R v North West Lancashire Health Authority, ex parte A ; D ; G
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,LORD JUSTICE BUXTON,LORD JUSTICE MAY |
| Judgment Date | 29 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0729-12 |
| Docket Number | QBCOF 1999/0226/4 QBCOF 1999/0230/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1999 |
[1999] EWCA Civ J0729-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE HIDDEN)
Royal Courts of Justice
Strand
London WC2
Lord Justice Auld
Lord Justice Buxton
Lord Justice May
QBCOF 1999/0226/4
QBCOF 1999/0228/4
QBCOF 1999/0230/4
MR D PANNICK QC and MR G CLARKE (Instructed by Hill Dickinson, Liverpool) appeared on behalf of the Appellant
MR N BLACK QC and MISS S HARRISON (Instructed by Tyndallwoods, Birmingham) appeared on behalf of the Respondent
These are appeals by the North West Lancashire Health Authority against the order of Hidden J. on 21 December 1998 quashing its decisions refusing to fund gender reassignment surgery for A, D and G and its policy on which it based those decisions.
A, D and G suffer from an illness called "gender identity dysphoria", commonly known as transsexualism. Each was born with male physical characteristics, but psychologically has a female sexual identity. Each has been living as a woman for some years. At the material time A and G had each been diagnosed by a specialist consultant to have a clinical need for surgery substituting female for male characteristics, a procedure known as "gender re-assignment surgery. D was awaiting assessment of suitability for such surgery. They all challenge the Authority's refusal to fund their treatment, including surgery, under the National Health Service because of its policy not to do so in the absence of "overriding clinical need" or other exceptional circumstances. They maintain that they are ill and that the Authority's policy, and refusals pursuant to it, to fund treatment for them are irrational. The Authority justifies its policy and refusals on the ground that it has a statutory obligation to care for all within its area and limited financial resources with which to do so, requiring it to give a lower priority to some medical conditions than to others and that transsexualism rightly has a low priority.
Before I turn to the Authority's policy and put it in the context of its statutory duty to provide medical care for all within its area, I should say something about the facilities for and scheme of treatment of persons seeking this sort of treatment. I take this from the unchallenged evidence of a number of leading experts on the treatment of transsexuals put on behalf of the respondents before Hidden J., and which he accepted. There is only one specialist clinic in the country, the Gender Identity Clinic in the Charing Cross Hospital in London. Patients suspected of suffering from transsexualism are normally referred to the Clinic for diagnosis and appropriate treatment from all over the country. The starting point for anyone seeking treatment is a period of consultation with a specialist there to diagnose his or her condition and to assess suitability for treatment. If considered suitable, this may be followed by a course of administration of hormones and psychiatric "monitoring" and a period of living and working as a woman ("the real life test") and, finally, in appropriate cases by surgery. All this may take up to two years or more.
The Authority has no comparable facilities or consultant psychiatrists with similar specialist expertise. If it were to accept responsibility for funding such treatment for a patient within its area, it would have to do so by making an "extra-contractual referral" to the Charing Cross Clinic. And the Clinic will normally only accept a patient for that course of treatment against a commitment from the Authority that it will meet the cost of surgery should it prove necessary. In 1995 the cost of surgery was at least £8,000. Transsexualism is a rare condition and only a small number of patients accepted by the Charing Cross Clinic for preparatory counselling, hormonal treatment and monitoring ever reach the stage of surgery.
In 1995 the appellant Authority succeeded the Blackpool Health Authority on its amalgamation with another Authority. Until then the Blackpool Health Authority had funded gender reassignment treatment where a local consultant psychiatrist recommended that it was necessary. In 1993/94 it had referred 13 patients to the Charing Cross Clinic. As will appear, the Authority in 1995 adopted a new highly restrictive policy against such referral, and since then has made no referrals.
The Authority's statutory obligations
The National Health Service Act 1977, by section 1(1), imposes on the Secretary of State a duty —
"… to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement —
(a) in the physical and mental health of the people of those countries, and
(b) in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act."
In section 3, it elaborates on that duty by obliging him —
" … to provide … to such extent as he considers necessary to meet all reasonable requirements—…
(e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service;
(f) such other services as are required for the diagnosis and treatment of illness."
It is important to note the qualifications in those provisions, as this Court observed in R v. North & East Devon Health Authority, ex p. Coughlan 16th July 1999 (unreported), at page 8 of the transcript. The first is that section 1(1) does not oblige the Secretary of State to provide a comprehensive health service, but "to continue to promote" such a service. The second and third are that section 3 limits his duty of provision of services "to such extent as he considers necessary to meet all reasonable requirements", and, in the case of the facilities referred to in (e), to those "he considers are appropriate as part of the health service".
The 1977 Act provides, by section 13, that the Secretary of State may direct a Regional Health Authority to exercise those functions and that the Authority has a duty to comply with such direction. The Secretary of State, by the National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 (1996 No. 708), has directed that the appellant and other Regional Health Authorities shall exercise the functions in sections 1 and 3 of the Act, thus imposing on them the duty to provide
"to such extent as [it] considers necessary to meet all reasonable requirements … such … services as are required for the diagnosis and treatment of illness".
The Act, in section 128, defines the word "illness" as including "mental disorder within the meaning of the Mental Health Act 1983 and any … disability requiring medical … treatment or nursing". It is common ground for the purpose of this appeal that transsexualism is an illness in the nature of a mental disorder for the purposes of sections 1 and 3.
The qualifications in the statutory duties imposed by the 1977 Act to which I have referred make plain that it is for the Authority to judge what services it should provide, and to what extent, to meet all reasonable requirements for them. In Coughlan the Court said as to the originating and corresponding obligations of the Secretary of State, at page 9 of the transcript:
"25. When exercising his judgment he has to bear in mind the comprehensive service which he is under a duty to promote as set out in section 1. However, as long as he pays due regard to that duty, the fact that the service will not be comprehensive does not mean that he is necessarily contravening either section 1 or section 3. The truth is that, while he has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty, a comprehensive health service may never, for human, financial and other resource reasons, be achievable. Recent history has demonstrated that the pace of developments as to what is possible by way of medical treatment, coupled with the ever increasing expectations of the public, mean that the resources of the NHS are and are likely to continue, at least in the foreseeable future, to be insufficient to meet demand.
26. In exercising his judgment the Secretary of State is entitled to take into account the resources available to him and the demands on those resources. In R v. Secretary of State for Social Services and Ors ex parte Hincks [1980] 1 BMLR 93 the Court of Appeal held that section 3(1) of the Health Act does not impose an absolute duty to provide the specified services. The Secretary of State is entitled to have regard to the resources made available to him under current government economic policy."
The Authority's policy
In 1995 the Authority adopted a policy allocating a low priority for public funding of procedures it considered to be clinically ineffective in the sense of achieving no or little clinical gain. It was entitled "Medical Procedures Of No Beneficial Health Gain Or No Proven Benefit". It referred, in paragraph 1.1, to its predecessors' policies, under the then "internal market" system, to provide "more effective health care", to "promote effective health gain, rather than … ineffective health care", and of "a limited number of procedures where there should be restrictions on the level of care purchased, or procedures which should not be purchased at all … subject to overriding clinical need". In paragraph 2, under the heading "Background", it set out the Authority's...
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