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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 >> KK, R (On the Application Of) v Tavistock And Portman NHS Foundation  EWHC 3565 (Admin) (20 December 2019)
Cite as:  EWHC 3565 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of KK)
|- and -
|TAVISTOCK AND PORTMAN NHS FOUNDATION TRUST
|- and -
Jenni Richards QC and Jack Anderson (instructed by Hempsons) for the Defendant
The Interested Party was not represented
Hearing date: 28 November 2019
Crown Copyright ©
Mr Justice Supperstone :
i) The Trust breached its duties under s.242 of the National Health Service Act 2006 ("the 2006 Act") and/or its duties under s.2 of the Health Act 2009 ("the 2009 Act") and/or acted in breach of the NHS Constitution in adopting the Protocol without any patient involvement or engagement whatsoever and/or without publishing or otherwise informing patients of the existence of the Protocol (until it adversely affected them);
ii) The Protocol is unlawful by reason of departing from the World Professional Association for Transgender Health ("WPATH") Guidance, which the Trust claims to be following, and is endorsed by both the Secretary of State for Health and NHS England. The WPATH Guidance explicitly provides that prisoners should not be discriminated against, including in relation to their access to GRS on the grounds that they are in prison;
iii) The Protocol is unlawful because it is irrational for the reasons set out below. It seeks to treat all transgender prisoners as having the same risk of complications or regret on the basis of their status as serving prisoners due to an unidentified number of transgender prisoners who underwent GRS and later experienced complications or regrets when: (a) there is no peer-reviewed evidence to support such an approach; (b) that approach is directly contrary to the WPATH Guidance and the peer-reviewed evidence that underpinned that Guidance; (c) the evidence of the factors or categories of persons where there is a higher level of complication or regret does not identify serving prisoners as a higher-risk category; and (d) the commitment to autonomy in the policies means that the risk of complications or regret should be a matter for the patient, not a filter applied by Trust clinicians;
iv) Further, the Protocol or the way in which the Protocol has been operated by the Trust is unlawful in that it appears to permit no exceptions and unlawfully fetters the discretion of the decision maker. This is illustrated by the fact that there has been no assessment as to whether the Claimant had a higher than usual (i.e. about 3%) chance of complications or regret and/or what the chance of such factors was in her case and thus whether the Claimant was a suitable patient to be referred for GRS;
v) The Protocol is unlawful in that it is an unlawful interference with the Claimant's Article 8 rights read with Article 14 ECHR; and
vi) Decisions made not to refer the Claimant for GRS made under the Protocol are unlawful because those decisions have been based on an unlawful Protocol and/or have breached the duty of transparency.
"Despite the Defendant's claim that there was and is in fact no protocol preventing clinical recommendations for gender reassignment surgery where the applicant is serving a prison sentence (unless that person has no prospect of ever being released) it is arguable from the correspondence that there was and if so that was unlawful in one or more of the ways set out in sub-grounds 1-6 of the Detailed Grounds."
"The crucial legal issue in this case is whether it is lawful for clinicians to refuse to make a referral to a surgeon for an appropriate medical procedure for a patient because the clinicians are concerned about the risk of the medical procedure being later seen by the patient themselves as being inappropriate. It is the Claimant's case that, where there is a medical procedure that has potential benefits for a patient and also potential risks, the decision maker concerning this risk is, in law, the patient and not the clinicians." (See also paras 43-48 of the skeleton argument).
The Legal Framework
Gender Recognition Act 2004
"(1) A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of—
(a) living in the other gender, or…"
"(1) In the case of an application under section 1(1)(a), the Panel must grant the application if satisfied that the applicant—
(a) has or has had gender dysphoria,
(b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,
(c) intends to continue to live in the acquired gender until death, and
(d) complies with the requirements imposed by and under section 3."
"(1) An application under section 1(1)(a) must include either—
(a) a report made by a registered medical practitioner practising in the field of gender dysphoria and a report made by another registered medical practitioner (who may, but need not, practise in that field), or
(b) a report made by a registered psychologist practising in that field and a report made by a registered medical practitioner (who may, but need not, practise in that field).
(2) But sub-section (1) is not complied with unless a report required by that sub-section and made by—
(a) a registered medical practitioner, or
(b) a registered psychologist,
practising in the field of gender dysphoria includes details of the diagnosis of the applicant's gender dysphoria.
