Legal challenge over NHS gender services practices paused by High Court
NHS England says their case should be dismissed.
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Two mothers bidding to bring legal action against the NHS over allegedly “unsafe and discriminatory” gender services practice have had their case paused by a High Court judge.
Anna Castle, 36, from London, and another woman who cannot be named for legal reasons, want permission to pursue a challenge against NHS England over how service guidance is applied to 17-year-olds and its impact on those with certain conditions.
Lawyers for the women claim that overlapping care specifications for this age group have a “stark inconsistency” and could have a “disproportionate impact” on young people with ADHD, autism or Asperger’s.
NHS England says their case should be dismissed, arguing that it was “academic” amid ongoing and planned reviews of gender identity services and policy.
At a hearing on Tuesday, a judge paused the claims until May 23 to give time for the potential publication of findings from an independent review of gender identity services for children and young people.
Mr Justice Swift said that the review, led by Dr Hilary Cass, is due to release its final report next month and concluded that its contents could help “clarify” arguments in the legal challenges.
Jeremy Hyam KC, representing the two mothers, said in written arguments for the hearing in London that there was “widely recognised concern about the high proportion of individuals presenting with gender dysphoria” who have other conditions like autism and ADHD.
He told the court that the women’s case centred on differences between documents setting out how gender identity-related care should be provided for children and adults.
The barrister said the June 2023 interim service specification for specialist gender incongruence services for children and young people (ISS) makes a “standardised comprehensive assessment of co-existing mental health conditions”, a mandatory requirement before treatment for “gender dysphoria” can start.
Two adult service specifications (ASS) from October 2022 and January last year do not make such an assessment mandatory, Mr Hyam said.
He said NHS England had “recently decided to remove all 17-years-olds from the waiting list of the child and adolescent gender service, covered by the ISS, and invite them instead to consider moving to an adult gender clinic waiting list, covered by the ASS”.
“Children aged 17 may be treated either under the ASS or the ISS and thus receive significantly different approaches to their care,” he said.
“A 17-year-old is prevented from self-referring under the ISS but permitted to do so under the ASS, where they may be offered less or no therapeutic input.”
Mr Hyam told the hearing this meant there were “unlawful differential levels of protection” that could affect hundreds of individuals who allegedly may not get their conditions properly assessed under the ASS route before progressing with a treatment plan.
He said this was “not safe” and risks “irreversible harm”.
In written arguments, he added that 17-year-olds were the largest age group to be referred to five adult clinics in 2019 and that NHS England should be ordered to consider amending the ASS document.
Eleanor Grey KC, representing NHS England, told the court that the overlap in care routes was “theoretical” as waiting lists meant those young people under the ASS will not reach treatment until they are aged 18.
She said the claims were academic due to Dr Cass’s expected report and because NHS England was committed to reviewing the ASS in the coming months, which would be informed by views such as the ones raised in the litigation.
Ms Grey said it was “factually wrong” to say there was a “sharp contrast” between the ISS and ASS, adding that “both specifications are aimed at securing a personalised, holistic and specialised assessment that addresses all the aspects of a patient’s history and presentation”.
In written arguments, she said the court case could create an “undesirable tangle” with the planned consultation on ASS and the court could “become sucked into considering matters of clinical opinion that are far better considered as part of the review process”.