After something of a lull in priorities cases (the last reported case having been in 2008), judgment has recently been handed down by the Court of Appeal in AC v Berkshire West Primary Care Trust (2011). This is the latest in a long line of cases where patients have challenged decisions not to fund the particular treatment sought under a PCT’s individual case or exceptionality procedures.
The PCT successfully defended the appeal. Their policies and decision making were not criticised and no referral back to the Case Review Committee (the PCT’s individual funding request panel) was made.
The case involved a natal male (AC) who was challenging the 2006 and 2008 decisions of West Berkshire Primary Care Trust (the PCT) to refuse funding for breast augmentation surgery and the policies which gave rise to those decisions. Although the PCT was prepared to commission core gender identity dysphoria (GID) services for AC, including genital reassignment surgery, she had not sought to have this carried out. She had, however, received hormone treatment. AC considered the breast development resulting from this hormone therapy to be disappointing and therefore sought funding for an augmentation mammoplasty. This procedure was not classified by the PCT as a core procedure and was therefore not funded unless an individual could demonstrate exceptional clinical circumstances.
The PCT is one of nine in the South Central Strategic Health Authority (SHA) area which use the services of an NHS consultancy body called the Public Health Resource Unit. One of its directorates, the Priorities Support Unit (PSU), was contracted to provide independent evidence based advice on the clinical and cost effectiveness of drugs and procedures. The SHA and nine PCTs also operate a Priorities Committee to advise on strategic investment. The PSU produced an “evidence synthesis” on the management of GID which went out to consultation and was ultimately formalised in a policy statement agreed by the Priorities Committee. This classified breast surgery as a non-core procedure, requiring patients to be considered under the committee’s policies on cosmetic surgery. These, in turn, treated breast augmentation as a low priority but stated that exceptional circumstances might be considered where there was evidence of significant health impairment and evidence that the intervention would improve health status.
The decisions challenged
AC’s request for funding was refused by letter in June 2006, by the PCT’s Case Review Committee in August 2006 and by an appeal panel in May 2007. AC complained to the Healthcare Commission and, after extensive further correspondence, the matter was considered again by the Case Review Committee, which upheld the previous refusals.
AC sought a judicial review of the PCT’s Gender Dysphoria Policy on the grounds that it was unlawful and/or irrational to classify breast augmentation surgery as a low priority or non-core procedure, and sought to challenge the decisions to refuse funding.
Following the issue of proceedings in October 2008, the Case Review Committee met once again, in November 2008, and again upheld its refusal, this being communicated by letter dated 5 December 2008. This time, there was discussion and comparison of AC’s case with that of “Ms X”, a non-transsexual woman of 18, suffering from congenital absence of breast tissue, for whom the PCT had funded breast augmentation surgery, on account of the “extensive documented history of psychological illness requiring professional intervention and medication to manage depression” which the committee deemed to be “substantially different to the chronic mild to moderate distress best described as an adjustment disorder as outlined by the psychiatrist in [AC’s] case”.
The application for judicial review was subsequently amended by the claimant to raise discrimination issues, prompting the Equality and Human Rights Commission to intervene in the proceedings. The PCT then commissioned a report (the Bazian Report), in March 2010, which looked specifically at breast augmentation surgery for transfemales like AC and concluded that there was no persuasive evidence for a change to the policy.
The decision of the High Court1
Because this was an exceptionality case dealing with the allocation of scarce resources (see post script below), the judge, Bean J, quoted extensively from the comments of Auld LJ in the A, D and G case2 involving North West Lancashire Health Authority. He accepted that it was lawful for a primary care trust to weigh up and prioritise interventions in order to meet the reasonable requirements of all those in the area for which it is responsible. It made sense to have a policy for that purpose – indeed, it might be irrational not to have one – and it made sense that, in setting its priorities, treatment for transsexualism would normally be placed lower on the scale than treatment for cancer, heart disease or kidney failure, for example. Moreover, within the treatments that could be undertaken for gender identity transformation, the court found that there was nothing unlawful or irrational in designating some interventions as “core” procedures and others “non-core”, even though there was no professional consensus on the designation.
The court endorsed the view that it was entirely rational to allow for funding in exceptional circumstances, such as overriding clinical need, whilst leaving those precise circumstances undefined, provided that such a policy genuinely recognised the possibility of there being an overriding clinical need and made provision for each request for treatment to be considered on its own individual merits.
