Transsexual’s NHS breast enlargement claim rejected
27 May 2010
AC v Berkshire West Primary Care Trust  EWHC 1162 (Admin) (25 May 2010) – Read Judgment
An NHS Trust acted rationally in refusing to provide breast enlargement surgery to a transsexual, the High Court has ruled, even though there was credible medical evidence that the surgery would have been beneficial. The case raises issues as to when treatment can truly be said to be “necessary” in light of increasingly tight purse strings, and whether NHS policy could be discriminatory towards transsexuals.
The Claimant, AC, had been diagnosed with gender identity disorder (GID). As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had refused.
As part of her treatment, AC was given hormone therapy but was disappointed with her subsequent breast development. Her GP wrote in 2006 that AC had found that her lack of breasts made it “much more difficult for her to feel feminine. It tends to get her down although she does not have a history of significant depression… Whilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.”
Her request for breast enlargement surgery was refused. The PCT’s policy for patients with GID stated that “cosmetic” breast surgery was a low priority, as there was “no evidence that [it] will resolve psychological symptoms, only which arise from the size and or shape of the breast.” However, this was subject to the proviso that in “exceptional circumstances” the surgery would be permitted. It considered that AC’s were not exceptional circumstances.
Resources versus necessity
As this was a judicial review, in order to succeed, AC would have to show that the PCT’s policy was irrational. This is a high bar to reach, and it is not enough to merely show that the policy was unreasonable or unfair. In making his assessment, the judge had to weigh up the resources available to the NHS versus the necessity of the treatment; a judgment the courts are increasingly being asked to make. A notable recent example was the Herceptin case, where the courts ruled that the NHS must provide an expensive new treatment for breast cancer.
The first question for the judge was whether the treatment was clinically effective. Unfortunately, the medical evidence only served to make the situation more complicated. For AC, a leading specialist in GID gave evidence that augmentation surgery was “a clinically effective treatment for the patient diagnosed with GID” which “provides considerable medical benefit to the patient.” For the PCT, an NHS consultancy stated that “All previous systematic reviewers of the literature conclude that there is a lack of robust evidence to judge the effectiveness of Gender Reassignment Surgery for transsexuals.”
On the other side of the scales were, as always, NHS resources. The judge observed that NHS budgets are under severe pressure from two factors; increased longevity and the development of new and expensive drugs and surgical procedures. He approved Lord Bingham’s comments in R v Cambridge Health Authority ex parte B  1 WLR 898, when he stated:
I have no doubt that in a perfect world any treatment which a patient… sought would be provided if doctors were willing to give it, no matter how much it costs… It would however, in my view, be shutting one’s eyes to the real world… It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet.
No discrimination towards transsexuals
AC argued that the PCT’s policy was discriminatory against transsexuals. The judge rejected this, finding that “If the Claimant were to be awarded funding and a natal woman with moderate symptoms were not, the PCT would be open to the obvious charge that it was discriminating against the natal woman by treating like cases differently”.
He continued that he was “satisfied that the Defendants had due regard to the need to eliminate discrimination against transsexuals and to the need to promote equality of opportunity between transsexuals and non-transsexuals. Their gender dysphoria policy was drafted with great care and after extensive consultation.”
No human right to treatment
In previous cases, the courts have generally found that Article 8, the right to family life, does not provide a positive obligation for an authority to provide treatment. The judge saw no reason to depart from this, even in light of Goodwin v UK (2002), an important decision for transsexual rights in which the European Court of Human Rights enforced the rights of transsexuals to marry the opposite sex to their adopted gender.
Ultimately, the judge found that the “exceptional circumstances” proviso in the PCT’s policy was reasonable, and that AC’s case simply did not represent exceptional enough circumstances. He found that AC’s psychological symptoms were not severe enough to trigger the requirements, and that as such the PCT were complying with the law in refusing the surgery.
Sign of things to come?
This case saw the courts dipping into a debate which a public health service has to grapple with regularly; whether to provide certain kinds of expensive treatment in the face of limited resources. In AC’s case, the court were no more sympathetic to her predicament than the PCT, although at no point was the treatment she requested dismissed as trivial or as having no possible medical benefit. She simply ended up, marginally, on the wrong side of the balancing exercise.
NHS budget strings are likely to tighten in coming years and this will be compounded by the burgeoning number of expensive new medical procedures. It seems likely, therefore, that these types of claims will become more common, and increasingly difficult to decide.