(3) And sub-section (1) is not complied with in a case where—
(a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or
(b) treatment for that purpose has been prescribed or planned for the applicant, unless at least one of the reports required by that sub-section includes details of it. …"
Responsibilities within the NHS
"Where a person is detained in prison or in other accommodation described in paragraph (2), the Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision to that person as part of the health service of—
(a) community services (including mandatory dental services and sedation services);
(b) secondary care services; and
(c) the services specified in Schedule 4."
"Referrals for surgical intervention must be made by a Lead Clinician from a specialist Gender Dysphoria Clinic that is commissioned by NHS England, with necessary accompanying clinical opinions as described in this service specification.
A decision about an individual's suitability for surgical interventions to alleviate gender dysphoria requires careful assessment and support from a specialist multi-disciplinary team, taking into account medical, psychological, emotional and social issues in combination. As such, and given the potential range of complexities that may be experienced by individuals on the NHS pathway of care and the potential treatments, referrals to the specialist surgical team will not be accepted from other providers or health professionals…"
"Criteria for genital surgery (requires two letters of referral: one from a Lead Professional, the other a similarly qualified and experienced professional not directly involved in the individual's care and able to form an independent opinion; at least one letter of referral must be from a Registered Medical Practitioner with expertise in gender dysphoria)
Feminising genital surgery
- Persistent, well documented gender dysphoria;
- Capacity to make a fully informed decision and to consent for treatment;
- Age 17 years or older;
- If significant medical or mental health concerns are present, they must be well-controlled;
- 12 continuous months of hormone therapy as appropriate to the patient's gender goals (unless the patient has a medical contraindication or is otherwise unable or unwilling to take hormones);
- 12 continuous months of living in a gender role that is congruent with their gender identity; this must not entail a requirement for the individual to perform to externally imposed or arbitrary preconceptions about gender identity and presentation; this requirement is not about qualifying for surgery, but rather preparing and supporting the individual to cope with the profound personal and social consequences of surgery; where individuals can demonstrate that they have been living in their gender role before the referral to the Provider, this must be taken into account."
The WPATH Guidance
"I. Purpose and use of the Standards of Care
… One of the main functions of WPATH is to promote the highest standards of health care for individuals through the articulation of Standards of Care (SOC) for the Health of Transexual, Transgender, and Gender Nonconforming People. …
The Standards of Care are Flexible Clinical Guidelines
The SOC are intended to be flexible in order to meet the diverse health care needs of transsexual, transgender and gender nonconforming people. While flexible, they offer standards for promoting optimal health care and guiding the treatment of people experiencing gender dysphoria…
As for all previous versions of the SOC, the criteria put forth in this document for hormone therapy and surgical treatments for gender dysphoria are clinical guidelines; individual health professionals and programmes may modify them. Clinical departures from the SOC may come about because of a patient's unique anatomic, social or psychological situation; …
VII. Mental Health
Tasks Related to Assessment and Referral
5. If applicable, assess eligibility, prepare, and refer for surgery.
The SOC also provide criteria to guide decisions regarding breast/chest surgery and genital surgery (outlined in section XI and Appendix C). Mental health professionals can help clients who are considering surgery to be both psychologically prepared (for example, has made a fully informed decision with clear and realistic expectations; is ready to receive the service in line with the overall treatment plan; has included family and community as appropriate) and practically prepared (for example, has made an informed choice about a surgeon to perform the procedure; has arranged after care). …
It is important for mental health professionals to recognise that decisions about surgery are first and foremost a client's decisions – as are all decisions regarding health care. However, mental health professionals have a responsibility to encourage, guide and assist clients with making fully informed decisions and becoming adequately prepared. To best support their clients' decisions, mental health professionals need to have functioning working relationships with their clients and sufficient information about them. Clients should receive prompt and attentive evaluation, with the goal of alleviating their gender dysphoria and providing them with appropriate medical services.
Referral for surgery
Surgical treatments for gender dysphoria can be initiated with a referral (one or two, depending on the type of surgery) from a qualified mental health professional. The mental health professional provides documentation – in the chart and/or referral letter – of the patient's personal and treatment history, progress, and eligibility. Mental health professionals who recommend surgery share the ethical and legal responsibility for the decision with the surgeon.