The court approved the statement of Sir Anthony Clarke MR in Rogers3, when he said:
“A policy of withholding assistance save in unstated exceptional circumstances … will be rational in the legal sense provided that it is possible to envisage, and the decision maker does envisage, what such exceptional circumstances might be. If it is not possible to envisage any such circumstances, then the policy will be in practice a complete refusal of assistance and irrational as such because it is sought to be justified not as a complete refusal but as a policy of exceptionality”.
Bean J concluded that the committee had been right to draw a distinction between Ms X’s case and AC’s case, on the basis of the degree of psychological distress/disorder engendered by the absence or perceived inadequacy of breast tissue. He declined to accept the invitation from AC’s counsel to say that a natal woman who was not a transsexual was not the correct comparator in a case of this type. Both AC and a non-transsexual such as Ms X were patients suffering psychological disorder because of inadequate breast tissue and seeking funding for surgery in the hope that this would alleviate the disorder. The comparison was therefore a fair and rational one to make.
Bean J accordingly dismissed the application for judicial review.
The decision of the Court of Appeal
Grounds of appeal
Although the challenge was to the refusal to fund contained in the letter of 5 December 2008, most of the grounds of appeal concentrated on the lawfulness of the policies under which the PCT had reached its decisions. The remaining ground alleged that, on the assumption that the policies were all indeed lawful, the decision not to fund the augmentation mammoplasty on the grounds of exceptionality was irrational.
The decision covers:
- Discrimination; and
In the Court of Appeal, the PCT argued that the basis of the case had shifted. When funding was originally sought, there was no suggestion that there was a serious mental health or psychological element to the application, nor that the requested operation was an essential part of the gender transformation process, either for AC or for GID patients generally; the original application for funding had been substantially justified on the basis that it would enable AC to feel more feminine.
The two relevant policies were the Gender Dysphoria Policy, dated July 2006, and the Cosmetic Breast Surgery Policy, dated January 2004 and updated in 2008.
The Gender Dysphoria Policy stated that ”there is limited evidence to suggest that gender reassignment surgery is effective” and that gender reassignment surgery “is a low priority treatment due to the limited evidence of clinical effectiveness”. Notwithstanding this dearth of evidence, the policy divided the various procedures available for treatment of the condition into “core” and “non-core” or “low priority” procedures, the former being routinely funded, on satisfaction of set criteria, if recommended by the treating clinician; the latter (including breast augmentation) only being funded if the patient could satisfy the criteria under the cosmetic surgery policies or establish that they had exceptional clinical circumstances and evidence of significant health impairment which would be improved by treatment. The Court of Appeal rejected the allegation that it was irrational to have classified breast augmentation as a non-core procedure.
The court also saw no force in the criticism that both policies referred to breast augmentation as a “cosmetic” procedure. Hooper LJ, delivering the judgment of the court, said that it was clear that “cosmetic” did not mean purely “aesthetic” as, for example, breast reduction to reduce back pain could be funded under the Cosmetic Breast Surgery Policy. The appellant, however, argued that the PCT’s policy failed to give sufficient weight to the clinical importance of breast augmentation therapy to a transfemale for whom hormone therapy had produced insufficient breast development for the desired progression to physical womanhood to be unimpeded. The court, however, found that the PCT could not begin to be required to fund breast augmentation surgery in these circumstances unless there was evidence of clinical benefit. As to this, the court upheld the view of Bean J that there was no consensus in the medical community as to the effectiveness of the procedure for the long term resolution of poor body self image and its associated psychological difficulties and the PCT had been entitled to refuse funding in the absence of such evidence.
While the court acknowledged the frustration felt by the appellant that the PCT would fund “core” surgical procedures (which she did not, at least at this stage, want), notwithstanding the absence of evidence of clinical effectiveness, but would not fund the “non-core” breast augmentation she desired and felt essential to her realisation of femininity, Hooper LJ said :
“[T]he answer in law to that feeling is that the [PCT], in exercising its statutory responsibilities, has to make very difficult choices as to what procedures to fund and not to fund and the choice made in this case is not irrational.”
Although that conclusion would have been sufficient to dispose of the case, the PCT chose to justify the policy on a further ground which then became the subject of challenge and was described as “discrimination – treating unlike cases alike”. The PCT argued that, when considering whether to fund the augmentation procedure for a transgender female who was dissatisfied with the result from hormone therapy, the transfemale should be excluded from the GID policy. To do otherwise, the PCT argued, could result in discrimination against natal females who were equally dissatisfied because the transfemale could have a lower threshold to clear for breast augmentation than a natal female. The Priorities Committee had carefully considered this issue and had decided that their policy would be that they would not discriminate between transfemales and other women in granting access to all types of cosmetic surgery, including breast augmentation, as there was not “sufficient good quality evidence to justify making funding for this procedure a priority”.
