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Case update 13 July 2023

This week in Court: the trans healthcare appeal

Good Law Project

On Tuesday, we were in Court to support the appeal challenging the years-long waits faced by transgender people in the UK when trying to access healthcare.

NHS England has a duty to see 92% of those referred to specialist healthcare services within 18 weeks, yet the average waiting time for young transgender people is nearly three years, and many adults face waits of four years or more.

This week’s appeal was about challenging the court’s earlier findings about whether NHS England is in breach of its statutory obligations by failing to ensure timely specialist treatment for its patients.

Good Law Project supported four appellants – two adults and two young people – to bring this appeal. In court, Thomas de la Mare KC, representing the appellants, argued that the judgment in this case, which interpreted the 18-week duty as a target rather than a hard-edged legal duty, was an error of law.

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The judgment – which was handed down in January of this year – found the regulations imposed a duty to “act with a view to achieving the 18-week target”, rather than an “absolute duty to achieve that standard”.

At the appeal hearing, Thomas de la Mare KC emphasised that this finding did not align with the wording of the provision, which is “clearly, deliberately and unambiguously framed in mandatory language”.

He asked the Court to make a declaration stating that NHS England’s breach of these regulations is unlawful.

While the case arose out of the delays in trans healthcare, the question of whether the NHS is in breach of its duties applies to a number of other health provision services, meaning the outcome of the case could have far-reaching significance.

Campaigner and appellant, Eva Echo, said:

“With the trans community under increased attack from all areas, we need to send a clear message that we will not stop fighting for them. 

“Healthcare is a human right and nobody should have to suffer from years of waiting just to be able to live.”

A decision on the appeal is expected within the coming weeks. 

You can find the appellants’ skeleton argument here and respondent’s skeleton argument here

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