LEGAL ISSUES
Solicitor Magnus Jardine-Brown of law fi rm Mundays discusses a recent case highlighting the need for NHS trusts to examine their policies on treatment entitlement.
I
n the context of current and continuing reductions in public expenditure and in
light of the new Public Sector Equality Du- ties which came into force in April 2011, a recent priorities case is a timely reminder for health authorities of the need for care in the investigation and drafting of policies regarding entitlement to treatment and funding issues.
On 11 March 2011, in the case of R (AC) v Berkshire West PCT, the Court of Appeal dismissed the appeal of a male-to-female transsexual (AC) who was refused NHS funding for breast augmentation surgery.
AC, who had been diagnosed with gender identity disorder, had been given hormone therapy but was disappointed with her sub- sequent breast development and in May 2006 she sought funding from her PCT for augmentation mammoplasty. Following a lengthy internal appeals process, on De- cember 2008 the PCT confi rmed that gen- der reassignment surgery was a ‘low prior- ity’ due to limited evidence of its clinical effectiveness. Funding would only be pos- sible for ‘non-core’ procedures, like breast surgery, in exceptional circumstances. The PCT did not consider AC’s case constituted such exceptional circumstances.
AC applied to the High Court for a judicial review of the PCT’s decision, and upon the High Court fi nding in May 2010 that there was nothing unlawful or irrational in the PCT’s decision, AC took her case to the Court of Appeal.
AC’s challenges to the High Court ruling were that the policies adopted by the PCT were unlawful and the decision not to fund her treatment on the grounds of exception- ality was both irrational and discrimina- tory. In particular AC argued that it was ir- rational to classify cosmetic breast surgery
56 | national health executive May/Jun 11
as ‘non-core’ surgical procedure and that it was irrational to conclude that the clinical effectiveness of gender reassignment sur- gery was uncertain.
The Appeal Court acknowledged the frus- tration felt by AC but dismissed the argu- ments observing that the PCT, in exercising its statutory duties, had to make very dif- fi cult choices and that the choice made in this case was not irrational.
The court then went on to consider a num- ber of signifi cant issues. The PCT had decided to exclude AC from their gender dysphoria policy and instead apply the cos- metic breast surgery policy on the grounds that it would be discriminatory to judge AC’s application for funding according to a different policy to that which would be applied in the case of a woman who was born female but who was dissatisfi ed with the size of her breasts. AC argued that there was a material difference between her case and that of a natal female, as the mam- moplasty was for AC a matter of identity, while for a natal female it was an issue of appearance.
The Court found that both parties were en- titled to hold their views but that what was relevant was what treatment was sought, whether the treatment was likely to be clinically effective and whether there were relevant budgetary restraints. The Court found that the PCT had not broken the law in the choices it had made.
The Court considered AC’s argument that she should have been regarded as an ex- ceptional case under the PCT’s policies. The Court of Appeal found that the degree of ‘mild to moderate’ psychological distress suffered by AC did not constitute a “signifi - cant health impairment” and did not clear the threshold for exceptionality.
The Court also considered submissions from the Equality and Human Rights Com- mission (EHRC) in response to AC’s rais- ing of discrimination issues.
New public sector equality duties created by the Equality Act 2010 became law on 5 April 2011 and cover age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. The new duties will have signifi cant implications for decision makers in terms of research, consultation and transparency when adopting policies and practices and when deciding on funding issues.
It is likely that interventions by the EHRC will become more common as more claims are made for entitlement to treatment or alleging a breach of the public sector equality duties.
Nevertheless, the case of AC is reassuring in re-affi rming that the court’s sentiments broadly continue to be that “the court is not appropriately placed to make either clinical or
budgetary judgments about
publicly funded healthcare: its role is in general limited to keeping decision making within the law.”
Mundays is a leading regional practice, established in 1960 and based in Surrey, with a diverse client base that includes major international and national compa- nies as well as small- er businesses, indi- viduals and families.
Magnus Jardine-Brown FOR MORE INFORMATION
T: 01932 590500 W:
www.mundays.co.uk
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