This article has been written by Kyrie James,
a health law solicitor working for Rowe & Maw,
specifically for Northern Concord members and friends.

In the face of limited public funds, the NHS continually faces difficult decisions on what operations and treatment to fund. It is hoped that the recent establishment of the National Institute of Clinical Excellence (NICE) and its role in monitoring and advising NHS bodies on the efficacy of the many procedures and treatment regimes, will go some way to addressing the problem of ‘post code treatment’ - i.e. where a patient’s likelihood of receiving treatment is based on where they live and the particular policies undertaken by the health authority in that area for that type of treatment. Transsexuals will no doubt have experienced different responses from GPs and whether they receive treatment or not, and the type of treatment offered, will depend upon whether the health authority for their area has decided to fund such treatment.

The recent case of North West Lancashire health authority ex parte A & others, first heard in December 1998, may prove helpful to transsexuals seeking treatment in areas where health Authorities have refused to fund treatment and/or failed to consider the health care requirements of a transsexual as a bone fide clinical need.

This case concerned a decision by a health authority to refuse to undertake, or make an extra-contractual referral for, hormonal treatment or gender reassignment surgery for three patients in their area who suffered from the illness of GID (Gender Identity Disorder). The applicants were three male-to-female transsexuals (who were in varying stages of treatment) who requested extra-contractual referrals to Charing Cross GID Clinic for specialist assessment and diagnoses for further hormonal treatment and surgical intervention to complete their gender reassignment. No such health service was offered in their area.

The health authority had introduced a policy in 1995 which classified "medical procedures of no beneficial health gain or no proven benefit as procedures they would not fund, subject to an "overriding clinical need". Examples of such procedures were gender reassignment and reversal of sterilisation operations. In 1998 a further policy stressed cost-effectiveness and the evaluation of the need and appropriateness of various treatments before such health care would be purchased. Based on these policies, the health authority decided to offer psychotherapy to transsexuals to reconcile them to their biological gender and refused to purchase any drug treatment or surgery or make any extra-contractual referrals.

The three transsexuals (the applicants, A aged 22 and D and G both aged 51) decided to take the health authority to Court and judicially challenge this decision. A Court will not consider the merits of any particular case in a judicial review. It will only decide whether a decision by a public body is valid on the grounds of illegality, irrationality and unfairness. When the Court reviewed the health authority’s decision, it did not question the clinical judgements made or the allocation of resources from a tight health care budget, but instead reviewed the questions addressed by the health authority to establish whether the policy was lawful. 

It was accepted that GID was a recognised illness and under the NHS Act 1977 the health authority had a duty to prevent, diagnose and treat such patients. But the health authority believed one method of ensuring the appropriate application of limited funds for health care would be to identify inappropriate treatment which had no proven medical benefit to the patient i.e. hormonal and surgical treatment for transsexuals. However, the Court found that this policy was unlawful on the following grounds:

• It fettered the health authority’s discretion in discharging its duty of providing treatment and facilities for the prevention of illness and the cure of persons suffering from GID.

• To require the applicants to suffer from a pathological psychiatric disorder before treating them was irrational, as it would preclude the applicants from receiving surgery, as there was also a precondition of mental stability.

• The health authority were unable to define what would constitute "an overriding clinical need" and effectively excluded the exercise by the authority of a medical judgement in the individual circumstances of each case. Thus their policies went beyond merely rationing reassignment treatment, they were effectively a blanket ban on any gender reassignment treatment.

• The health authority had failed to consider what constituted GID and what its proper treatment should have been. There was a lack of understanding by the health authority of transsexualism as a psychiatric disorder and its policies were based on a discredited and outmoded view of transsexualism which was at odds with accepted clinical opinion. Refusal to fund such treatment was a conclusion reached without adequate research based on an erroneous equation of transsexualism with cosmetic preference for an enhanced body image.

The health authority went to the Court of Appeal on 29 July 1999 to overturn this decision but their appeal was unsuccessful. The Court found the health authority’s policy was unlawful and was therefore quashed. The cases were remitted back to the health authority for consideration on their individual merits.

The applicants had also argued that their human rights had been breached as they had been discriminated against, i.e. they had been treated adversely due to their transsexualism. The Court disagreed with this point stating it was not a matter of sexual or any other discrimination (against which the law provided protection); it was a matter of different priorities for different illnesses which concerned medical judgement.

Although this ruling does not give a patient the right to demand treatment on the NHS, it does mean that health authorities will not be able to rule out funding such operations entirely.

During the course of the affidavit evidence submitted to the Court, it was found that a number of health authorities had similar policies regarding gender reassignment surgery. Therefore a number of health authorities’ existing policies on the funding of treatment for transsexuals are probably unlawful and open to being challenged by way of judicial review. People seeking such treatment should ensure that their health authority are aware of this case when seeking to have their health needs addressed.

The introduction of the Sex Discrimination (Gender Reassignment) Regulations 1999 which introduces changes to the Sex Discrimination Act 1975 making discrimination in employment on the grounds of a person’s gender reassignment unlawful, together with the new Human Rights Act 1998, reflects a change in social moves and a move towards the legal protection of transsexuals within society.

Kyrie LI James, the writer of this article, is a health law solicitor in the Public Law Group of Rowe & Maw. Initial consultations with clients are provided free of charge.

Rowe & Maw
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London,
EC4V 6HD

Email: kjames@roweandmaw.co.uk

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