COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE HOOPER
| R (on the application of AC)
|- and -
|Berkshire West Primary Care Trust
Equality and Human Rights Commission
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James Goudie QC & David Lock (instructed by Bevan Brittan Solicitors) for the Respondent
Ms Mountfield QC (in writing only) for the Intervenor
Hearing date: 2 March 2011
Crown Copyright ©
Lord Justice Hooper:
Without adequate breast development [the appellant's] gender dysphoria will not be adequately treated and therefore she will continue to suffer from her primary psychiatric illness i.e. Gender Identity Disorder as well as any secondary psychiatric conditions attributed to the refusal of treatment, such as adjustment disorder or depression. She will therefore continue to suffer the psychological consequences of untreated gender dysphoria and in my view will and has continued to need psychological support [for] this.
I have exceptional circumstances in that I haven't developed proper breasts. For a male to female transsexual to have breasts is a very natural and moral request. It is also necessary to establish feminisation in my journey from male to female. My life will be one of turmoil if this is denied. Not fully knowing what or who I am and neither will those around me in every day life.
Hormones also make one impotent, cause the penis to shrink and libido diminishes to nil. Hormones haven't changed my form, my body is still recognisably male after 11 years of treatment…I have to carry on as I am, unable to be a woman, and hopeless sexually as a man.
She has recently been seen there in clinic and her psychiatrist feels that she would be a good candidate for augmentation mammoplasty. [AC] has always found her lack of breasts difficult, finding it makes 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.
She is not looking for full sex-reassignment surgery but for breast augmentation.
She feels that her lack of breasts makes her feel particularly unfeminine and believes that this type of surgery would have the most effect on improving her femininity.
I do think that it would be helpful if she could be offered surgery in order to correct breast asymmetry. As somebody who has changed her gender role, she is considerably more sensitive around issues of physical appearance than most, and clearly adequate breasts are something which are important in producing an effective impression of the femininity she psychologically experiences. I strongly believe that such surgery would be likely to improve her state of mind.
12. When the application for NHS funding was originally made there was no suggestion that there was a serious mental health or psychological element to the application or that the requested operation was an essential part of the gender transformation process for the Appellant (or for GID patients generally). The application for funding was substantially justified on the basis that it would enable the Appellant to feel more feminine.
The effect of her not having undergone an augmentation mammoplasty is one of chronic 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.
I have to say that this self consciousness has become quite marked as time has gone on, if for no other reason that the patient has become increasingly focused upon this issue and has become evermore psychologically invested in achieving the funding for an augmentation mammoplasty.
Gender Dysphoria is a psychological state whereby a person demonstrates dissatisfaction with their biological sex, and requests sex reassignment. Management can be lengthy and expensive and comprises assessment, psychotherapy, real life experience, hormonal therapy and surgery.
- There is a clear consensus that equitable access to services for initial diagnostic assessment, hormone therapy and surgery is essential for those patients fulfilling the Harry Benjamin International Gender Dysphoria Association criteria [which the appellant fulfills].
- There is no professional consensus on the classification of core and non-core procedures for gender reassignment.
- There is limited evidence to suggest that gender reassignment surgery is effective. Much of the evidence in favour of or against gender reassignment surgery is of poor quality due to lack of standardised criteria for assessment and management.
- For most gender reassignment surgical (GRS) procedures, several techniques have been described with varying degrees of complications and patient satisfaction reported. In view of the heterogeneity of surgical techniques, outcomes, complications and patient choice, it is not appropriate to recommend any particular technique or procedure for all patients.
- There is no published evidence on the cost-effectiveness of gender reassignment surgery.
Core surgical procedures for male to female patients (MtF) are Penectomy, Orchidectomy, Vaginoplasty (including hair removal essential for vaginoplasty), Clitoroplasty, Labiaplasty. Core surgical procedures for female to male (FtM) patients are Mastectomy, Hysterectomy, Salpingo-Oophorectomy, Metoidioplasty, Phalloplasty, Urethroplasty, Scrotoplasty and placement of testicular prostheses.
The Priorities Forum recommends that:
1. Patients should be referred initially to a local NHS Consultant Psychiatrist.
2. Access to a specialist tertiary NHS commissioned Gender Identity Clinic for assessment, should be via tertiary referral from the local NHS Consultant Psychiatrist.
3. Specialist psychological support and hormonal therapy will be funded provided the above criteria have been fulfilled.
4. GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not routinely funded. Funding will be approved for core Gender Reassignment Surgery if the patient fulfils the current International Harry Benjamin Criteria and has been recommended as suitable for surgery by a specialist NHS Gender Identity Clinic.