The Court of Appeal decided that it was clear that the PCT believed the policy was therefore justified on the basis of clinical effectiveness and then went on to consider whether or not the policy was discriminatory by wrongly treating unlike cases alike. AC argued (as had been argued in the High Court) that the request for breast augmentation in a transgender female was prompted by the wish of the transgender female to be perceived as a woman at all, whereas for a natal woman, for whom the matter of gender perception was not an issue, the request derived from mere dislike of one’s shape as a woman.
The Court of Appeal considered discrimination generally, stressing that what was important was the “relevant characteristic” that resulted in the claim of discrimination, or justified the treatment. In this case, it was “necessary to identify what is relevant to the comparison between a transfemale with undeveloped breasts and a natal female with undeveloped breasts”. AC argued that it included the fact that dysphoria was integral to the transsexual condition, whilst the PCT argued that it was the reason for seeking the treatment. The court found that both parties were entitled to hold the views they did, but that, for an argument to succeed in law, AC would have to show that the PCT had either broken the law in the categories it had adopted or the choices it had made when drafting the policy. The court’s view was that it had not.
The final argument put forward by AC was that she should have been regarded as exceptional under the policies and that it was irrational of the PCT not to fund the surgery on these grounds. The PCT’s Gender Dysphoria Policy provides:
“Exceptional circumstances may be considered where there is evidence of significant health impairment and there is also evidence of the intervention improving health status.”
The exceptionality argument was based on the history and vulnerability to depression and self harm of the appellant, and the alleged significant risk of deterioration in her mental health if the surgery were not performed.
The PCT had specifically considered whether potential distress and future possible negative reactions if surgery were not provided could be taken into account when considering how to prioritise care and funding, and had decided that these would not be appropriate factors on which to base their decision making. As AC was experiencing only “mild to moderate” psychological problems, the PCT had decided that she did not clear the threshold for exceptionality, as these symptoms did not constitute a “significant” health impairment within the scope of the policy. The Court of Appeal concluded that the PCT was entitled to reach this decision and that it was not irrational of them to decline to fund the breast augmentation on these grounds.
In terms of “exceptionality” per se, the case cannot really be said to do justice to its more than respectable heritage of ex parte B; A, D and G; and Rogers, although this is, no doubt, in no small part due to the recasting of the litigation as a discrimination case. Certainly Hooper LJ cast disappointingly little light upon the exceptionality landscape when he said:
“The use of the phrase ‘exceptional circumstances’ tells the decision maker that the number of persons who will succeed under the proviso is expected to be a small minority. It does not otherwise provide a helpful legal test for the decision maker”.
The courts have drawn a clear distinction between “resource allocation” cases, like R v Cambridge Health Authority; ex parte B4; A, D and G; and AC, on the one hand, and Rogers, on the other. Sir Anthony Clarke MR made it clear in Rogers that, if resources are not an issue, it is difficult to justify a requirement that an applicant for funding should have to demonstrate exceptional circumstances. No evidence was presented to the court in that particular case that, for example, one woman might have an exceptional need for Herceptin because she was unable to tolerate the only comparable alternative treatment (there being, in that case, no equivalent drug to Herceptin). Despite this, he did not rule out the possibility of an individual being exceptional, on clinical grounds, by comparison with the cohort of patients with the same disease at the same stage of progression even where resources were not an issue. It was simply a matter of whether any evidence to that effect had been adduced before the court – and, in Rogers, it had not.
In the current economic climate, however, with PCTs imposing tight budgetary controls and cutting back services wholesale, it will be a rare case indeed that is not hedged about by considerations of financial constraint. Rogers is therefore, to some extent, anomalous. The Court of Appeal in AC clearly recognised the PCT’s absolute duty to break even in each financial year.
In a few years’ time this is an issue which GP consortia will be faced with, instead of PCTs. How prepared will they be for this? In the words of Dr Clare Gerada “GPs will be blamed for the issues in front of them …. [W]e will be lobbied by patients, and quite rightly; we are the patients’ advocate, but we will be put now in the invidious position of having to always be the patients’ advocates but at the same time be mindful of the cost it’s going to be for the consortia”. Making GPs "the new rationers" of NHS care could ruin the long established bonds of trust between them and their patients, undermine the sacredness of the consultation and turn patients into little more than customers who shop around trying to get the best treatment for their condition, she added.