As explained in the previous Blog post, the issue of how some NHS Primary Care Trusts (PCTs) address the need for gender identity services has been an issue for many years. In fact, it is ten years ago this month that the Court of Appeal upheld a key case brought by four Lancashire trans women against their local NHS.
The case, "A.D.& G vs North West Lancashire Health Authority" established important case law. The appeal judges agreed with an earlier High Court ruling that
- Gender Reassignment treatment was an appropriate treatment for clinicians to consider recommending;
- that therefore the NHS had to fund this like any other legitimate treatment; and that
- it was unlawful for Health Service managers to operate any kind of policy that amounts to a blanket ban.
Managers have the right to set expenditure priorities, but patient needs must always be considered on their individual merits and the law must be obeyed.
The previous Blog explains how this has still not happened in some cases, and the way that I've pursued this as an issue, in conjunction with Dr Lynne Jones MP (Chair of the Parliamentary Forum on Gender Identity) and the Equality and Human Rights Commission.
Last week the Secretary of State for Health responded to a written Parliamentary Question from Lynne on the continuing post code lottery that patients face, depending on where they live. This was part of an all round strategy to encourage an official line to be taken.
Yesterday, I also received a long and detailed letter from one of the Department of Health's civil servants responsible for Equality matters. I don't propose to reproduce the whole letter, but he says:
...As you know, PCTs are autonomous bodies, responsible for ensuring their own compliance with all relevant legislation, including equality and human rights legislation. They are performance-managed by SHAs, and this performance management role includes PCTs' equality and human rights compliance. It is not therefore the role of DH to intervene in the day to day management of PCTs. DH is fully committed to the equality agenda, however, and takes steps to disseminate knowledge and helpful material to NHS bodies where appropriate, encouraging them to promote equality beyond solely the strict requirements of the law. Our series of equality guides to the NHS are a good example of this, not least "Trans - a practical guide to the NHS" which does, of course, include information and suggestions on commissioning, explaining how the needs of trans people should be taken into account.
We do not accept that DH is required to take any further action at this stage in order to comply with our statutory obligations. We are however always keen to promote the equality agenda, and take stakeholders' concerns seriously. We note the serious concerns that you, and the Parliamentary Forum have raised about the availability of gender identity services in particular areas. Consequently, David Nicholson, NHS Chief Executive, has agreed that the Department should write out to all NHS Chief Executives and their teams, via the weekly NHS Leadership Team bulletin this week, to reiterate the importance of this issue. It will be issued this Thursday 24 September and will consist of the following:
Gender Identity Services
Concerns have been raised over the difficulty that some people experiencing gender dysphoria are encountering in obtaining gender reassignment treatment, with the allegation that some PCTS are effectively operating "blanket bans" on funding such treatment. Please be aware that any such blanket approach is unlawful. Each case must be considered individually, according to clinical need and local prioritisation. Further guidance is available on the DH website and in the Specialised Service Definition (No. 22 - Mental Health Services).
Action: NHS chief executives should ensure that they are not operating "blanket bans" in relation to gender reassignment treatment.
Personally I am sceptical that this action is all that is required. I don't think it's a magic wand. PCTs who are causing concern have a rather more sophisticated approach than simply saying, "We don't provide this". Therefore some could continue to claim they are complying with the law anyway.
The usual approach by such PCTs is to have a policy that ranks assessment and support for gender identity issues as low priority, funded by exception, and to operate Exceptional Case review procedures in a manner which simply fail to admit any case as being such an exception.
This kind of smoke and mirrors has therefore had to be approached by patients being prepared to take their PCT to court. Such PCTs then settle at the last moment, ensuring that there is no resultant case law which could fetter their approach to the next patient in line. This is why the situation has persisted for a full ten years since it was supposedly outlawed.
For these reasons I've written back to the Department of Health and, whilst welcoming this advance, I've recommended a series of actions that they could and should be taking, through the Strategic Health Authorities, as a way of reinforcing the spirit as well as the letter of David Nicholson's message. SHA's are responsible for performance managing PCTs, as DH themselves point out.
In the first instance, however, we all need to see what happens as a result of David Nicholson's direct policy statement. Chief Executives of NHS Trusts know that he's not a man to trifle with.
And maybe this will be the nudge that was required, prompting a more honest and equitable approach. If it isn't however, then I'm ready for the next step .. and the Equality and Human Rights Commission are watching closely too.