Transsexual denied NHS breast surgery loses appeal

17 March 2011 by Matthew Flinn

R (on the Application of AC) v Bershire West Primary Care Trust [2011] EWCA Civ 247 – Read judgment.

The Court of Appeal has dismissed the appeal of a male-to-female transsexual who was refused NHS funding for breast augmentation surgery.

The appellant, known as AC, had been diagnosed with gender identity disorder (GID) in 1996. As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had not availed herself of.

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…” Her psychiatrist wrote in 2008 that the effect of not having undergone breast enlargement was “mild to moderate distress probably best characterised as an adjustment disorder. 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 augmentation surgery was originally refused in June 2006, and after a lengthy internal appeals process, that decision was confirmed in December 2008. The PCT’s policy for patients with GID stated that gender reassignment surgery (GRS) was a “low priority” due to the limited evidence of its clinical effectiveness. In particular, funding would only be possible for a “non-core” procedure like cosmetic breast surgery in exceptional circumstances. The PCT considered that AC’s case did not present exceptional circumstances.

The challenge to this decision by way of judicial review was the subject of a previous post. The High Court decided that the PCT’s policy was not irrational, having regard to the resource pressures the PCT was facing. Mr Justice Bean also said that the policy was not discriminatory:

The Claimant and the hypothetical comparator are both patients suffering psychological disorder because of inadequate breasts and seeking funding which is hoped will alleviate the disorder. 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.

Finally, the High Court said that AC could not rely on Article 8 right to respect for private and family life, as it does not extend to impose a positive obligation on an authority to provide treatment.

The appeal

Various arguments were renewed on appeal. For example, AC argued that the policies used to determine her decision were themselves unlawful in that it was irrational to classify cosmetic breast surgery as a “non-core” surgical procedure, and that it was irrational to conclude that the clinical effectiveness of GRS was uncertain. These were given short shrift by Court of Appeal. Lord Justice Hooper, giving the only reasoned judgment said:

I understand why the appellant feels aggrieved that the respondent funds the core gender reassignment procedures outlined in the Policy, notwithstanding the absence of evidence of limited clinical effectiveness, but does not also fund breast augmentation surgery for persons like the appellant (given, in particular, that there is no professional consensus on the classification of core and non-core procedures for gender reassignment). But the answer in law to that feeling is that the respondent, in exercising its statutory responsibilities, has to make very difficult choices as to what procedures to fund and not to fund and the choice made in this case is not irrational.

Quite simply, he said, “this conclusion disposes of the case”.

However, he then went on to address the arguments presented to the court on the issue of discrimination, which arose because of the way in which the PCT defended its policy. The PCT had said that to grant funding to transsexual women like AC could result in discriminating against women who were born female, but nevertheless dissatisfied with the size of their breasts. This was because such women were seen as having the same “health status impairment associated with their small breasts”. As noted above, this reasoning was adopted by Bean J in the High Court.

AC argued that this was an unlawful reason for refusing to fund her breast augmentation surgery, as it involved improperly treating different cases in the same way i.e. it was discriminatory. She argued that male-to-female transsexuals are in a materially different situation: for them breast augmentation is not a matter of simply improving one’s body image as a woman, it is an important part of the transformation into actually being a woman. Essentially, it is a matter of identity for transsexuals, whereas for congenital females it is a matter of appearance.

The Court of Appeal ultimately decided that discrimination was not proved in this case. The question was essentially what the “relevant characteristic” was when deciding whether to treat particular cases alike or differently in respect of access to breast enlargement surgery.

AC’s point of view was that the relevant characteristic to focus on was that for transsexuals dysphoria was an inherent part of the medical condition from which they were suffering, while in congenital females it was purely adventitious.

The PCT’s point of view was that the relevant characteristic was the fact that at the time of presentation both a transsexual female and a congenital female had the same reason for seeking the same treatment. In the context of making difficult decisions and judgments about treatments and the use of resources, the PCT was entitled to take this view.

In light of this conclusion, the Court of Appeal concluded that it did not need to consider other specific challenges advanced under the Sex Discrimination At 1975, and Articles 8 (private and family life) and 14 (anti-discrimination) of the European Convention of Human Rights.

A question of resources

There are two interesting points to note about this case. Firstly, the Court of Appeal did not interfere with the finding of Mr Justice Bean in the High Court that the law relating to Article 8 did not impose a positive obligation to provide medical treatment. Secondly, as was pointed out in the previous post on this case, the main factor driving the court’s decision was that it was not inclined to make a decision which would effectively determine the way that NHS had to allocate its resources which, along with those of other public services, are coming under increasing pressure.

This concept of deferring to the decision of an administrative decision-maker is frequently applied when human rights infringements are alleged in respect of areas of political sensitivity. However, that usually occurs in situations where the court has found that there has been an interference with a human right, and it then addresses whether or not that interference was in pursuit of a legitimate aim, and proportionate to that aim. In particular, in situations where questions of resource allocation are in play, the court will frequently acknowledge that administrative decision makers may be best placed to determine whether a particular interference is necessary and justified.

In this case, the concept of deference played a slightly different role, and led to the finding that there had been no discrimination (and thus no breach of any right not to be discriminated against) in the first place. In order to found a discrimination claim, it is necessary to identify a relevant characteristic which determines the way people are treated. That characteristic should either require that two particular people are treated in the same way, or treated differently. Here, the very identification of that characteristic required an application of clinical judgment; adopting AC’s submissions that it was crucial that her desire for larger breasts had a clinically different origin from the desire of a congenital female would have required the court, rather than the PCT, to make that judgment.

Whilst the courts are periodically berated for judicial activism and for trespassing upon the authority of democratically elected law-makers, they continue to profess hesitancy when it comes to interfering in decisions involving the use of specialist expertise, and the allocation of resources. Both factors featured heavily in the present case, and in light of that the Court of Appeal’s decision, whilst unfortunate for AC, is not surprising.

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