R (ota KK) Tavistock & Portman NHS Foundation Trust [2019] EWHC 3565 (Admin)
This article originally appeared in Issue 4 (March 2020).
This judicial review sought to challenge the decision by an NHS Trust to refuse to recommend a transgender prisoner for NHS-funded gender reassignment surgery by reference to an alleged protocol of the Defendant which in its operation de facto barred transgender persons (save those with no possibility of release) from being referred for gender reassignment surgery. The claim was unsuccessful, largely because (i) the Tavistock did not on a proper examination of the facts have any such protocol but rather treated each individual case on its individual facts and (ii) the expert clinical opinion (which was not disputed) was that no such referral should be made on clinical grounds and (iii) there was no unlawful interference with the Claimant’s rights under Article 8 or 14 ECHR because insofar as she was treated differently from how she would have been treated if living in the community, that is because the difference in environment is clinically relevant to the question of whether to make a referral.
Comment
Permission had been granted on the basis that it appeared from the Defendant’s correspondence, in particular its Chief Executive, Paul Jenkins, that there was a protocol of the kind complained of by Claimant. Following the production of witness evidence by the Defendant it quickly became apparent this was not in fact the case. Once that issue was decided against the Claimant the rest of the grounds (which were really parasitic upon there being some kind of written or unwritten protocol) collapsed. If the claim has any lasting interest it is from the observation that the environment of a prison is relevant to the clinical assessment of whether gender reassignment surgery is appropriate and will provide lawful justification under Article 8 or 14 for differential treatment.
