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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AC v Berkshire West Primary Care Trust  EWHC 1162 (Admin) (25 May 2010)
Cite as:  EWHC 1162 (Admin), (2010) 116 BMLR 125, 116 BMLR 125,  ACD 75,  Med LR 281
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|BERKSHIRE WEST PRIMARY CARE TRUST
|EQUALITY AND HUMAN RIGHTS COMMISSION
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
Crown Copyright ©
The Hon. Mr. Justice Bean :
The Claimant's condition
"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."
"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."
"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
"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).
1. Exceptional circumstances may be considered where there is evidence of significant health impairment and there is also evidence of the intervention improving health status.
2. This policy will be reviewed in the light of new evidence or guidance from NICE."
"Cosmetic breast surgery is a LOW PRIORITY. There is no evidence that cosmetic breast surgery will resolve psychological symptoms, only which arise from the size and or shape of the breast. Patients with congenital absence or gross asymmetry may be eligible [for breast augmentation] if there is a related effect on health and there is a reason to believe that surgical intervention will improve health status"
The decisions under challenge
"…there was extensive documented history of psychological illness requiring professional intervention and medication to manage depression. This actively impacted on [her] ability to maintain social engagements and a withdrawal from school. This was identified in conjunction with a diagnosis of congenital absence of breast tissue."
"….[t]he extent of mental illness documented was substantially different to the chronic mild to moderate distress best described as an adjustment disorder as outlined by the psychiatrist in [AC's] case. He considered that it remained questionable whether Ms. X's case should have been supported."
"All previous systematic reviewers of the literature conclude that there is a lack of robust evidence to judge the effectiveness of Gender Reassignment Surgery for transsexuals. The PSU's evidence synthesis had similarly found an "absence of reliable evidence" that breast augmentation was clinically effective for the long term resolution of poor body self image, and associated psychological difficulties, for either biological women or trans-females." (witness statement of Dr. Claire Cheong-Leen, para 18)
"For individual patients who have a serious medical condition, the first issue is whether a proposed treatment is or is not clinically effective. Patients are rightly concerned about whether a treatment will work, and whether it carries risks of side effects. However many, if not most, medical treatments only work for a proportion of the population. That proportion can be very high or quite low, depending on the individual treatment. Many medical interventions are provided to a large number of patients, even though the numbers who experience a proven benefit is relatively quite small…… For individual patients, the balance is between the potential benefits of a treatment and the potential risks. However it is different for the PCT. We have to make decisions about which treatments to purchase to provide the most benefit with the most significant impact for our population and at the same time follow the other commissioning principles which the PCT has developed. The issue for the PCT is not just whether a treatment is clinically effective. In order to deliver on our obligations to the population as a whole, we need to be satisfied that the treatment is cost effective. The principles of cost effectiveness have been developed by academics and are now a part of the working methods of the National Institute for Health and Clinical Excellence ("NICE")."
" [D]octors have a duty of care to their patients and thus press for the best possible care for each and every patient they are treating. The treating consultants are generally not concerned with issues of overall cost effectiveness. Their role is to press for the best treatment for their patient. Where such treatment is not routinely commissioned by a PCT, the consultant is not able to provide the treatment as part of NHS care unless an exception is made for the patient. The role of the consultant in such cases is to write letters and reports to seek to persuade the PCT to fund the treatment for patients."
Budgets and priorities
"This means that we need to consider carefully the costs of different treatments and the benefits that a treatment delivers before we plan to commission it. For the PCT, the decision to commission a particular kind of treatment is not just a question of whether a medical treatment is clinically effective: if a treatment is not clinically effective we would not commission it. However, if a treatment is clinically effective, the PCT needs to judge whether the treatment is a cost effective use of the limited resources available to it. As the PCT has a fully committed and limited budget, the duty to break even means that if we commission additional services we need to pay for this by disinvestment from other services.
The PCT is allocated a budget by the Government and needs to meet all costs out of that budget, including paying for high cost drugs. It may be helpful if I give a practical example from another PCT. In about 2006 when there were widespread demands to fund the cancer drug Herceptin, a Midlands PCT was prevailed upon to do so, and, in order to remain in financial balance, reduced the budget for services to patients with learning disabilities by about £1m per year. Whilst I am sure that the patients who were pushing for that PCT to fund Herceptin would have been horrified if they knew that the practical result of securing funding for the Herceptin drug was a reduction on services to a vulnerable group like those with learning disabilities, these are the real choices that NHS managers have to make. The PCTs can only spend money from taxpayers once."
"I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it costs, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court."
"… it is an unhappy but unavoidable feature of state funded healthcare that … health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping will in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible. It makes sense to have a policy for the purpose – indeed, it might well be irrational not to have one – and it makes sense too that, in settling on such a policy, an authority would normally place treatment of transsexualism lower in its scale of priorities than, say, cancer or heart disease or kidney failure. Authorities might reasonably differ as to precisely where in the scale transsexualism should be placed and as to the criteria for determining the appropriateness and need for treatment of it in individual cases."
"It is proper for an authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in "exceptional circumstances" and to leave those circumstances undefined; see In re Findlay  1 AC 318, HL, per Lord Scarman at 335H-336F. In my view, a policy to place transsexualism low in an order of priorities of illnesses for treatment and to deny it treatment save in exceptional circumstances such as overriding clinical need is not in principle irrational, provided that the policy genuinely recognises the possibility of there being an overriding clinical need and requires each request for treatment to be considered on its own individual merits."
