NHS England has acted unlawfully by making thousands of patients with gender dysphoria wait “extreme” periods of time for treatment, the high court has heard.
Transgender claimants, who have suffered distress as a result of delays, want the court to declare that NHSE broke the law by failing to meet a target for 92% of patients to commence treatment within 18 weeks.
NHSE figures show there are 26,234 adults waiting for a first appointment with an adult gender dysphoria clinic, of whom 23,561 have been waiting more than 18 weeks. The number of children on the waiting list is approximately 7,600, of whom about 6,100 have been waiting more than 18 weeks.
In a witness statement, one of the claimants, Eva Echo, said she received a referral in October 2017 but had still not been given a first appointment, leaving her in “painful indefinite limbo”. A co-claimant, Alexander Harvey, who has been waiting for a first appointment since 2019, said the delay “means that I have to continue to live in a body which I don’t feel is mine and which does not reflect who I am”. He said he had twice tried to kill himself.
The wait was also having a negative effect on the mental health of two child co-claimants, aged 12 and 14, who could not be named, the court heard.
In written submissions for Tuesday’s hearing, David Lock KC, representing the claimants, said delays to puberty-blocking treatment – the current waiting time for children to access services is more than two years – could cause “intense anxiety and distress” to adolescents as a result of them experiencing “permanent and irreversible bodily changes”.
The declaration sought by the claimants, who also include the charity Gendered Intelligence and the Good Law Project campaign group, would apply to NHSE’s performance across all commissioned health services. As of August, only 60.8% of patients across all services received appointments within 18 weeks.
Lock said: “A declaration would have the important effect of marking and acknowledging the continuing unlawful conduct in respect of the provision and commissioning of public health services by NHS England and ensuring that future budget allocations will be sufficient to fund services to meet NHS England’s legal duties.”
Lock, who described waiting times as “extreme”, told the court NHSE had also breached the public sector equality duty and the four individual claimants were unlawfully discriminated against as they were waiting far longer than patients seeking other health treatments.
While NHSE accepts it has not met the 92% target across the cohort of patients for whom its health services are commissioned, it claims a breach does not give rise to enforceable individual rights.
Its advocate, Eleanor Grey KC, said in written arguments that the regulations created “duties which necessarily shape the design of its commissioning arrangements but are neither absolute obligations to achieve a specific result or outcome giving rise to an immediate breach if not attained, nor enforceable … [by] … individuals”.
Grey said NHSE had increased funding for gender identity and dysphoria services but the main constraint was a shortage of staff.
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Given the steps already being taken, she claimed a declaration of unlawfulness would be “pointless” and could actually be damaging by prompting the health secretary to abolish the 18-week target.
Grey said NHSE denied discrimination because delays were not a result of the protected characteristic of seeking gender reassignment but due to “rapidly increasing demand and limited specialist services”.
The hearing is expected to conclude on Wednesday.
In the UK and Ireland Samaritans can be contacted on freephone 116 123, or email jo@samaritans.org or jo@samaritans.ie; and in the UK, the youth suicide charity Papyrus can be contacted on 0800 068 4141 or email pat@papyrus-uk.org. In the US, the National Suicide Prevention Lifeline is at 800-273-8255 or chat for support. You can also text HOME to 741741 to connect with a crisis text line counselor. In Australia, the crisis support service Lifeline is 13 11 14. Other international helplines can be found at befrienders.org