R v. North West Lancashire Health Authority, ex parte A, D, & G

North West Lancashire Health Authority (the Authority), the Appellant, appealed against an order quashing the Authority’s decision to refuse gender reassignment treatment to A, D and G, the Respondents.

A, D and G all suffered from “gender identity dysphoria,” or transsexualism. Each had male physical characteristics but female sexual identity. A and G had been assessed as having a clinical need for gender reassignment surgery. D was awaiting assessment of suitability for surgery.

Under the National Health Service Act 1977 the Authority had a duty to promote a comprehensive health service designed to, through the provision of services, improve the physical and mental health of the people of England and Wales, and improve the prevention, diagnosis and treatment of illness. However, the duty to provide services was qualified by the phrase “to such extent as [the Authority] considers necessary to meet all reasonable requirements.” Further, the provision of facilities obliged by the Act was limited to those “[the Authority] considers are appropriate as part of the health service.” The Authority thus had discretion as to how it would allocate its finite budget.

In accordance with this discretion, in 1995, the Authority developed a policy that deprioritized public funding for procedures that it considered to be clinically ineffective or of no beneficial health gain. Gender reassignment treatment was placed in the lowest priority category of treatments, which would not be provided “except in cases of overriding clinical need.” In 1998 the Authority revised this policy and included “appropriateness” as a basis for categorizing treatments. These revisions placed gender reassignment in the same category as cosmetic plastic surgery, tattoo removal, facelifts, hair transplants and reversal of sterilization. The policy then specifically excluded gender reassignment treatment from public funding even in cases where gender identity disorder was diagnosed, a person had adapted to the opposite gender role, and clinical advice on suitability for surgery was given.

An exception to this otherwise blanket refusal to fund gender reassignment treatment, existed in the case of “overriding clinical need” or “exceptional circumstances.” The policy however, gave no indication as to what might amount to such need or circumstances, except perhaps where it could be shown that a patient was suffering from “serious mental illness which the treatment could be expected substantially to improve.” The Court found that the Authority did not accept gender reassignment as a treatment for transsexualism and therefore the exception was “in practice meaningless.”

The Authority refused the three Respondent’s requests to fund gender reassignment treatment, despite psychiatric advice on their suitability, the Respondents’ expressions of distress, and the Respondents’ depression at being able to obtain the treatment only through the National Health Service, and despite, in A’s case, her assertion that the stress had caused her to develop epilepsy. The refusals by the Authority were made on the basis of the 1998 policy.

A, D and G argued that both the decision not to fund their surgeries and the policy itself were irrational. The Authority argued that it had limited financial resources and therefore needed to deprioritize some treatments, in particular, gender reassignment treatment.

The trial judge held that the Authority’s decision to refuse treatment was irrational and quashed the decision of the Authority on the grounds of Wednesbury unreasonableness. The Authority appealed.

The Court held that the Authority’s policy not to fund gender reassignment treatment was irrational, for a number of reasons:

• Although it was accepted by the Authority during the proceedings that transsexualism is an illness, the Authority’s policy did not reflect this and treated it as “an attitude or state of mind which does not warrant medical treatment.”
• The Authority’s apparent exception to its restriction of funding for gender reassignment treatment was actually, in operation and in effect, an indiscriminate ban of the treatment. It did not recognize the possibility of an overriding clinical need for treatment, because it did not accept that gender reassignment was an effective treatment for transsexualism, nor did it consider each case on its individual merits. The Court considered this an unlawful fettering of the Authority’s discretion to allocate resources.
• The belief, reflected in the policy and presented in evidence during the proceedings, that gender reassignment treatment had no proven clinical benefit was contrary to a well-established consensus of medical opinion and literature that asserted it as the only effective treatment. Therefore, it was “not open to a rational health authority simply to determine that a procedure has no proven clinical benefit while giving no indication of why it considers that that is so.”

The Authority’s appeal was dismissed. The Court held that the policy was irrational and quashed the decision not to fund the treatment. The Court remitted the matter back to the Authority to reconsider its policy and the decisions on their individual merits.

The Court also held that the European Convention on Human Rights did not apply to this case because it had not been in force in the United Kingdom at the time the case was filed.

“As I have said, the Authority has acknowledged in its evidence before Hidden J and in its stance on this appeal that transsexualism is an illness. But its recognition of it in its two Policies is at best oblique and lacks conviction. Indeed, both Policies, read together and as a whole, and Dr. Sudell’s elaboration of them strongly indicate that the Authority does not really believe it.” [2000] 1 WLR p. 992.

“In all of this, the court’s only role is to require that such decisions are taken in accordance with equally well-known principles of public law. Those principles include a requirement that the decisions are rationally based upon a proper consideration of the facts. The more important the interest of the citizen that the decision affects, the greater will be the degree of consideration that is required of the decision-maker. A decision that, as is the evidence in this case, seriously affects the citizen’s health will require substantial consideration, and be subject to careful scrutiny by the court as to its rationality. That will particularly be the case in respect of decisions of the nature referred to in the previous paragraph of this judgment, which involve the refusing of any, or any significant, treatment in respect of an identified and substantial medical condition” [2000] 1 WLR p. 997.

“I am therefore driven to the conclusion that the health authority has not demonstrated that degree of rational consideration that can reasonably be expected of it before it decides in effect to give no funding at all to a procedure supported by respectable clinicians and psychiatrists, which is said to be necessary in certain cases to relieve extreme mental distress. The decisions therefore cannot stand and must be reconsidered by the health authority.” [2000] 1 WLR p. 999.

“Health Authorities have to make hard and often invidious decisions in the allocation of avowedly inadequate resources. But those decisions must proceed from proper assessments of the conditions competing for treatment. The decisions in the present cases did not so proceed, and I agree that they and the policies, so far as they relate to transsexualism, require reconsideration.” [2000] 1 WLR p. 1003.