"In practice I do not believe that the Case Review Committee has problems as a result of there being no policy defining exceptionality. Priority policies are made by the Berkshire Priorities Committee and policies are prepared which set out who is entitled to NHS treatment in specified clinical circumstances. However, there are always cases significantly outside the normal range [as defined in the policy], such that the circumstances might be considered to be exceptional. These are the cases which the Case Review Committee is asked to review.
I believe it is impossible to define in advance what is "exceptional". It depends on the individual circumstances. With patients, when looking to see whether their situation is exceptional, it is important to compare the patient with the cohort of patients who have the same condition. Thus in this case the Claimant could only be considered to be exceptional if she were exceptional as compared to other individuals who were seeking breast augmentation surgery."
"…a policy of withholding assistance save in unstated exceptional circumstances... will be rational in the legal sense provided that it is possible to envisage and the decision-maker does envisage, what such exceptional circumstances might be. If it is not possible to envisage any such circumstances then the policy will be in practice a complete refusal of assistance: and irrational as such because it is sought to be justified not as a complete refusal but as a policy of exceptionality."
Like treatment of unlike cases
The intervention by the Equality and Human Rights Commission
"The Defendant's approach is the same as the error which courts made before corrected by the decision of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd (No 2) [1995 ICR 1021 by comparing a pregnant woman with a sick man. In that case a woman claimed to have been directly discriminated against on the grounds of her sex when she was dismissed from an indeterminate appointment (but with a view to replacing a pregnant employee during maternity leave), but she discovered that she was herself pregnant. The House of Lords initially considered that there was no direct discrimination because the woman was treated the same way as a hypothetical man who would also have been unavailable for work at the material time, the precise reason for unavailability being irrelevant. However, the House of Lords referred the matter to the ECJ. The ECJ held that to dismiss the woman for pregnancy, in circumstances where a man who was indisposed for a similar period would also have been dismissed, was discrimination on grounds of sex because only women could get pregnant, and so this was a difference of treatment by reference to an inherent aspect of being a woman.
When one is addressing the need for treatment to change shape, one cannot rationally compare a transgender woman with a natal woman: the very issue which is being raised is inherent in the gender dysphoria which leads to discrimination. Only a transgender woman needs breasts to address the very condition from which she suffers, and only transsexuals suffer, of living in a body which is not the gender which they feel themselves to be. Thus, in the same way that treating the needs of a pregnant woman as analogous to the needs of a sick man is inherently discriminatory on ground of sex (because pregnancy is a gender specific condition and the needs arising from it are inherent in it), so as to treat the needs of a transgender woman as analogous to the needs of a natal woman is inherently discriminatory on grounds of gender reassignment (because being transgender is a specific protected status, and the needs arising from it are inherent in it.) Hence, to assert that there is no discrimination between a transgender woman denied treatment specific to that condition which is also denied to a natal woman because they have been treated 'the same way' is simply to fail to recognise the very feature which leads to discrimination.
Since that was (and is) the Defendant's approach, the Commission continues to consider that it has failed to address the needs of transgender people correctly. That is not to mistake the gender equality duty for a duty actually to achieve equality in a specific case: as in Meany, it is a duty to give due (ie correct) regard to the relevant considerations. However, the facts of this case appear to illustrate that the consequence of a failure properly to comply with the gender equality duty can indeed prove to be discrimination which is unlawful, or an irrational decision, on the facts of a particular case."
"… it is impossible to see how the Applicants have been the victims of discrimination on the grounds of sex. True it is that they seek a particular treatment related to their sexuality: but that has been refused not because of that sexuality but on grounds … of allocation of resources. If it were an act of discrimination simply to refuse treatment that was related to sexuality, the health authority would be obliged to provide such treatment in every case, whatever the other cause on its resources. Mr Blake understandably declaimed the latter argument; but I fear that it is the inevitable corollary of categorising this case as one of discrimination in terms of Council Directive 79/7/EEC."
"In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing."
"The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning."
"It is important for the PCT (and the Court) to appreciate what the PCT subcontracted to Bazian. They were asked to conduct an evidence review. They were not asked to (and did not) themselves seek the views of experts in the field of treatment of those with gender dysphoria, nor did they seek any evidence of [their] own from transgender women or others as to their psychological perception of their need for breast augmentation nor any attitudinal research to support or rebut the assertion that breast augmentation – hormonal or surgical – has any different psychological importance for a transgender woman compared with a natal woman."
"The PCT's initial position was that it did not undertake any form of equality impact assessment when reviewing its cosmetic surgery policy in October 2008, but was not required to do so because the policy does not differentiate in treatment between genetic women and transgender women. It then adjourned to enable it, in effect, to undertake a retrospective review of its policies.
In the Commission's view, that was in any event too late to render it compliant with the PCT's duties under the gender equality duty. Those duties required it to pay 'due regard' to the statutory equality needs at the time when the relevant policies were formed (or continued, after the duty came into force). Retrospective consideration is not adequate to comply with the duty, for the reasons set out in the cases, and the Commission would like the court to make a declaration to that effect, because it considers that this is a point of general, and wider, public importance, upon which it is important to obtain clear judicial guidance. In practice, though, the review might (if appropriately carried out, asking the right questions) have cured any potential practical problems arising."