Judicial Review of the NHS provision of treatment for transgender adults and children

What will this achieve if 'won' - and why are the Good Law Project prepared to assert as truth matters which are highly controversial and unsupported by evidence?

Too Long: Didn’t read

The Good Law Project and others argue that the NHS is acting unlawfully as it is not providing treatment quickly enough for transgender patients. The court gave permission for the judicial review to proceed on the basis that the grounds passed the ‘low threshold’ test of arguability. But the court also noted the futility of applying for a declaratory remedy i.e. the court agreeing that the NHS has broken the law, when the NHS is already doing all it could to deal with delays. However, the claimants argued that putting a ‘mark’ on the unlawful breaches would spur the NHS to take ‘proportionate’ steps to comply.

I am concerned that this action is going to be given a weight it does not deserve, with many thinking that it will mean, if ‘won’ that the NHS is compelled to provide puberty blockers or cross sex hormones to all who ask for them within 18 weeks. The ‘statement of truth’ from the GLP director Jolyon Maugham sets out a number of controversial and unevidenced matters as true. This raises again the question marks over how the Good Law Project pushes its fund raising, how donors are properly informed before parting with their cash and to what extent this is driven as an individual vanity project .

On May 11th 2022 the Good Law Project announced that the court had given permission for its judicial review to proceed. There are six claimants; two adults, two children, Gendered Intelligence and the Good Law Project. The NHS is the defendant and the ‘interested parties’ are four NHS Trusts, including the Tavistock.

‘Judicial review’ is a way of challenging a decision made by a public body. The court will examine what the public body did - or failed to do - and check that it acted lawfully. As the Public Law Project notes, it is expensive, complex and also risky

… even if the court concludes that a public body has acted unlawfully, it may decide that it will not set aside the decision being challenged or make any other order to give the claimant what he or she wants. This is because the remedies possible in judicial review are always at the court’s discretion, and are not automatically applied where a claimant has been successful. The reason for this is that judicial review cases are always concerned with public administration. As well as doing justice to the individual claimant, the courts will take care not do anything that makes it impossible for the public body to do its job for the public good.

With regard to remedies, the court can overturn the decision being challenged (a quashing order), stop a public body from doing something unlawful (a prohibiting order), make a public body do something (a mandatory order) or simply make a declaration setting out what the law is.

There is no guarantee you will get what you want. As the Public Law Project explains

The court will not normally re-take the public body’s decision itself, even if you win your judicial review. Instead, the court will normally order the public body to reconsider its decision, this time in accordance with the law that the court has now made clear. It may be possible in those circumstances for the public body to reach the same decision but this time by a lawful procedure. So it is possible that even if you win a judicial review, you may still not get what you want.

In this case, the claimants are apparently applying only for a 'declaratory remedy’ which they say will act as a spur for the NHS to do the right thing.

The grounds for judicial review in this case

1. NHS England has failed, under regulation 45(3) of the 2012 Regulations, to ensure that 92 per cent of trans patients who are referred for medical treatment begin that treatment within 18 weeks of referral.

2. NHS England has failed, under section 3B of the National Health Service Act 2006, to provide services for children needing puberty blockers that they can access before starting puberty.

3. NHS England have failed, under the NHS Constitution, to uphold the rights of adult patients with gender dysphoria to begin treatment within 18 weeks of referral.

4. NHS England has unlawfully discriminated against trans people because waiting times for gender identity services are longer than for the vast majority of other healthcare services.

5. NHS England’s decision to introduce and maintain a ‘Multi-Professional Review Group’ as part of puberty-delaying treatment for trans children is unlawfully directly or indirectly discriminatory. We also think the Service Specification unlawfully requires both the child and their parents to consent to treatment, contrary to the principles established in Gillick and AB v CD. 

6. NHS England has failed to comply with its public sector equality duty to ensure trans people can access acute services by setting up the Multi-Professional Review Group for trans children and in the arrangements it makes with providers.  

The Judge made some observations on granting permission on all six grounds, noting the ‘(f)utility’ of any declaratory remedy when the NHS was already doing all it could to deal with the delays. Nonetheless, the threshold for permission was ‘low’ and these grounds crossed it.

The claimants sought an expedited timetable but the Judge noted that the remedy sought was simply to ‘mark’ the alleged breaches to help the NHS take proportionate steps to comply and there was no urgency. Also, the NHS was likely to require evidence from a wide range of sources and should have the usual 35 days to provide detailed grounds for contesting the application. It looks as if the matter will be heard by the end of the year, and will take one and a half days to consider.

