Update: NHS Funding for Gender Reassignment Treatments following the “North West Lancs” case

PFC briefing, 1999

What to do if your GP or Health Authority refuses to fund gender reassignment treatment: supplementary briefing note from Press For Change, 1998.

NOTE: This document should be read in conjunction with our earlier briefing What to do if refused funding for gender reassignment (PFC, 1998).

1. On 21st December 1998 the High Court ruled (Hidden J) that NW Lancashire Health Authority’s decision to refuse treatment for three transsexual women (A, D and G) was unlawful.  Stephanie Harrison QC acted for the plaintiffs. This is the first time such a case has come to court.  The Health Authority is appealing, but we are fairly confident the judgement will stand.  In the meantime, people shouldn’t be afraid to use it!

2. Because the case is going to appeal, the full text of the judgement has not yet been published.  Some Health Authorities and lawyers do appear to be aware of it, but don’t assume they are - point it out.

3. The case concerned a decision by NW Lancs Health Authority to refuse to undertake, or make an extra-contractual referral for (i.e. referral to a GID clinic outside the area - Charing Cross), hormone therapy or gender reassignment surgery for three patients in their area “with the illness of gender identity disorder”.

4. The Health Authority had introduced a policy in 1995 which classified certain “medical procedures of no beneficial health gain or no proven benefit” as procedures they would not fund, unless there was an “overriding clinical need”.  Examples given were gender reassignment surgery and reversal of sterilisation.  In 1998 a further policy stressed the need to confirm the cost effectiveness and appropriateness of various treatments before they were purchased.  Based on these policies, the Health Authority had decided to offer only psycho-therapy to transsexual patients (to reconcile them with their assigned sex), and refused to purchase any drug treatment or surgery or to make any extra-contractual referrals.

5. At the judicial review, the Court did not question clinical judgements or allocation of resources from a tight budget - it sought to establish whether such a policy was lawful.

6. It was accepted that “GID” is a recognised illness (it is listed as such in the Diagnostic and Statistical Manual) and that under the NHS Act 1977 the Health Authority therefore had a duty to prevent, diagnose and treat the condition.  But the Health Authority believed that one method of meeting its obligation and of spending a limited budget effectively would be to identify inappropriate treatments which had no proven medical benefit i.e. hormonal and surgical treatment for transsexual patients.

7. The Court found this policy was unlawful on the following grounds:

1. To require the applicants to suffer from a pathological psychiatric disorder before treating them was irrational, as it would preclude surgery, for which there is a precondition of mental stability.
2. The Health Authority was unable to define what it would consider to be “an overriding clinical need”, and its policies actually went beyond simple rationing of gender reassignment treatment - they constituted in effect a blanket ban.

The Court said that the Health Authority had failed to consider what constituted GID, and what its proper treatment should have been.  There was a lack of understanding of transsexualism and its policies were based on a discredited and outmoded view of transsexualism which was at odds with accepted clinical opinion. Refusal to fund the treatments which are usually accepted as appropriate for transsexualism was a policy devised without adequate research and based on an incorrect idea that gender reassignment surgery is “cosmetic” surgery - “a preference for an enhanced body image”.

8. The Court noted that a number of other Health Authorities currently have similar policies.

9. The key issues to be aware of are as follows:

1. Transsexualism/GID was accepted as an illness.  Whilst many trans people would take issue with this as a general label, we are working within the context of the NHS Act, and unless transsexualism is recognised as an illness or disorder (with an appropriate cure) treatment is not fundable.
2. The appropriate treatment for people with transsexualism/GID was accepted as being hormone therapy and surgery (not therapy to persuade the patient out of her/his gender identity).
3. Rationing of limited resources was not the issue.  If NW Lancs had been able to show that in some cases it did fund hormone therapy and gender reassignment surgery, and had a fair method of deciding when to do so, this would be an acceptable policy. (Nottingham Health Authority has such a policy).
4. The principle accepted was that if a particular treatment is recommended by clinicians for a patient, it cannot be refused full stop because of a “blanket ban” on such a treatment.  The case has not decided what would constitute a “reasonable delay” in providing a treatment in the context of limited resources.  However there are clauses within the Patients’ Charter which explain how long people should expect to wait for specialist treatments.

10. The judgement clearly has wider implications i.e. the principles on which the case was decided could refer to many other treatments, not just transsexualism.  We may see further cases brought seeking to use this decision to challenge other blanket bans, and Health Authorities with lists of treatments they will not fund are probably anxious. Whilst the cost implications of providing treatment for every transsexual person in the UK are minimal (we calculated at most a penny or two out of every thousand pounds of the NHS budget), the cost of lifting all blanket bans would presumably be considerable (other wise why impose them in the first place?).

It is likely that such lists have been drawn up on the back of an envelope to include anything the fund holder thinks the tabloids wouldn’t like i.e. vaguely classifiable as a “luxury” or as “not life threatening or terribly painful”.  If Health Authorities are forced to justify such lists we could see a major rethink on what is a “cost effective” and “appropriate” treatment - indeed some Health Authorities have already started to evaluate standard medical and surgical procedures on their actual “positive impact” and percentage success rate.  If such judgements were to be made on a rational measurable basis, we would of course see treatment for gender reassignment shooting up as a priority (very effective, economical, major permanent benefit to patient).  On the other hand some “popular” treatments would have low priority, for example perhaps late interventions in cancers, some organ transplants, efforts to keep alive very premature babies etc (poor success rate, high costs, dubious and temporary benefit to patient).  This illustrates the important point that medical decisions are heavily influenced by the social and political context, and we must not underestimate this in lobbying for better medical resources for trans people.

AKW 04/99