The problem with the National Health Service is that it is at best designed to accommodate the gender confused or appease the transvestite.
For the true transsexual it is a a no go area unless of course you are happy to play the game handing your destiny over to someone else and enduring a long slow difficult and frustrating process.
If you’ve read this blog you’ll realise I advocate going private for everything if you can afford it. If you can then the cheapest and quickest option is to go to the Private London Gender Clinic run By Dr Richard Curtis after you have changed your name and gender presentation. You will get a joint care (with your GP)prescription for hormone therapy and once you have your gender recognition certificate you can insist on surgery by the NHS if you want to.
Most National Health Service Primary Care Trusts will try to frustrate you as they are in the cost avoidance game. The National Health Service long ago ceased to be a caring service and some of the most bigoted bureaucrats can be found within the Department of Health.
They are of course not above the law so this is the case you make to get treatment when you have a gender recognition certificate:
1.1 Treatment Option Unlawful
The proposed treatment for psychiatric assessment at Charing Cross Hospital gender clinic prior to GRS is considered unlawful under the Mental Capacity Act 2004 and the amended Sex Discrimination Act 1975.
1.1.1 Mental Capacity Act 2004
The Mental Capacity Act 2005 covers this issue. A person cannot be forced to accept a treatment if the patient’s mental disorder does not justify detention in hospital, or the patient needs treatment only for a physical illness or disability. The successful treatment of gender dysphoria requires a surgical intervention (GRS) so must relate to a physical disability. Psychiatric interventions have never been successful on their own in addressing gender dysphoria.
Alternatively, it cannot be claimed that a psychiatric evaluation is required to have GRS. The Mental Capacity Act 2005 affirms that a person must be assumed to have the capacity to make a decision about their life/treatment unless there is evidence that they do not have such capacity. That a decision may appear to be foolish or unwise to someone, such as the PCT, is not evidence of this.
Any DH or PCT policy that contradicts the Mental Capacity Act 2005 is unlawful and invalid.
1.1.2 Sex Discrimination Act
The decision to refuse treatment at the preferred hospital appears to be due, at least in part, to sex discrimination by reason of gender reassignment contrary to the Sex Discrimination Act 1975 as modified by The Sex Discrimination Act 1975 (Amendment) Regulations 2008 No 963.
188.8.131.52 Gender Certificate
XXX is legally female and has a gender certificate and a female birth certificate.
The requirement for XXX to attend psychological evaluation will require duplication of the criteria for which she was issued with a gender certificate. To require this is sex discrimination by reason of gender reassignment contrary to the Sex Discrimination Act 1975 as modified by The Sex Discrimination Act 1975 (Amendment) Regulations 2008 No 963.
Most patients in XXX’s peer group are presenting as males considering future GRS at the beginning of their treatment and are legally male. In these circumstances, a psychological assessment may be appropriate. However, this situation where a patient is legally female at the time of their referral for GRS represents a new circumstance that has not been addressed.
184.108.40.206 Illogical Arguments
The arguments presented by the PCT are so illogical that it is difficult to see that there is a coherent argument behind them and if pursued one would be led to conclude that it is an attempt to justify prejudice. Such dogmatic prejudice would be unlawful discrimination against XXX by reason of her gender reassignment.
The PCT has proposed that XXX be referred for psychiatric assessment at Charing Cross when her GP referred her to have GRS with Mr ZZZ at Sussex Nuffield. A psychiatric assessment as part of the treatment is to lead the patient into making a decision as to whether they wish to make a permanent change of gender to their preferred gender. XXX has already made such a commitment and has acquired a gender certificate and a female birth certificate. This makes any psychiatric assessment redundant as well as illogical.
Finally, XXX appears to meet the PCT’s criteria for GRS as described in section 2.3.
220.127.116.11 Mental Health
From April 2008 Primary Care Trusts are expected to offer a free choice of where to go for hospital treatment. Exceptions are for mental health services and maternity services. Patients referred by their GP for hospital treatment can now choose to be treated in any hospital anywhere in the country, which meets the standards set by the NHS. The DH document Choice of Hospital: Guidance for PCTs, NHS Trusts and SHAs on offering patients choice of where they are treated published in July 2003 states that all patients who have to wait more than 6 months for a surgical intervention should be offered choice. Further, the document states: “The Department of Health does not believe there is any justification for the blanket exclusion of any category of patient.” Individual PCTs were to have implemented surgery choice with up to 5 hospitals by 2004.
Typical waiting times after a referral to an NHS Gender Identity Clinic have been typically 6 months but there is pressure to reduce this to 18 weeks as required for psychiatric services (NHS funding processes and waiting times for adult service-users: Trans wellbeing and healthcare GIRES for DH Feb 2008). Referral for surgery is a separate referral process and again an 18 week response time applies.
