Tuesday, 8 June 2010

Breast Surgery and the NHS

A woman who is of transsexual history (AC) has lost her case challenging the refusal of her health authority (Berkshire West Primary Care Trust) to fund her breast surgery. Here are my notes from the judgement.

The hormones which she is taking have not in her opinion produced adequate growth. Claimant has not, "at any rate so far, sought to have such surgery (GRS) carried out" which the PCT considers a core service in the treatment of GID.

Her treating clinician stated in written evidence that any attempts to help are not going to be as effective as a surgical solution and that AC has become more fixated on achieving this aim.

NHS authorities have a duty to balance the budget every year they therefore have to find the best use of their finite resources.

The judge appears to be following a line of decisions that state that they would rather the decision is left up to the various medical boards and accession panels. Quoting Lord Bingham in R v Cambridge Health Authority ex parte B [1995] 1 WLR 898.

"...Difficult and agonising judgements have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgement which the court can make. In my judgement, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court."

In other words health authorities have to decide what gives the biggest bang for their bucks, giving priority to grave illnesses.

With regard where transsexuals stand in the priorities the case of North West Lancashire Health Authority v A & Ors ([1999] EWCA Civ 2022) was referred to by the judgement. Glancing at the case they appeal court judges seemed slightly dismissive of the human rights angle, however since then the Human Rights Act has come into force since then as has the judiciaries willingness to apply the act along with the Goodwin judgement.However he agrees that there is no human right to surgery under article 8.

No consensus as to the psychological benefit BA surgery gives to MtF transsexuals or natal females, the case the complainant uses of Ms X, a natal female who received BA support was distinguished by the fact she was suffering severe psychological damage and even then the decision in favour was probably borderline.

It was  advanced that the exceptional circumstances requirement amounted to a blanket ban with regard transsexuals (and therefore discriminatory), the judge didn't agree saying it was psychological need (as in the case of Ms X's greater distress) that was the deciding factor.

The judge therefore dismissed claims that their policy discriminated between natal women and transsexual historied women.


Given the fact her lawyers had to prove some sort of irrationality to succeed I had my doubts it would be successful and so it turned out as Mr Justice Bean dismissed every argument. 

Its simple economics that even the best funded healthcare system does not have infinite resources and the NHS is no exception. Tough choices do inevitably have to be made sadly leading to someone losing out. I hope these considerations are made by rigorous evidence based panels rather than the populist whim of a national newspaper for the foreseeable future. Sadly for most, if not all, MtF women, the process of transition requires very deep pockets to cover what is core to them. I wish AC the best of luck finding the means to fund the surgery in the future.

Elsewhere: Court rules that NHS was right to reject transsexual's breast enlargement claim (via guardian.co.uk)


  1. Not to nitpick: In your sentence "Claimant has not, so far, sort out genital reassignment surgery which the PCT considers a core service in the treatment of GID" you need "sought", not "sort"! :-)

    She has not sought something, she did not seek something out. The past tense of "seek" is sought; although some might use "seeked" (which is popular, but incorrect).


    Carolyn Ann

  2. Its a fair point and one I missed.

    Sentence has been amended. :)

  3. Ahh, a single payer health care system - I wonder what that would be like :)

    Unfortunately this side of the pond even critical life threatening illness requires deep pockets...


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