Puberty blockers, commissioning of gender…

On 12 March 2024, it was announced that NHS England had adopted a policy position that puberty suppressing hormones (aka puberty blockers) would not be available as a routine treatment on the NHS for the treatment of trans children and young people. This policy position follows a complex and lengthy background as set out below.

Background to the commissioning of gender identity services for children

It is NHS England (rather than Integrated Care Boards) that commissions gender identity services. This is in pursuance of its duty to make arrangements for the provision of certain services for specified rare and very rare conditions under regulation 11 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. These services include a “gender identity development service for children and adolescents” (para 56 of Sch 4) and “gender identity disorder services” (para 57). A child is defined as under 18 (para 1(a)) although curiously “adolescent” is not so defined: it is unclear what that adds, therefore, to paragraph 56.

Until recently, the only clinic commissioned by NHS England to provide services for trans children for the whole of England was the Gender Identity Development Service operated by the Tavistock and Portman NHS Foundation Trust. Waiting lists for the service have been severe, with Chamberlain J describing them in R (AA) v NHS Commissioning Board [2023] EWHC 43 (Admin) as a matter of “great regret”. In that case, two children referred to the clinic brought a claim for judicial review against NHS England in respect of the wait times at the clinic. Although the claim was ultimately unsuccessful in the High Court and the Court of Appeal, it established that trans children may have the protected characteristic of “gender reassignment” such that they fall to be protected by the Equality Act 2010.

In 2020, NHS England commissioned a review of the services for trans children, which was conducted by Dr Hilary Cass. That review is ongoing but is expected to conclude in April 2024.

Following an interim report published in February 2022 from the review, NHS England proposed to replace the provision at the Tavistock with two new clinics in Manchester and London respectively, with seven or eight others to follow thereafter. However, the Tavistock clinic has stopped accepting new referrals since 2023 without the replacement provision in place and with long and lengthening waiting lists and is set to close by 31 March 2024.

However, it does not appear that any of the new clinics are yet fully operational. Instead, at present, the waiting list was transferred to NHS England and is currently proposed to be managed on its behalf by the NHS Arden and Greater East Midlands Commissioning Support Unit as the “National Referral Support Service for the NHS Gender Incongruence Service for Children and Young People”.

That service only applies to those under the age of 17: if an individual reaches the age of 17 while on the waiting list, their case will be closed and they are advised to discuss with their GP a referral to an adult gender dysphoria clinic.

It is unclear, in these circumstances, whether NHS England is currently meeting its obligation to make arrangements for the provision of the necessary services.

Puberty blockers

Separately to the commissioning of services, the courts have had to consider capacity issues around the prescribing of puberty blockers for trans children.

An unsuccessful challenge was brought against the Tavistock in R (Bell & Anor) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363. This case was explained in more detail on this blog here. In essence, the court rejected an argument that it was unlawful to prescribe puberty blockers to trans children if specialist medical professionals considered that this was an appropriate medical treatment for that child. The Court of Appeal also held that it was wrong for the Divisional Court to have given “guidance” in the form of its judgment (rather than through any formal declaration) to govern future medical practice in the treatment of trans children. That guidance had effectively suggested that most trans children did not have Gillick competence to decide for themselves whether to be given puberty blockers.

In between the Divisional Court ruling and the Court of Appeal ruling, the High Court in AB v CD [2021] EWHC 741 (Fam) held that parents have the competence to consent to their trans child being treated with puberty blockers, whether or not the child themselves had that competence (unless this competence is used to override the wishes of the child). The Court of Appeal in Bell expressly endorsed the decision in AB.

Alongside its February 2022 interim report, the Cass Review published further advice in July 2022 as to its view on the evidence relating to the clinical approaches for trans children. Following this, NHS England announced plans to remove the use of puberty blockers as a routine treatment on the NHS and to establish a programme of work to establish a clinical research framework as to these issues. It ran a consultation from 3 August to 1 November 2023 on these proposals.

Many organisations responded to the consultation strongly disagreeing with the proposals and suggesting that the evidence supported the use of puberty blockers. This notably included the European Professional Association for Transgender Health (EPATH) and The World Professional Association for Transgender Health (WPATH).

The recent announcement

The 12 March 2024 announcement to confirm the consultation proposals was made through a new clinical policy document, “Puberty suppressing hormones (PSH) for children and young people who have gender incongruence / gender dysphoria”, in which it states that:

“Puberty suppressing hormones (PSH) are not available as a routine commissioning treatment option for treatment of children and young people who have gender incongruence / gender dysphoria.”

The clinical policy was accompanied by a suite of documentation, including various evidence reviews and clinical panel reports, various consultation documents including a response to the consultation, and an equality and health inequalities impact assessment.

The NHS England consultation response document sets out the change in further detail. It makes clear the change applies only from 1 April 2024 and does not apply to children and young people who are already receiving puberty blockers through the NHS pathway, or who have been referred into an endocrine team commissioned by NHS England by 31 March 2024.

In relation to a possible exception to the policy, it says:

“Puberty Suppressing Hormones will not be available through an ‘exceptional circumstances’ route. Some stakeholders, including the new providers of gender incongruence services for children and young people, were concerned at how such a pathway could operate appropriately, effectively and equitably and NHS England has agreed with that view. Instead, as with all specialised services, a patient’s clinician can make an application under NHS England’s Individual Funding Request process. Under this process, the clinician making the request would need to explain why the patient’s clinical circumstances are exceptional and show all available clinical evidence for why they believe the patient would benefit more from the treatment than other patients with the same condition. They would also need to demonstrate why a treatment that is not routinely commissioned by the NHS is an appropriate treatment option.”

Going forward

The NHS’s adoption of this position is to take a course which departs from both the World Professional Association for Transgender Health Standards of Care for the Health of Transsexual, Transgender and Gender Nonconforming people and the Endocrine Society's Clinical Guidelines. It notably appears to depart from the position endorsed by the courts in Bell and AB.

The evidential basis underpinning this change will no doubt be carefully scrutinised, and it may be that it is susceptible to legal challenge on a number of bases, such as human rights, discrimination, common law fairness and compliance with the statutory framework. As set out above, it remains highly unclear how NHS England is continuing to meet its statutory duties in respect of the commissioning of gender identity development services in circumstances where no new referrals are currently being made.

Charles Bishop practises in all areas of public law, including healthcare, human rights and discrimination law, especially as it affects the LGBTQI+ community.