This can be contrasted with the current time to wait for surgery with Mr ZZZ at Sussex Nuffield of 13 weeks. Thus the referral for surgery via a referral to Charing Cross GIC will lead to a delay in surgery. This delay is unfavourable treatment and is thus sex discrimination by reason of gender reassignment.
2 MRSA Rates
No specific rates are available for Charing Cross so we have to infer from PCT rates. The DH published statistics for Imperial College Healthcare was for 967 reported episodes of MRSA at hospitals in the group, including Charing Cross, in the period April 2001 to Mar 2008. This represents an average rate of 2.68 MRSA episodes per 10,000 bed days with the minimum half year rate of 1.46.
Applying these rates to the 433 GRC patients, for an average 5 bed days (Mr UUU 3, Mr ZZZ 7), at Charing Cross the MSRA incidence would, for example, generate 0.32 to 0.58 occurrences. Therefore, it is not surprising that there were no reported incidents of MRSA in the Charing Cross GRC patients but there remains a significant risk of infection. This compares unfavourably with the Sussex Nuffield Hospital rate of zero episodes of MRSA.
This is not the case. Mr ZZZ has advised XXX, in an email, that Charing Cross hospital does not allow external selection of the surgeon for this procedure. Upon patient referral, either Mr ZZZ or his colleague, Mr UUU, is assigned to perform the procedure by hospital administration.
2.1.2 Specialised Service and the Choice agenda
“Choose & Book” – Patient’s Choice of Hospital and Booked Appointment Policy Framework for Choice and Booking at the Point of Referral (DH ref 3467 23 August 2004) identifies the exclusions referred to above in paragraph 19:
“19. Choice of hospital may not be appropriate for all services. The services that will not be required to offer a choice of 4-5 hospitals (or suitable alternative providers) by December 2005 are:”
· Services where other choices are more likely to improve the patient experience:
o maternity services
o mental health”
The GP referral was for GRS which although more commonly following a mental health element is a surgical procedure and does not fall within either excluded category. GRS has a near 100% success rate in relieving gender dysphoria.
Gender Identity Disorder is recognised as a specialised service in Specialised Mental Health Services (adult) - Definition No 22 (DH 2nd edition). This states that:
“The programme requires patients to complete a minimum of two years of real life tests before they are accepted for transgender surgery. For men seeking female identity, this includes exclusive adoption of female dress, a female name, and full-time employment as a female. Initial treatment is with hormone therapy, usually for a period of two years. The principal reasons for patients leaving the programme are psychiatric disorders, personality disorder and dysmorphophobia. The drop out rate is less than 1%. After this period of real life testing and treatment with hormone therapy (which averages 3-4 years) a proportion of the patients still in the programme are assessed as appropriate for surgical therapy. Patients will not be accepted for surgery unless at least 2 specialist consultant psychiatrists support the referral. Once the surgical option has been agreed, the patient is referred to one of the very few surgical units that provide this highly specialised service.”
XXX meets all these criteria and will have achieved “K” years living as a woman so there is no requirement for further psychiatric assessment.
The PCT is insisting that the referral should be to Charing Cross GIC for a psychiatric assessment. Presumably this is the PCT’s justification for pretending that a surgical intervention might fall under mental health services.
The Mental Capacity Act 2005 (see legal section below) covers this issue. A person cannot be forced to accept a treatment if the patient’s mental disorder does not justify detention in hospital, or the patient needs treatment only for a physical illness or disability. The successful treatment of gender dysphoria requires a surgical intervention (GRS) so this relates to a physical disability. Psychiatric interventions have never been successful on their own.
Alternatively, it cannot be claimed that a psychiatric evaluation is required to have GRS. The Mental Capacity Act 2005 affirms that a person must be assumed to have the capacity to make a decision about their life/treatment unless there is evidence that they do not have such capacity. That a decision may appear to be foolish or unwise to someone (the PCT?) is not evidence of this. The PCT have not offered any such evidence.
Any DH or PCT policy that contradicts the Mental Capacity Act 2005 is unlawful and invalid.
From April 2008 patient choice of hospital should be implemented by GP referral, as in this case.
2.1.3 Quality of Clinical Care:
18.104.22.168 Is the intervention offered effective? Evidence to be put forward to support the intervention.
The request was to use Mr ZZZ, one of 2 surgeons at Charing Cross, who also works at Nuffield Sussex. The other surgeon, Mr UUU, uses a different technique.
GRS is well established as being nearly 100% effective in relieving gender dysphoria and was not disputed by the PCT.
