Court of Appeal Upholds the High Court’s Decision That Long Waiting Times for Transgender Healthcare are Lawful

Lucy McCann

R (on the application of AA (A Child)) v National Health Service Commissioning Board (NHS England) [2023] EWCA Civ 902 on appeal from [2023] EHWC 43 (Admin).

On 16 January 2023, the High Court dismissed the claim [2023] EHWC 43 (Admin). On 31 July 2023, that decision was upheld on appeal [2023] EWCA Civ 902, with Popplewell LJ giving the lead judgment.

Background

In a previous article on the High Court decision in this matter, I set out the background facts in this case. In brief summary, the demand for young people receiving gender identity development services (‘GIDS’) and adults receiving gender identity disorder services (also, helpfully, ‘GIDS’) has increased substantially over the last decade and the NHS has struggled to meet this demand. The consequence is that transgender NHS patients have to wait for significant periods following referral to receive treatment. The six Claimants/Appellants in this case – four transgender patients, Gendered Intelligence, and the Good Law Project – sought to challenge these long waiting times on five grounds:

  • Under reg. 45(3) of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 to “make arrangements to ensure” that 92% of a cohort of NHS patients being referred for non-acute treatment commence treatment within 18 weeks.
  • Under s.3B of the National Health Service Act 2006 by delaying puberty blocking treatment in such a way that children are unable to access the services before the onset of puberty.
  • Under s.2 of the Health Act 2009 by failing to have regard to the right of adult gender dysphoria patients under the NHS Constitution to commence treatment within 18 weeks of referral.
  • NHSE directly, or alternatively, indirectly discriminated against the first to fourth Claimants with regard to their protected characteristic of gender reassignment.
  • Failed to comply with its public sector equality duty (‘PSED’) to make arrangements for the provision of services for people seeking treatment for gender dysphoria.

Chamberlain J found against the Claimants/ Appellants on all five grounds, which I explore in my previous article.

Decision

The Appeal raised two questions, both relevant to the first ground set out above:

1. Whether regulation 45(3) was a ‘target duty’ or not – i.e. did it impose a duty to make arrangements with a view to meeting the waiting time standard, or a duty to achieve it.

2. Whether regulation 45(3) only applied to consultant-led services.

Is regulation 45 a ‘target duty’?

This issue was central to Chamberlain J’s decision in the High Court, and it is of relevance not just to transgender patients, but to all NHS patients who have to wait over 18 weeks for non-acute treatment. Regulation 45(3), as amended, provides:

“(3) A relevant body must make arrangements to ensure that at the end of each [calendar month], not less than 92% of the persons falling with paragraph (4) have been waiting to commence appropriate treatment for less than 18 weeks.”

In the High Court, Chamberlain J held that the duty under reg.45(3) “is a duty to make arrangements with a view to ensuring that the 18- week standard is met […] the regulation does not regard failure to achieve that standard, without more, as a breach” [99]. He continued that the question of whether NHSE was in breach of reg.45(3) fell to be answered against the background of what it was presently and pointed to a number of factors affecting waiting times including (i) the marked increase in demand for services (ii) recent clinical controversy surrounding GID treatment (iii) the difficulty in recruiting and retaining specialists and (iv) and the need to redesign the commissioning model, see [101].

The Court of Appeal came to the same conclusion on this issue, but for different reasons.

Firstly, Popplewell LJ considered the language of the regulation, specifically that it imposed a duty “to make arrangements to ensure”. He concluded that: “Regulation 45(3) does not say that NHSE “must ensure” the waiting time standard is met, as it might have done if intended to impose an absolute achievement duty. The duty is to undertake an activity and the activity which is required is the making of arrangements. That is the kind of activity which NHSE undertakes in performing all its functions under the 2006 Act and 2012 Regulations. It is not itself a health care provider.” [47].

On this basis, Popplewell LJ reasoned that NHSE could not have intended to impose on itself an absolute duty when there are many vicissitudes which may preclude the 18 week waiting time being achieved, which are beyond NHSE’s control, and gave the example of a pandemic, doctors strikes, interruptions in the supply of medicines, etc. He also observed that there are important policy decisions that NHSE may have to make which could impact on waiting times.

Popplewell LJ further observed: “… regulation 45(3) duty is owed to the population as a whole rather than to any individual. A general duty to the population, not enforceable as an individual duty, is a paradigm characteristic of a target duty as distinct from an absolute duty.” [52]

Popplewell LJ held his conclusions to be consistent with Woolf LJ’s decision in R v ILEA ex p. Ali (1990) 2 Admin LR 822 [53 – 62] and also derived support for his conclusions from other less significant matters, including the terms of the NHS constitution, which he viewed to be consistent with interpreting regulation 45 as a target duty [64].

The cohort issue

Popplewell LJ also held that regulation 45 only applied to consultant-led services [76 – 95]. This is relevant because prior to the overhaul of GIDS, the only commissioned provider of child GIDS was the Tavistock and Portman NHS Trust (‘Tavistock‘) which was not consultant-led.