- One referral from a mental health professional is needed for breast/chest surgery…
- Two referrals – from qualified mental health professionals who have independently assessed the patient – are needed for genital surgery…
The recommended content of referral letters for surgery is as follows:
1. The client's general identifying characteristics;
2. Results of the client's psychosocial assessment including any diagnoses;
3. The duration of the mental health professional's relationship with the client, including the type of evaluation and therapy or counselling to date;
4. An explanation that the criteria for surgery have been met, and a brief description of the clinical rationale for supporting the patient's request for surgery;
5. A statement about the fact that informed consent has been obtained from the patient;
6. A statement that the mental health professional is available for co-ordination of care and welcomes a phone call to establish this. …
Sex Reassignment Surgery is Effective and Medically Necessary
Surgery – particularly genital surgery – is often the last and the most considered step in the treatment process for gender dysphoria. While many transsexual, transgender and gender nonconforming individuals find comfort with their gender identity, role, and expression without surgery, for many others surgery is essential and medically necessary to alleviate their gender dysphoria… For the latter group, relief from gender dysphoria cannot be achieved without modification of their primary and/or secondary sex characteristics to establish greater congruence with their gender identity. Moreover, surgery can help patients feel more at ease in the presence of sex partners or in venues such as physicians' offices, swimming pools, or health clubs. In some settings, surgery might reduce risk of harm in the event of arrest or search by police or other authorities.
Follow-up studies have shown an undeniable beneficial effect of sex reassignment surgery on postoperative outcomes such as subjective wellbeing, cosmesis, and sexual function… Additional information on the outcomes of surgical treatments are summarised in Appendix D.
Criteria for Surgeries
Criteria for genital surgery (two referrals)
Criteria for metoidioplasty or phalloplasty in FtM patients and for vaginoplasty in MtF patients:
1. Persistent, well documented gender dysphoria;
2. Capacity to make a fully informed decision and to consent for treatment;
3. Age of majority in a given country;
4. If significant medical or mental health concerns at present, they must be well controlled;
5. 12 continuous months of hormone therapy as appropriate to the patient's gender goals (unless the patient has a medical contraindication or is otherwise unable or unwilling to take hormones);
6. 12 continuous months of living in a gender role that is congruent with their gender identity; …
Rationale for a preoperative, 12 month experience of living in an identity-congruent gender role:
The criterion noted above for some types of genital surgeries – i.e., that patients engage in 12 continuous months of living in a gender role that is congruent with their gender identity – is based on expert clinical consensus that this experience provides ample opportunity for patients to experience and socially adjust in their desired gender role, before undergoing irreversible surgery. As noted in section VII, the social aspects of changing one's gender role are usually challenging – often more so than the physical aspects. Changing gender role can have profound personal and social consequences, and the decision to do so should include an awareness of what the familial, interpersonal, educational, vocational, economic, and legal challenges are likely to be, so that people can function successfully in their gender role. Support from a qualified mental health professional and from peers can be invaluable in ensuring a successful gender role adaptation…
The duration of 12 months allows for a range of different life experiences and events that may occur throughout the year (e.g., family events, holidays, vacations, season-specific work or school experiences). During this time, the patient should present consistently, on a day-to-day basis and across all settings of life, in their desired gender role. This includes coming out to partners, family, friends, and community members (e.g., school, work other settings).
Health professionals should clearly document a patient's experience in the gender role in the medical chart, including the start date of living full time for those who are preparing for genital surgery. In some situations, if needed, health professionals may request verification that this criterion has been fulfilled: They may communicate with individuals who have related to the patient in an identity-congruent gender role, or request documentation of a legal name and/or gender marker change, if applicable.
XIV Applicability of the Standards of Care to People Living in Institutional Environments
The SOC in their entirety apply to all transsexual, transgender, and gender nonconforming people, irrespective of their housing situation. People should not be discriminated against in their access to appropriate health care based on where they live, including institutional environments such as prisons or long-/intermediate-term health care facilities (Brown, 2009). Health care for transsexual, transgender, and gender nonconforming people living in an institutional environment should mirror that which would be available to them if they were living in a non-institutional setting within the same community.