5. Cosmetic surgery and other non-core procedures such as breast surgery, larynx reshaping, rhinoplasty, hair removal, jaw reduction and waist liposuction should not be considered as a core part of GRS. Patients who wish to be considered for those treatments should be considered in accordance with the existing Berkshire Priorities Committee policies on Cosmetic Breast Surgery (No. 7) and Cosmetic Procedures (No. 9).
Exceptional circumstances may be considered where there is evidence of significant health impairment and there is also evidence of the intervention improving health status.
22. There is no agreement between the Claimant's and Defendants' advisers as to the clinical effectiveness of breast augmentation surgery, whether for male to female transsexuals or for natal women. Professor Richard Green, a leading specialist in the field of GID, regards augmentation surgery as "a clinically effective treatment for the patient diagnosed with GID" which "provides considerable medical benefit to the patient." In his opinion it is "integral to a comprehensive treatment program and is not simply cosmetic." On the other hand Bazian Limited, an NHS consultancy instructed by the Defendants to review the evidence on this subject in 2009, found as follows:
"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. The PSU's evidence synthesis had similarly found an "absence of reliable evidence" that breast augmentation was clinically effective for the long term resolution of poor body self image, and associated psychological difficulties, for either biological women or trans-females." ...
23. I therefore cannot accept that there is, as Ms. Harrison submits, a "general medical consensus" on this subject, nor that the Defendants have acted irrationally in taking the view that the clinical effectiveness of the treatment is uncertain.
When deciding whether to fund breast augmentation surgery for a transfemale who has undergone a course of hormone therapy which has not led to a 'satisfactory' augmentation of the breasts, the transfemale must be excluded from the Gender Dysphoria Policy because, not to exclude her, could result in discriminating against a natal female similarly dissatisfied with the size of her breasts.
- Non-discrimination (and other policies) requires the patient to be treated as female now.
- Absence of breast tissue occurs in congenitally born females (as well as transfemales who have not responded to hormone therapy).
- Breast augmentation is a cosmetic procedure
- Both congenital females and transfemales need to demonstrate that there is a need for surgery in line with policy on cosmetic breast surgery.
- The key point here is that a transfemale with no/minimal breast tissue should have equal access to breast augmentation surgery to a congenital female with no/minimal breast tissue. There was a consensus that transfemales should not have automatic advantage (or disadvantage) to congenital females when applying for a cosmetic procedure
21. ... We were concerned, in accordance with our ethical framework, to ensure that the PCTs were considering fairly both transfemales and biological females who presented with the same health status impairment associated with their small breasts. The PSU is aware that there is a considerable unmet demand amongst women (and some men) for aesthetic procedures including augmentation mammoplasty. If the PCT were to routinely fund this augmentation mammoplasty for transfemales in order to afford them greater satisfaction about their body image, and thus seek to alleviate perceived psychological distress, the PCT would be breaching the equity principles clearly identified in the South Central Ethical Framework unless it made the same treatment available to other women with similar health status impairment. Such a policy would require a significant investment of resources and an equally significant "disinvestment" from other groups of patients. ...
... the Committee decided that eligibility criteria for all other types of cosmetic surgery, including breast augmentation for transfemales, should not differentiate between transgender patients and other patients. ... the committee recognised that there was demand amongst transfemales for breast augmentation. The committee recognised that that there were many women who were concerned about their body shape and had similar psychological effects. The issues for the Priorities Committee were:
a. Whether there was sufficient good quality evidence to justify funding for this procedure in either group being a priority; and
b. Whether there was any proper basis to distinguish between the transfemales and other women in making this surgery available as part of the NHS.
The Committee decided, as part of its deliberations about the relative priority of cosmetic surgery procedures that there was not sufficient good quality evidence to justify making funding for this procedure a priority. We also decided that it was our policy that we would not discriminate between transfemales and other women in granting access to this procedure. (Emphasis added)
The Equality and Human Rights Commission identified this crucial difference in their written submissions ... as follows:
So the difference between a transgendered woman and a natal woman in receiving breast augmentation surgery in case of limited breast growth is the difference between being perceived as a woman at all and a different issue of disliking one's shape as a woman.
i. Breast augmentation for the transfemale patient is a recognised medical treatment for a recognised medical condition and an illness namely gender identity disorder which is itself treated as a serious psychological disorder.