Examining the Grounds

Grounds 1 and 3 Failure to offer treatment within 18 weeks of referral

The first ground refers to the duty to meet the maximum waiting times standards in the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 . Ground 3 makes a similar argument but refers to the NHS Constitution.

The Judge commented that it was difficult to see how such a duty, applying as it does to the entire population requiring the treatment, could be anything other than a ‘target duty’, but he conceded that the ‘stark language’ of the regulation gave the claimants an arguable case. Regulation 45(3) is set out in mandatory terms:

A relevant body must make arrangements to ensure that at the end of each data collection period, not less than 92% of the persons falling with paragraph (4) have been waiting to commence treatment for less than 18 weeks.

NHS England, in response to pre action letters, acknowledged that waiting times were lengthy and that this caused distress. However, this was due to a lack of available clinical expertise. The NHS denied that the Regulation created a legally enforceable right - echoing the Judge’s comments.

Ground 2: Failure to provide services for children needing puberty blockers that they can access before starting puberty.

This refers to section 3B of the National Health Service Act 2006. and I will confess I am immediately lost here. Section 3B refers to the Secretary of State’s ‘powers’ (i.e. not duty) and says regulations ‘may require the Board to arrange… to meet all reasonable requirements…’ (my emphasis). The wording is also odd - what ‘services’ do children ‘needing puberty blockers’ require other than ‘puberty blockers’?

In females, the normal onset of puberty is between 8-13 and in males 9-14. If it is being argued that this section creates a duty to provide puberty blockers for children at the ages of 8 and 9 for the purposes of transition, then I don’t understand that argument. The Cass Review confirmed in February 2022 that it could not provide advice on hormone treatments due to gaps in the evidence base. Further at para 3.24 with regard to puberty blockers it said:

3.24. The administration of puberty blockers is arguably more controversial than administration of the feminising/ masculinising hormones, because there are more uncertainties associated with their use.

And

3.33. An international interdisciplinary panel has highlighted the importance of understanding the neurodevelopmental outcomes of pubertal suppression and defined an appropriate approach for investigating this further. However, this work has not yet been undertaken.

It therefore is not truthful to assert that puberty blockers are ‘reversible’ - the evidence doesn’t exist to support this proposition. But nevertheless Maugham asserts this in his witness statement supporting the claim.

He further asserts at para 15 that the treatment protocols have been established for ‘decades’ and hence uncontroversial. He makes no mention of the Cass Review, nor the concern now being voiced against those treatment protocols by two eminent specialists in the field, Drs Bowers and Anderson - both trans women. Nor does he acknowledge the other jurisdictions which have now halted medical transition for children, over concern for the state of the evidence. The state of Texas in the US, now mandates investigations into parents who consent to ‘gender-affirming’ medical treatment as potential child abusers.

[EDIT - Maugham does refer to the proposed Cass Review in passing at para 22 and I appreciate his statement pre dates the publication of the interim review in February 2022. But the decision to give permission to proceed was on May 5th 2022. Did Maugham amend his statement? Were the findings of the interim Cass Review before the court?]

He asserts that puberty blockers are ‘reversible’ and provide a ‘breathing space’ for a child to decide whether or not to take cross sex hormones. He makes no reference to the concerns that almost every single child on puberty blockers goes on to take CSH and there is thus a risk that the child becomes ‘locked into’ this affirmation pathway. The majority of children expressing distress over their sex desist if allowed to go through puberty.

Rather ironically he argues at para 16 that puberty blockers are essential to avoid surgery later on. He makes no mention of the damaging consequences of long term use of puberty blockers. As the very sad case of Jazz Jennings shows, boys on puberty blockers will not develop enough penile tissue for a successful penile inversion to create a neo vagina. Dr Bowers has commented that none of her patients who were medically transitioned at Tanner Stage 2 have ever achieved an orgasm. This claim is disputed by some commentators who do not appear to have any medical qualifications.

Regardless of the impact on adult sexual function or fertility, other serious issues around medical transition of children are simply ignored by Maugham

• The risk of social contagion, seen in the incredible surge in adolescent female patients at the Tavistock around 2014-5 many of whom were also diagnosed with autism

• The increasing narratives of those now in their early 20s who ‘detransitioned’ and feel profound regret

• The apparent internalised homophobia which appears to be motivating some parents

• Clear concern over the ability of children under 16 to consent to medical transition

Ground 4: Long waiting times are discriminatory against trans people; others don’t have to wait as long

I am not sure I understand how this ground will be made out. Long waiting times are a perennial failure of the NHS and have been exacerbated by the pandemic as one publication notes

6.07 million people were on the waiting list for pre-planned NHS treatment in England in December 2021, more than one-tenth of the population. This figure has increased by around a third since the start of the pandemic due to the disruption that Covid-19 has wrought on the NHS.

