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Case update 28 October 2021

Trans healthcare update: We’re issuing proceedings

We are now preparing to issue judicial review proceedings against NHS England over long-standing, lengthy and unlawful delays to meeting the trans community’s healthcare needs.

The NHS is in breach of regulations 45, 47 and 48 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. NHS England accepts it is in breach, and says the issue is not funding constraints. It also claims to have done everything possible. 

We do not accept this analysis. Trans people have heard this story repeatedly, the situation continues to deteriorate, and the hostility on the part of the NHS to trans healthcare speaks for itself. We intend to put the matter before a judge to decide.

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Separately, Good Law Project is also preparing to issue judicial review proceedings against NHS England for its unlawful service specification for healthcare provision for trans children. 

Within an hour of the Bell decision being handed down in the Divisional Court in December 2020, the NHS halted all referrals to endocrinology without a court order. 

But when the Court of Appeal overruled Bell in September 2021, NHS England refused to update their rules for service provision until we sent our pre-action letter, when they finally amended it. But they did so in a way that we think is still unlawful: firstly, because they require treatment decisions made by qualified specialists to be reviewed by a Multi-Professional Review Group and secondly, because parental consent is still required.

We have written back to NHS England pointing out that the first of those two limitations is discriminatory. Why should the treatment of trans people by qualified specialists be subject to review, while the treatment of cis people is not? The process they’ve put in place also adds substantially to the delays trans people face for treatment. 

As the letter says:

“Our clients remain dismayed at the hurdles that NHS England is continuing to put in place to allow trans children to be assessed by an endocrinologist for puberty blockers. This hurdles exist (a) after clinical professionals at the Tavistock have reached the view that a trans child should be referred to an endocrinologist to consider prescribing puberty blockers and (b) prior to the endocrinologist taking a decision whether it is clinically appropriate for a child to be prescribed puberty blockers. These are hurdles which directly interfere with the clinical relationship between the child’s clinicians and the child. They are not replicated elsewhere within the NHS and cannot be justified solely for trans children.”

Requiring parental consent is unlawful too. It ignores the decision in Bell in the Court of Appeal, it ignores the decision of Gillick in the House of Lords, and it ignores the rights of competent young people to make decisions about their own lives. 

We have, without optimism, given the NHS 14 days to correct their service specification but we are also preparing to issue proceedings.

Standing back, NHS England’s stance on trans healthcare seems increasingly to follow the “political” rhetoric rather than treatment realities. Treatment protocols for trans adolescents are well-established and have existed for decades. Providing puberty blockers to delay puberty is a reversible form of medical treatment which creates time to reflect before any prescription of cross-sex hormones. 

Denying puberty blockers, whether through deliberate decision or neglect, results in inevitable changes to a trans young person’s body. Some of these changes are only reversible with serious surgery later in life, and some of them are entirely irreversible. 

Puberty blockers pause those changes and create space for the young person to reflect. Denying them to a young trans person is arguably an act of cruelty.

Trans people need healthcare from the NHS – not politics.

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