break even in each financial year) accepts that GID is a recognised medical condition and accepts that the appellant has GID. It has a Gender Dysphoria Policy which makes provision for medical treatment including surgery for GID patients whether transgender females, like the appellant, or transgender males. In the view of the PCT the requested surgery could not properly be funded under the terms of this or under its Cosmetic Breast Surgery Policy.
The appellant challenged the respondent's refusal to fund breast augmentation surgery by way of judicial review. Permission having been granted, the challenge was heard by Bean J.
Bean J in a careful and well thought out judgment dismissed the application for judicial review [2010] EWHC 1162 (Admin). The appellant appeals with the permission of Pill LJ. The Equality and Human Rights Commission ["EHRC"] has made written submissions. The EHRC submission contains an error in so far as it states that the appellant sought breast augmentation treatment to complete a successful physical reassignment to being a female.
Although the challenge is to the refusal contained in the 5 December letter, all but one ground of appeal (Ground 6) concentrate on the lawfulness of the policies relevant to the decision which the respondent had to make. Ground 6 assumes the policies to be lawful and challenges the rationality of the decision not to fund breast augmentation surgery because of alleged exceptional circumstances.
The Policies
There are two relevant policies: the Gender Dysphoria Policy dated July 2006 and the Cosmetic Breast Surgery Policy dated January 2004 and updated in 2008.
The Gender Dysphoria Policy divides various procedures into core and non-core and also uses the expression "low priority". For my purposes it is sufficient to say that core procedures will be routinely funded if that procedure is sought by the patient and recommended by the treating clinician subject to specified criteria being met whilst non-core or low priority procedures will not routinely be funded but may be funded in exceptional circumstances.
The Gender Dysphoria Policy was preceded by and (it is accepted) reflects the conclusions of a paper headed "Management of Gender Dysphoria" dated May 2006. That paper sets out in some detail the conclusions of the Court of Appeal in the leading case of R v North West Lancashire Health Authority ex parte A, D and G [2000] 1 WLR 977.
Following the amendment of this application by the appellant to raise discrimination issues and the intervention of the Equality and Human Rights Commission, the respondent commissioned a further report, known as the Bazian Report which is dated March 2010. According to the Report "There are no persuasive evidence reasons for a change to" the Policy. The Bazian Report looked specifically at breast augmentation surgery for transfemales like the appellant.
It is necessary to set out the Policy in full:
Gender Dysphoria is a psychological state whereby a person demonstrates dissatisfaction with their biological...
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