Transgender Claimants Lose Court Challenge Against NHS England’s Waiting Times for Gender Dysphoria Treatment

Two transgender individuals, Eva Echo and Alex Harvey, along with two unnamed young people, have lost their Court of Appeal challenge against NHS England over the prolonged waiting times for gender dysphoria treatment.

Their legal action aimed to address the “extreme” waiting times for a first appointment with a specialist.

The High Court Hearing and Dismissal:

In November 2022, during a High Court hearing, their lawyers argued that NHS England was failing in its duty to ensure that 92% of patients referred for non-urgent care, including gender dysphoria clinics, started appropriate treatment within 18 weeks.

However, Mr. Justice Chamberlain dismissed their claim in January, asserting that the duty to “make arrangements” applied to patients as a whole, rather than individuals.

Appeal and Decision:

Despite their initial setback, the four claimants pursued an appeal earlier this month.

Their lawyers argued that the regulation’s language clearly mandated timely treatment.

However, Lady Justice King, Lord Justice Moylan, and Lord Justice Popplewell ultimately dismissed the appeal.

NHS England’s Function and Waiting Time Obligations:

During the appeal, Lord Justice Popplewell emphasized that NHS England’s function was primarily one of arranging services rather than directly providing them.

While it cannot achieve waiting time standards by providing services, it must make arrangements to ensure others deliver timely treatments.

The judge pointed out that it would be inconsistent to have a strict obligation over waiting times if the service provision was optional.

Policy Considerations and NHS England’s Role:

Lord Justice Popplewell further explained that NHS England must consider various policy factors that could impact waiting times, such as patient safety, treatment outcomes, staff training and working conditions, long-term planning, regional capacity, and infrastructure.

These matters involve discretionary judgments for the executive to make, highlighting the complexity of the issues at hand.

Reactions and Future Goals:

Bekah Sparrow, a legal officer at the Good Law Project, which supported the claimants’ challenge, expressed disappointment with the outcome, reaffirming the organization’s commitment to advocating for a world where all individuals, regardless of gender identity, can access healthcare within reasonable timeframes.

The NHS, on the other hand, welcomed the judgment, expressing its determination to improve gender services and address the waiting lists that have grown due to rising demand and the impact of the COVID-19 pandemic on elective procedures.