All elements of assessment and treatment as described in the SOC can be provided to people living in institutions (Brown, 2009). Access to these medically necessary treatments should not be denied on the basis of institutionalisation or housing arrangements. If the in-house expertise of health professionals in the direct or indirect employ of the institution does not exist to assess and/or treat people with gender dysphoria, it is appropriate to obtain outside consultation from professionals who are knowledgeable about this specialised area of health care. …
Reasonable accommodations to the institutional environment can be made in the delivery of care consistent with the SOC, if such accommodations do not jeopardise the delivery of medically necessary care to people with gender dysphoria. An example of a reasonable accommodation is the use of injectable hormones, if not medically contraindicated, in an environment where diversion of oral preparations is highly likely (Brown, 2009). Denial of needed changes in gender role or access to treatments, including sex reassignment surgery, on the basis of residence in an institution are not reasonable accommodations under the SOC (Brown 2010).
Evidence for Clinical Outcomes of Therapeutic Approaches
… Since the Standards of Care have been in place, there has been a steady increase in patient satisfaction and decrease in dissatisfaction with the outcome of sex reassignment surgery. …
Similar improvements were found in a Swedish study in which 'almost all patients were satisfied with sex reassignment at 5 years, and 86% were assessed by clinicians at follow up as stable or improved in global functioning' …
… Fewer than 2% of patients expressed regret after therapy…"
Royal College of Psychiatrists, Good Practice guidelines for the assessment and treatment of adults with gender dysphoria (October 2013)
Availability and accessibility of services
"Gender consultants and specialists should recognise the expertise and opinion of colleagues in othr gender identity services when a person transfers from one gender identity service provider and another. The patient may, of course, seek a separate, independent opinion".
Overview of recommended procedure
The Change of Gender Role
"… A verifiable period of time, usually at least 12 months, living in a gender role that is congruent with the gender identity is a requirement for those who seek genital surgery…
The quality of life in the new role is assessed through discussions about the patient's ability to function in areas such as employment, voluntary work, education and training or some other stable, social and domestic lifestyle, and to adopt a gender-appropriate first name …
Genital Reconstructive Surgery
… It is the surgeon's responsibility to determine that a referred patient's physical and mental wellbeing is sufficiently robust to undergo such a major irreversible procedure…"
General Medical Council Guidance
"5. If patients have capacity to make decisions for themselves, a basic model applies:
a. The doctor and patient make an assessment of the patient's condition, taking into account the patient's medical history, views, experience and knowledge.
b. The doctor uses specialist knowledge and experience and clinical judgment, and the patient's views and understanding of their condition, to identify which investigations or treatments are likely to result in overall benefit for the patient. The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.
d. If the patient asks for a treatment the doctor considers would not be of overall benefit to them, the doctor should discuss the issues with the patient and explore the reasons for their request. If, after discussion, the doctor still considers that the treatment will not be of overall benefit to the patient, they do not have to provide the treatment. But they should explain their reasons to the patient, and explain any other options that are available, including the option to seek a second opinion."
The Factual Background
"[The Claimant] stated that he believed that if he was given the chance to change his gender all his offending behaviour would stop. I challenged this, suggesting that he had missed 51 years of his life of being a girl, including the very important period of childhood, and if some explanation of his pull towards images of children (rather than adult women) was related to this, then there may be a risk for future offending in that he might potential want to relive his childhood as a girl, even after gender reassignment. [The Claimant] agreed emphatically that this was the case, "that's so true", …[The Claimant] amended his statement by saying that if his gender was reassigned, he believes that he would be happier "being me", that he "could cope with being me later", and therefore that his risk would be reduced if he was female, as he would not need to resort to his offending in order to vicariously experience womanhood. Nevertheless, we agreed that it would not be appropriate to place all emphasis on gender re-assignment, and it was important for him to continue his therapy."
"In terms of assessment, it was always difficult to assess prisoners particularly those with sexual offences as there are a variety of motivations behind seeking a social change of gender role in prison, quite apart from the straightforward one of a gender identity disorder. In this case this patient clearly has paraphilia as well and the connection between this and the gender identity disorder, although strongly made by the patient, it isn't something which is seen in the majority of other patients, certainly not in terms of convictions or by their report. I think that this patient is keen for things to move forward but I wouldn't wish to do so until we have had, certainly our customary second part of our usual two-part assessment, but probably also a panel meeting as well as seems usually to be the case with patients who are in prison."
