Transsexuals win case for NHS funded surgery (BMJ)
Transsexuals win case for NHS funded surgeryClare Dyer, legal correspondent, BMJ Three British transsexuals who were refused sex change operations funded by the NHS have won a landmark High Court ruling that the decision by North West Lancashire Health Authority not to pay for their surgery was “unlawful and irrational.” The ruling came within days of a decision by the same judge, Mr Justice Hidden, that North and East Devon Health Authority acted “unfairly and irrationally” in deciding to close a long stay home for severely disabled people and transfer the responsibility for them to social services. The courts have traditionally been reluctant to interfere in the way health authorities allocate their resources, but their decision making is now coming under closer scrutiny by a new generation of High Court judges. Successful challenges to healthcare rationing are bound to increase from next year, when the Human Rights Act comes into force. The ruling in the transsexuals’ favour does not signal the end of health authorities’ rights to take treatment decisions. But the judge made it clear in both cases that, like any public authority, they must comply with their statutory obligations-in the case of health authorities, to treat the sick-and their decisions must be taken fairly in line with the principles of public law. This means that they must take into account relevant considerations and exclude those which are irrelevant. They must not fetter their discretion by imposing blanket bans-which is what the transsexuals’ lawyers argued the health authority had effectively done. Lawyers have previously launched a number of legal challenges to health authorities’ refusals to fund gender reassignment surgery, but this latest case is the first to go to court. In the other cases the authorities have backed down and agreed to pay for the operations, or the patients have decided to have surgery carried out privately. Mr Justice Hidden said that the health authority had acted unlawfully because it had not taken into consideration that the operation was the “proper treatment for a recognised illness.” The authority is seeking leave to appeal against the ruling, which it said affected decisions on the allocation of funding throughout the NHS. The three “male to female” transsexuals were refused gender reassignment operations costing £7000-9000 ($11200-14400) after it was decided that they had not shown an “overriding clinical need” for treatment. The authority argued that it was entitled to take into account its “scarce resources” when refusing to fund the operations. But the judge said that it was not entitled to operate a policy that interfered with its duty to provide treatment for “the prevention of illness and care of persons suffering an illness.” Vivienne Nathanson, head of science and ethics at the BMA, said: “If the press interpretations of this case are correct, it could mean that there are significant limits on what the NHS can refuse to make available. It could mean that if something is a recognised medical condition with a recognised medical treatment, the NHS has to offer that. The implication is that the NHS could not say that new and expensive treatments would not be available.” Copyright © 1999, British Medical Journal |