Grounds 5 and 6: The NHS is unlawfully discriminating against trans children and in breach of its Public Sector Equality Duty by requiring a ‘Multi Professional Review Group’ and consent from parents and children

The Judge commented that the NHS made a ‘powerful’ response to this; the MPRG was about safeguarding, not discrimination. The NHS argued it was a practical response to the concerns raised about medical treatment of children, which were being investigated by the Cass Review. However, the Judge considered the requirement for consent from both parent AND children rendered these grounds arguable as a ‘Gillick competent’ child ought to be able to provide relevant consent.

Comments

Maugham’s witness statement asserts that the Good Law Project, although not a charity ‘tries’ to hold itself to the same regulatory and ethical framework. I suggest that the Good Law Project is falling far short of this aim:

• in particular, by permitting its Director to make assertions of truth in his statement that are in fact controversial and unsupported by evidence, and

• in general by soliciting donations to fund action against a beleaguered NHS when the only remedy sought is a ‘declaration’ that will have zero practical impact on the treatment of adults and children.

At para 8 Maugham dismisses the current state of discussion as an attempt to debate the very existence of trans people. This is a serious misrepresentation. We are all well aware that people exist who are unhappy with their bodies for a variety of reasons. Some are unhappy as they claim a ‘gender identity’ which is incongruent with their sex observed and recorded at birth. Stonewall declares that these people are ‘trans’ - but so too are men who like to wear women’s clothes intermittently. Its Head of Trans Inclusion Kirran Medcalf, gave evidence in the Bailey v Stonewall employment tribunal that there was no such thing as ‘full transition’ - transition was different for each individual. As the EHRC has pointed out in its response to the consultation on ‘conversion therapy’, ‘transgender’ is

a term which has no clear legal meaning, is potentially wider than the concept of gender reassignment in current UK law, and is understood by different people in different ways. 

Therefore, legitimate concerns about what exactly is ‘trans’, how trans and women’s rights conflict and whether or not young children actually benefit from medical transition cannot simply be brushed aside as illegitimate attacks.

As Maugham sets out in para 9 of his statement, three projects for ‘transgender litigation’ administered by the GLP have raised a total of £276,296 from 7,698 donations. That’s about £36 per person, or the salaries for 11 nurses in 1 year. The costs of this particular action are likely to run into hundreds of thousands of pounds, if not millions. The current crowdfunder has so far raised £44, 590 of its £100K ‘stretch target’.

I suggest that this is money which could be much better spent, particularly as the remedy the claimants seek is simply a ‘declaration’ that the NHS have acted unlawfully. What is the point of this action? What will it achieve? It seems that Maugham is motivated both by personal interest and a sense of moral imperative. In para 6 of his witness statement he admits that advocating for trans rights has ‘particular resonance’ for him because someone important to him is impacted by these issues. Of course I do not argue that people with a personal interest in a matter cannot campaign for it. But personal passion may sometimes overcome judgment. And when one is going to court, good judgment is essential. Will this case be added to the list of the GLP’s successes, or its rather longer list of expensive failures?

Para 10 of Maugham’s statement provides a further clue. Maugham asserts he is under a moral obligation to self appoint as a voice for a ‘voiceless community’. Those currently following the Bailey v Stonewall tribunal proceedings or who previously considered the court hearings in Miller, Forstater and Sanchez and the hounding of Professors Stock, Freedman and Phoenix, might raise an eyebrow at this characterisation of the ‘trans community’ as lacking a voice.

Perhaps this moral zeal combined with personal interest can explain Maugham’s serious misrepresentations about the realities of medical transition for children, but it cannot excuse them.

Either way, win or lose, this is going to be a very important judgment, and hopefully will provide some clarity about whether the law will support medical transition of children on the current evidence. I don’t think anyone with any modicum of compassion or humanity argues that anyone should suffer by being denied treatment that they need and which will improve their lives. But equally, no one with any integrity or care for children’s welfare should argue that the State has a duty to provide irreversible treatment with profound and life long consequences for children, without a very sound evidence base indeed.