"I reflected that it was not unheard of for male to female transitioners to have masochistic fantasies, but that they tended to involve imagining themselves as adult females rather than children. [The Claimant] found it difficult to say for sure why his sexual fantasies were different."
"On the basis of this assessment of the previous correspondence available to me, I would agree that there is perhaps an element of gender dysphoria in [the Claimant's] account of growing up and identifying with female peers. He also maintains the cross-dressing did not include an erotic component. As my colleague Dr Barrett points out however, paraphilia seems also to be present, and I think it is by no means straightforward teasing out the gender identity factors from a sort of fetishization of pre-teen girlhood and a degree of sexual masochism."
"I'm weakly supportive of [the Claimant] starting on hormones but I would wish to have the support of my colleagues, including perhaps one further opinion."
Dr Lorimer copied his letter to Dr Barrett.
"... This patient next has a parole review in 2017 having had one in January this year and interestingly reports that she wasn't requesting release or a move to a category D prison as she has a considerable amount of anxiety about being released from prison and in some senses feels that she is at least in a stable circumstance where she is at the moment.
… From our point of view the thing that matters most now is whether this patient can sustain a female role in an environment other than prison. There have been many prisoners who have done quite well in prison only for things to fall apart quite badly after release and so it is my view that if this patient can be in circumstances where there is what used to be called "town leave" or anything like it, it would be immensely informative both for us and also for the patient. Essentially, it is one thing to manage in a female role in the middle of the afternoon on a prison wing and another thing to manage on a High Street, particularly in circumstances where others do not receive any penalty if they behave in an adverse way.
At this stage it does seem reasonable for a mild amount of androgen blockade to be prescribed for this patient…"
"She quite reasonably asked about processes within this clinic and where things might go in the future, given that she wants all interventions in order to feminise her body. I explained that, before surgery, individuals are expected to live for a sustained period of time (two years) as a female in all areas of their lives, including socially. It is arguable whether being in prison equates to presenting as female in a wider sense, and every set of circumstances has to be considered individually."
"I am pleased to be able to advise you that as things stand anybody in England can be referred to any Gender Identity Clinic in England entirely as they wish and it would seem that this right pertains just as much to prisoners as it does to anybody else. You are indeed correct in saying that this patient has attracted a diagnosis of gender dysphoria from this clinic."
"I can confirm that Dr Barrett would not be able to provide a report to [the Claimant] for her to apply for a GRC. However, [the Claimant] is free to approach another clinician either at this clinic, or another NHS or private Gender Specialist provider."
"… With regard to the progress of your treatment through the clinic, I can confirm that the care pathways of patients who are subject to imprisonment or long-term hospitalisation do differ from the care pathways of other patients. This is due to the diagnostic and therapeutic complexities because of patients' environs, and for this reason surgical referrals are rarely made. Taking this into account, your care pathway has been entirely in line with the clinic's protocol. I can confirm, however, that following your last appointment with Dr Lorimer the use of hormones has been authorised."
"In future, plan will be to access escorted town visits and then unescorted town visits. Will also be looking at future work outside the prison environment."
Under the heading "Mood/Mental Health", Dr Bhatia wrote:
"Generally well, in the review today, no evidence of any psychopathology and no DSH thoughts or intent were present."
"... As has already been stated in my previous letter, the care pathways of patients who are subject to imprisonment do differ from those of other patients due to the diagnostic and therapeutic complexities because of patients' environs, and for this reason surgical referrals are rarely made. Taking this into account your care pathway has been entirely in line with the clinical protocol.
WPATH (World Professional Association for Transgender Health) guidelines make it absolutely clear that at least one year's life in the new gender role must be completed before any genital surgery can be contemplated.
Dr J Barrett, Consultant Psychiatrist/Lead Clinician, confirms that the only circumstances referral for surgery could be considered would be a prisoner's circumstances were such that there was no possibility of their being released. This is not so in your case; indeed, you mention that it has been recommended you move to a more open prison in due course, with a view to being released in the future."
"A copy of your complaint, the provider response and your clinical records were considered by our Specialised Commissioning Department. Having reviewed all of the relevant documentation related to this complaint, they are satisfied that the Provider has carried out a thorough investigation and are satisfied that the Provider has provided explanations and information that are reasonable and appropriate."