22.214.171.124 Is the intervention being undertaken by a known provider with an established reputation for treatment i.e. is the provider competent or there other potential providers?
Mr ZZZ is one of two surgeons at Charing Cross that would undertake surgery via the PCT preferred treatment pathway. Therefore there is no dispute that he is competent.
2.1.4 Quality of Life:
126.96.36.199 What is the patient’s quality of life? E.g. is the condition life threatening/is the patient in permanent chronic pain?
The patient’s gender dysphoria represents a disabling condition that can be remedied by GRS.
2.1.5 Health Gain:
188.8.131.52 What is the extent of the health gain?
There is no difference in the health gain from GRS with either path. However, psychiatric assessment at Charing Cross will only extend the delay until GRS.
184.108.40.206 Is the treatment meeting the patient’s needs?
The GRS will relieve her gender dysphoria. The patient does not want, and there is no evidence that she needs, psychiatric assessment at Charing Cross (ref Mental Capacity Act 2005).
2.1.6 View of Stakeholders:
220.127.116.11 Has appropriate clinical advice been taken?
There is no disagreement with all involved that GRS is the correct end result. The dispute has been on choice of hospital for GRS and a PCT insistence on a psychiatric assessment.
18.104.22.168 Are the patient’s requirement’s reasonable?
No party has disputed that GRS is a reasonable end result. This appeal document addresses whether the treatment path constraints the PCT has tried to impose are reasonable or even lawful.
22.214.171.124 GP approval sought.
The patient has the full support of her GP.
126.96.36.199 Does the patient fit the agreed patient selection criteria e.g. NICE guidance? If not, what is the case for expanding the selection criteria?
NICE guidance is not available. Not applicable as the dispute is in respect of patient choice in the treatment pathway.
188.8.131.52 What is the priority of this in relation to potential opportunity costs? i.e. is funding the intervention reasonable in relation to the needs of the overall population?
Not applicable as the dispute is in respect of patient choice in the treatment pathway.
184.108.40.206 What precedence for funding is there?
The PCT have offered XXX a treatment path at Charing Cross hospital which includes the same surgical procedure as a treatment component.
2.1.8 Cost Effectiveness and Affordability
220.127.116.11 Are alternative treatments available?
There are no effective alternatives to GRS in relieving gender dysphoria.
18.104.22.168 Are there comparable less expensive alternative and comparable interventions available?
XXX’s efforts to get visibility or clarification for cost comparisons have not succeeded due to the PCT’s failure to disclose cost information.
The PCT are proposing a treatment path of psychiatric assessment with Charing Cross GIC prior to GRS at Charing Cross Hospital, XXX’s GP requested she have GRS with the same surgeon at Brighton Nuffield Hospital.
22.214.171.124 Is the intervention currently available under contract?
Yes, at Charing Cross Hospital but it appears that this contract requires GIC psychiatric assessment prior to surgery.
126.96.36.199 Is this good use of public funds?
This is not disputed. The dispute is in respect of the treatment path.
188.8.131.52 Can the PCT afford this treatment?
Yes, in that the PCT are insisting that XXX must undertake treatment at Charing Cross if she is to receive PCT funding.
2.1.9 Human Rights
184.108.40.206 Is there a victim?
Yes, it is claimed that XXX has been the subject of sex discrimination by the PCT – see section below.
220.127.116.11 Is the PCT pursuing a legitimate aim?
No, it is claimed that XXX has been the subject of sex discrimination by the PCT – see section below.
18.104.22.168 Is the request/decision proportionate?
No, significant PCT resources appear to have been used to try to force XXX to submit to the PCT’s preferred treatment path.
22.214.171.124 Are there relevant and sufficient reasons for the decision?
No, the arguments presented in the letter in favour of the decision are flawed, see section 2.1.
2.2 PCT Criteria for GRS
The criteria for accepting a patient referral for GRS is stated in the PCT’s Policy Statement No. 1 – Commissioning Policy and Referral Guidelines for Gender Dysphoria Services and Gender Reassignment Surgery in Adults. The relevant section is 6.3 which list the criteria for the PCT commissioning GRS. The criteria (annotated with whether criteria is met) are:
· Patient aged 18 or over;
Yes, XXX is over 18
· The patient must be registered on the list of NHS patients of a GP practise with which SSPCT holds a contract or, where the patient is not registered with a GP practise, he or she must be “usually resident” in the geographic area covered by SSPCT, except where paragraph 80 of the Department of Health guidance “Who Pays Establishing the Responsible Commissioner” (September 2007) applies
Yes, XXX is registered with Dr LLL, Northgate Surgery in Uttoxeter
· The transsexual identity must have persisted for at least two years.
Yes, XXX has proof of this is in having a gender certificate.