ii. In a born female breast augmentation is sought as a result of dissatisfaction with body image and it is a cosmetic procedure which is not recognised as i) illness and ii) an effective medical treatment. There is no expert medical consensus that supports either proposition distinguishing it from the position of trans patients recommend for the same surgery.
iii. In the transsexual patient breast augmentation is part of a process of gender reassignment (creation of female physical characteristics) which, in the carefully selected patient, is the only recognised effective treatment.
iv. Breast augmentation has no role as gender reassignment in the biological female since it is simply unnecessary.
v. A congruent female psychological, social and physical appearance is essential for the transsexual's ability to function as a female in society and is intrinsic to the personal identity of the trans person.
vi. No issue of a congruent personal identity arises in a biologically formed female.
When one is addressing the need for treatment to change shape, one cannot rationally compare a transgender woman with a natal woman: the very issue which is being raised is inherent in the gender dysphoria which leads to the discrimination. Only a transgendered woman needs breasts to address the very condition from which she suffers and which only transsexuals suffer, of living in a body which is not that of the gender which they feel themselves to be.
50. It is now well recognised that impediments to the transsexual achieving a congruent physical, psychological, social and legal status and identity engages and frequently breaches Article 8 ECHR in the absence of strong justification for the interference.
(ii) To require a trans patient to have an additional severe and debilitating mental illness over and above the gender identity disorder as a condition for funding clinically recommended breast augmentation as part of gender reassignment treatment, is a breach of Article 8 ECHR as constituting a disproportionate interference with the right to personal identity and private life.
(iii) To require trans patients to demonstrate by way of clinically verifiable studies that breast augmentation when clinically recommended as part of gender reassignment treatment is an effective treatment, is to place a disproportionate burden on the Applicant in breach of Article 8 ECHR. Van Kuck v Germany (2003) 37 EHRR 51.
…that, in deciding which treatments to designate as "core" and "non-core" the PCT sought to achieve parity between GID patients and natal women with similar level of health status impairment. Thus it is accepted that part of the reasoning used by the PCT to refuse to fund breast augmentations for GID patients was that natal women with a similar level of health status impairment were refused such treatment.
The court is invited to note that the comparison was not with natal women who wanted breast augmentation for aesthetic purposes but natal women who desired the operation "with similar health status impairment".
…the legal issue on treating unalike cases alike must be whether the PCT, acting through the Berkshire Priorities Committee, could rationally have taken the decision that there was not a "valid reason" to treat transsexual women and natal women differently when seeking breast augmentation operations.
a. The alleged "exceptional significance" of a breast augmentation operation for MtF transsexuals was not identified by the PCT's researches at the time that the PCT did its research into GID;
b. The alleged "exceptional significance" of a breast augmentation operation was not brought to the attention of the PCT when it consulted the leading experts in the field. It may be the view of the EHRC and the Appellant that a breast augmentation operation for a MtF transsexual has an exceptional significance but there was no clear consensus leading to that conclusion as a result of the PCT's consultation;
c. The argument that natal women and GID patients must be treated differently in the provision of breast augmentation surgery is specifically rejected by a psychiatrist providing GID services, Dr Christopher Bass ... ;
d. Once this issue was raised, the PCT commissioned research by a firm specialising in high quality evidence based analysis, Bazian, into the evidence around breast augmentation operations. This does not support the case advanced by the Appellant and the EHRC that a breast augmentation has an "exceptional significance" or that the operation is clinically effective to advance the health status by meeting such a condition.
both the Psychiatrist and GP letters were more "robust" in their position statements than previously received, both letters reiterated the case history and did not provide new evidence.
A member :
asked how the trust would manage funding issues if we accepted the principle that potential distress and future possibilities of a negative reaction due to denial of service was a rationale for prioritising care and funding. All agreed that this position was not an acceptable basis for decision making.
[AC] continues to have "chronic mild to moderate distress" due to a denial of wish to have procedure.
It follows that a patient who wishes to obtain funding of established policies is required to show three things:
a. That the patient's case constitutes exceptional circumstances;
b. That there is evidence of significant health benefit from the requested treatment; and
c. There is evidence of the intervention improving health status.
The minutes of the meeting have confirmed that the committee's assessment was that your client had not demonstrated exceptional circumstances. As this is a threshold condition to considering the other two limbs of the test it follows that the Case Review Committee was not entitled to proceed to consider whether funding for your client would be justified under the two remaining limbs of the test.
Exceptional circumstances may be considered where there is evidence of significant health impairment and there is also evidence of the intervention improving health status.
Master of the Rolls