"… I explained that, where both surgery and a GRC were concerned, our own worry as clinicians is that individuals in prison are in an artificial environment and it is difficult to say with authority that they are living as themselves/female in the wider world. We have had patients who did so quite comfortably when in prison and, on release, detransitioned back to male. I brought the question up again in the MDT and this remained the consensus.
I would be in favour of [the Claimant's] hormones being optimised. The next step would be to arrange a blood test for serum, lipids, liver function, prolactin, oestradiol and testosterone.
A further appointment has been or will be arranged for some months' time, this time with Dr Barrett to whom she is known."
"… As part of our assessment of your complaint, we have sought the advice of an independent adviser with experience in gender reassignment/gender dysphoria.
Our adviser says that the Trust's decision not to accept that you had been through the RLE whilst in prison was appropriate and in line with these clinical standards.
Our adviser says that it is completely different living within a community than it is in a protective environment like a prison. You would need to live in the preferred role 24 hours a day, continuously for at least one year before the Trust could be confident to refer you for gender reassignment surgery, in line with WPATH's – Standards of Care. This would involve telling relatives, friends, work colleagues and experiencing different life events which may occur throughout the year. Our adviser says that this can be stressful and traumatic, can cause low mood and anxiety, especially the older the person is. Our adviser says that a prison wing does not replicate this sort of environment, as it is a regimental and controlled place. Within prison, a person would not see regularly their friends, family, attend and experience different life events that you would experience outside of prison. Outside of prison is an uncontrolled environment, which prison is not.
Our adviser says that the concerns of a clinician in making a decision for gender reassignment surgery would be whether a person could cope outside of the prison setting for a prolonged period of time. Our advisor says there are cases where people have lived in their preferred gender role in prison (prior to surgery), but when released they have not coped and become depressed, stressed and decided to no longer live in their preferred gender role. This would be taken into consideration by clinicians before referral for irreversible surgery.
Our adviser says this decision by the Trust not to accept that you had been through RLE whilst in prison is not only in line with present clinical standards, but is in keeping with other clinics and peer specialists.
Our adviser also says that the Trust appropriately considered … that the limited circumstances in which referral for surgery could be considered. In your case, our adviser says there is a possibility that you could be released in the foreseeable future.
We are also of the view that the Trust appropriately considered circumstances where RLE could be accepted within a prison setting, i.e. if there was no likelihood of release…"
"She enjoys stable mental health, is resilient, and while thriving in a fully female role for almost a decade, has every intention of doing so, (and is doing so albeit in a restricted way) outside of prison too. It would appear that she has done well with the escorted leave that she has had from prison and we are pleased to hear that in the near future she will be commencing periods of unescorted leave which is likely to give her a fuller insight into the experience of being outside the prison environment whilst in the female role."
Dr Davies stated the plan for the Claimant included "Review again in clinic and for assessment of readiness and eligibility for genital reconstruction surgery to occur when she is living outside of prison as per the MDT discussion".
"[The Claimant's] case was taken for discussion with the multi-disciplinary team. There was acknowledgment of the frustration [the Claimant] has felt being on an IPP and how she feels that it has been difficult to progress towards prison release and life in turn has impacted upon progression with a gender role transition. We appreciate that she is doing everything she can within the confines of prison to be in the female gender role and it was encouraging to see that she has recently been having escorted leave into the town and this appears to be going well. It was noted that while she has been in prison for a number of years now there is likelihood over the coming months that she will have unescorted town leave followed by a parole board hearing in September 2019 after which she is hoping to have test home leave. The MDT reflected that it does seem as if [the Claimant] is robustly in the female gender role within her current environment and living circumstances and indeed is likely that this will continue … into the future. However the MDT is mindful of the importance of there being a different set of pressures and stresses upon an individual on release from prison and living on the outside. Whilst it is to be hoped that she will be able to negotiate these pressures and remain living in the female gender role and consequently continue to pursue having the invasive and irreversible procedure of genital reconstruction surgery the clinic is aware of instances where the transition into living outside of prison has not been an easy one to the extent that the individual feels unable to remain in the female gender role. We respect that this may well not be the case for [the Claimant] and she may well remain in the female gender role and thrive, however to try and ensure that she is ready and eligible for gender reconstruction surgery identity we would wish to see her living outside of the prison environment for a minimum of 12 months period and for there to be two assessments at this clinic in that time. If at that stage the transition has remained robust then she [can] be deemed as eligible for genital reconstruction surgery. Furthermore it appears that she is indeed doing well within prison at this stage it would be very helpful to have information from her offender manager as to how he/she feels things are progressing for her and what the plan is over the coming months with regard to leave and any potential longer term plans for her at the time of release."