· The disorder must not be a symptom of any other mental disorder or chromosomal disorder
Yes, Dr RRR, a consultant psychiatrist who assessed XXX at The Balance Street Medical Centre, Uttoxeter, confirmed that XXX did not have any other mental disorder. There is no suggestion that XXX has a genetic disorder.
· Patients should complete two years’ successful continuous full-time real life experience in their chosen gender role. Periods of returning to their original gender may indicate ambivalence about proceeding and should be excluded when calculating the two year continuum.
Yes, XXX has lived exclusively as a female since she changed her name to XXX and this is proved by her gender certificate.
· Patients should have found employment, or have been in education or training, in their desired gender role for a minimum period of one year, including employment in the voluntary sector.
Yes, XXX has been continuously employed by GGG, Uttoxeter in a female role since 18 November 2005.
· Patients should have continued with an established course of hormone reassignment therapy.
Yes, XXX is continuing her hormone reassignment therapy prescribed by her GP.
· Patients should have changed their name legally to one appropriate to the transgendered self.
Yes, ‘XXX’ changed her name to XXX on dd/mm/yyyy.
· Patients should have a demonstrable knowledge of the cost, required length of hospitalisations, likely complications and post surgical rehabilitation requirements of the various surgical interventions.
Yes, XXX has shown her understanding in correspondence with the PCT and is willing to have a short ( 1 hour) assessment by a psychiatrist to confirm that she is giving informed consent to the GRS procedure.
Thus, XXX meets the PCT criteria for referral for GRS which makes the PCT decision to refer her for psychiatric assessment under a claimed standard treatment is both illogical and a misuse of clinical resources in offering unnecessary and unlawful (psychiatric) assessment or treatment.
3 The legal environment
For convenience general legal information from the legislation quoted is presented here.
3.1 Mental Capacity Act 2005
The five statutory principles are:
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
In particular regarding XXX, she must be assumed to have the capacity to make the decision to have GRS unless there is medical evidence that she does not [MCA 2005 Section 1 (3) below]
A lack of capacity cannot be established merely by reference to—
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
Compulsory treatment under the MHA is not an option if: the patient’s mental disorder does not justify detention in hospital, or the patient needs treatment only for a physical illness or disability MCA 2005 Section
3.2 Sex Discrimination Act 1975
A section of the notes from the “EXPLANATORY MEMORANDUM TO THE SEX DISCRIMINATION (AMENDMENT OF LEGISLATION) REGULATIONS 2008” 2008 No. 963 are presented below.
(a) Section 1 SDA, (direct and indirect discrimination against women)
Schedule 1, paragraph 2 of the 2008 Regulations amends section 2A SDA (discrimination on the grounds of gender reassignment) to extend protection from direct discrimination on grounds of gender reassignment in the provision of goods, facilities, services or premises.
Schedule 1, paragraph 13 of the 2008 Regulations provides how the SDA operates in relation to gender reassignment discrimination in respect of contracts entered into which relates to differences in premiums and benefits.
(a) Article 3 SDO, (direct and indirect discrimination against women)
Schedule 2, paragraph 2 of the 2008 Regulations amends Article 4A of the SDO (discrimination on the grounds of gender reassignment) to extend protection from direct discrimination on grounds of gender reassignment in the provision of goods, facilities, services or premises.
Schedule 2, paragraph 13 of the 2008 Regulations provides how the SDO operates in relation to gender reassignment discrimination in respect of contracts entered into which relates to differences in premiums and benefits.
(b) Section 1(2) SDA.
Schedule 1, paragraph 1 of the 2008 Regulations applies the Directive-based definition of indirect discrimination in section 1(2) SDA to those areas of the SDA with which the Directive is concerned, namely sections 29-31, except in so far as they relate to an excluded matter.
(b) Article 3(2) of the SDO.
Schedule 2, paragraph 1 of the 2008 Regulations applies the Directive-based definition of indirect discrimination in Article 3(2) of the SDO to those areas of the SDO with which the Directive is concerned, namely Article 30-32, except in so far as they relate to an excluded matter.
3.3 R v North West Lancashire HA ex p A, D and G (1999) 53 BMLR 148,  1 WLR 977
This precedent appears relevant to XXX’s case.
The Court of Appeal said that a decision regarding the provision of treatment must be taken within a proper framework.
Although it is appropriate for a Health Authority to have a policy for establishing certain priorities in funding different treatments, in establishing priorities - comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims to treatment - it is vital for the Health Authority to:
· accurately assess the nature and seriousness of each type of illness
· determine the effectiveness of various forms of treatment for it, AND
· give proper effect to that assessment and that determination in the formulation and individual application of its policy