Campaigners have lost a court of appeal challenge against NHS England over waiting times for gender dysphoria treatment.
Two transgender adults, Eva Echo and Alex Harvey, and two children, who cannot be named, brought legal action against the health service over “extreme” waiting times for a first appointment with a specialist.
At a high court hearing in November 2022, their lawyers argued that NHS England failed to meet a duty to ensure that 92% of patients referred for non-urgent care start treatment within 18 weeks.
In a ruling in January, Mr Justice Chamberlain rejected the claim, finding that the NHS has “a duty to make arrangements with a view to ensuring that the 18-week standard is met” and that applies to patients as a whole, rather than individuals.
The four people challenged this ruling at a hearing earlier this month, at which their lawyers argued the regulation’s wording was “deliberately and unambiguously framed in mandatory language”.
But in a decision on Monday, Lady Justice King, Lord Justice Moylan and Lord Justice Popplewell dismissed the appeal.
Lord Justice Popplewell said: “NHS England’s function is one of arranging. It cannot achieve a waiting time standard itself by the provision of services, but only by making arrangements designed to achieve it through the provision of services by others. Whether those arrangements do achieve it is not in NHS England’s hands.”
At the hearing in November, the high court was told that, as of August 2022, there were 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 was approximately 7,600, of whom about 6,100 have been waiting more than 18 weeks.
In a witness statement, Echo said she had received a referral in October 2017 but had still not been given a first appointment, leaving her in “painful indefinite limbo”.
Bekah Sparrow, a legal officer at the Good Law Project, which supported the legal challenge, said: “Today’s outcome is not what we hoped for, and we are incredibly disappointed to see NHS patients let down once again.
“Good Law Project wants to see a world in which everyone, regardless of their gender identity, is able to access the healthcare they need within reasonable timeframes. We continue to stand alongside the transgender community, and all NHS patients, as we work towards a fairer world.”
An NHS spokesperson said: “The NHS welcomes the judgment and is pleased to see that these claims have again been dismissed – this time, unanimously by three senior appeal judges.
“The NHS will continue to drive forward improvements in gender services and tackle the waiting lists which have grown because of rapidly rising demand, while taking action to reduce the wider elective Covid backlogs.”