The Parties Submission's and Discussion:
"When I use the word protocol in my letters, I was relying on what we were told by the clinicians, in this case principally Dr James Barrett. I did not know whether there was written protocol: I thought the pathway of care was a description of a collective view, of a pattern of events, taking account of what the clinicians thought were the salient factors in this case."
"Even where a person has a clear diagnosis of gender dysphoria or incongruence and has responded well to hormone treatment, they may find that upon undergoing the experience of life in their acquired gender they do not want surgery. The need for "real life experience" is not just about the passage of time. There is a qualitative dimension to the requirement for real-life experience in order to ensure that surgery is appropriate: see page 61 of the WPATH Guidance. For example, we would not refer for surgery somebody who was outside prison who had spent a year stuck in her bedroom, with only an online social life and little contact with the outside world."
"12 Prison is unquestionably a complicating factor. This does not mean we are discriminating against those who are referred from prison: it means that in delivering advice and a service that is appropriate to their needs we have to be more careful in making our assessment because we know that things are likely to be less straightforward for them. …
13… there are several reasons for being very cautious about people who are already in prison when they make a declaration of gender dysphoria for the first time. The first reason is that life in prison is highly regulated and leads to specific adaptions that will be abandoned after their release. … The challenges to which someone is subjected when they are in prison are significant, but they are very different from the challenges and opportunities that present themselves outside and someone who has adapted well in prison may well find it difficult to do so outside. …
Those who are in prison as a result of a sexual offence are additionally complicated and indeed I think they can be some of the most challenging cases we encounter…"
"20 The claimant in this case presented (and continues to present) with a number of complicating factors… First and most obvious she was and is living in prison. As I say, that has meant her experience of living in the female role is artificial. Her experience did not predict the sort of experience that she would encounter outside. But over and above this there were a number of other factors which have made me much more wary. She has had no family with whom she has been in contact for many years and no supportive partner, so that she may well be socially isolated at discharge. She may well find it difficult to get a job. She had come to this view of herself relatively late in life…
22 The fact that she had a history of sexual offences was a seriously complicating factor. People with gender dysphoria feel imprisoned in the wrong body, convinced they are a woman living in a man's body. Women who are living in female bodies do not normally groom children, still less perform oral sexual acts on 12-year-old girls. It is unusual and it made it much harder to accept her history at face value."
"… I have never yet referred a patient for surgery whilst they were full time in prison without real life experience in the community and I do not think I would do so unless the circumstances were exceptional or uncomplicated… This is not because of any written or unwritten protocol operated by the Trust or the clinic, but because it reflects my views (shared, as I understand it, by my colleagues) as to what is likely be the appropriate clinical course. Certainly, I would not have made such a referral in the case of KK because I think the nature of her previous offence and the index offence, as well as the particular characteristics of her condition and circumstances are complications that challenge the opinion that she would derive any benefit."
"Significantly, all of the clinics started out with broadly similar views and these where somewhat refined at that meeting. None of the clinicians present felt that "time served" was all that mattered and everybody agreed that prisoners were particularly complicated and that time in prison would not often constitute proper lived experience. As far as I know, everybody is still proceeding on exactly the same principles. Certainly in the very much more coordinated meetings that we have after the creation of the Association [British Association of Gender Identity Specialists] nobody has expressed a contrary view and all discussion of prisoners continues to have the same worried, cautious theme and emphasis on experience in the real world rather than within a prison setting."
"We have consistently approached [KK's] case in a constructive fashion responding appropriately to her needs as we see them and trying to help her. We have, for example, advised that she should have episodes of town leave. ... From our point of view, matters would benefit if she had experience of living in the community which is why we suggested that periods of escorted and unescorted leave would assist her. We have also, more cautiously, advised that she should have hormonal treatment and that this should be increased. All of these are cautious steps that we have felt able to take. The fact that we have not gone further and recommended her for irreversible surgery is a purely clinical judgment made in her interests as we see them."