piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Transsexual seeking NHS breast augmentation loses appeal

In R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247 the Court of Appeal has dismissed the appeal of a male to female transsexual who was seeking NHS funding for breast augmentation surgery.  In 1996 AC was diagnosed with Gender Identity Disorder (GID).  The PCT provided AC with hormone replacement therapy and was prepared to fund genital reassignment surgery, which AC declined.  AC was disappointed with her breast development as a result of the hormone therapy and sought funding for surgical enhancement, which the PCT declined.  Her challenge to this decision by way of judicial review was unsuccessful at first instance.  She appealed.  The main issue in the case was disposed of in short order by the Court of Appeal (per Hooper LJ): "I understand why the appellant feels aggrieved that the respondent funds the core gender reassignment procedures outlined in the Policy, notwithstanding the absence of evidence of limited clinical effectiveness, but does not also fund breast augmentation surgery for persons like the appellant (given, in particular, that there is no professional consensus on the classification of core and non-core procedures for gender reassignment). But the answer in law to that feeling is that the respondent, 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...  this conclusion disposes of the case”. Hooper LJ went on however to consider arguments that had been pursued on the issue of discrimination.  The PCT had defended its policy in part by arguing that to grant funding for this surgery to transsexual women could be considered to amount to discrimination against women born female who were similarly dissatisfied with the size of their breasts.  It was argued against the PCT that this reasoning was unlawful because it involved treating different cases in the same way improperly.   It was said that breast augmentation for an individual in AC's position was not simply a matter of improving body image but was an important part of the gender transformation, in other words it is an issue of identity rather than simply of body image. The Court of Appeal ultimately decided that discrimination was not proved. The question was essentially what the “relevant characteristic” was when deciding whether to treat particular cases alike or differently in respect of access to breast enlargement surgery.  The Court of Appeal recognised the competing views held by the parties, but concluded that, in the context of making difficult decisions and judgments about treatments and the use of resources, the PCT was entitled to take its view that at the time of presentation both a transsexual female and a congenital female had the same reason for seeking the same treatment.

Lord Woolf Warns of Human Rights Conflict

Whatever your views about the Human Rights Act 1998 ("HRA"), most lawyers would admit that it has led to many interesting developments in the law, although not as many as were feared as we approached the turn of the century and the Act coming into force.  The approach of the courts in this jurisdiction has, for the most part, been reasonably restrictive although it is clear that in the arena of public and administrative law in particular, the HRA has had a pivotal role in shaping the law. For many personal injury lawyers the HRA impacts little on day to day practice, save for ticking the box on various court documents to confirm that there is no human rights issue in a claim.  Equally, whether one acts primarily for claimants or defendants, the HRA has an influence that cannot be ignored.  For example, the case of R (on the application of Middleton) v HM Coroner for Western Somerset [2004] AC 182 has changed not only the conduct of inquests where Article 2 of the European Convention on Human Rights ("ECHR") is engaged.  As coroners have become more used to conducting wide ranging inquiries and giving narrative verdicts the scope of even traditional inquests has expanded.  Further, if one acts for or against public bodies, an almost inevitable occurrence at some time during the career of most personal injury lawyers, the scope of the duty of care and the obligations owed by agents of the state to individuals in certain areas have also been influenced by the courts' recognition of Convention rights.  It has been well publicised that the government is considering the future of the HRA both as a result of longstanding policy objectives and also following dissatisfaction in some quarters about the influence of the Convention on difficult issues such as prisoner voting rights and whether those on the sex offenders register should have a right to appeal to have their name removed after a certain period of time.  David Cameron has announced an intention to set up a Commission to consider whether a UK Bill of Rights should be introduced. On Monday Lord Woolf, Lord Chief Justice from 2002 to 2005, was interviewed on Radio 4's Today programme.  Although Lord Woolf made it clear that he did not take issue with the setting up of a Commission to consider the issue of human rights, he warned: "We have got a stark option: either we accept the European Convention, or we don't accept it and decide to leave the Council of Europe. It's very difficult to do what [Justice Secretary] Mr Clarke indicated he would like to do when he's chairman of the relevant body, because there are 47 signatories in Europe which are signatories to the European Convention as well as ourselves. To try and amend that is a virtually impossible task...  If you have a further convention - a British convention [the Bill of Rights] - there's going to be a complication in the position, because you're going to have two conventions to which the courts are going to have a regard." Whatever one might think about prisoner voting rights and the sex offenders register, it is easy to anticipate that emotive issues such as these will lead to strong and often polarised views.  Further, whether one is for or against the influence of the ECHR within the UK, one can see that difficult issues such as these do not make a good platform on which to base a discussion about the influence of the HRA on UK law over the last decade.  The incremental and often restrictive approach of the courts in allowing HRA arguments to expand the law much beyond our pre-existing common law receives little attention in the media.  In addition the cases where the HRA is relied on to expand the rights of "the good" rather than "the bad" also usually do not make good press.  An objective and carefully considered discussion about the influence of the HRA, good and bad, across all areas of law over the last decade should be welcomed by all.  Ten years is a reasonable period to enable proper reflection on quite what impact the HRA has had.  However, one cannot help but wonder whether politicians should be reminded not to base that discussion and consideration primarily on hard and topical issues such as prisoner voting rights and the sex offenders register.  After all, at law school most students are taught the old adage: hard cases make bad law.  It seems equally likely that over reliance on hard issues can give rise to bad politics too. 

Emergency Services: Liability under the Human Rights Act

Following Lord Young’s report, personal injury funding is likely to be reduced and, as a consequence, claims under the HRA against emergency services may become more frequent, according to Edward Bishop who recently spoke on the topic at the Personal Injury Bar Association Winter Conference. One advantage of the HRA is that, in contrast to the common law, which adopts different approaches to different emergency services as regards the question of whether a duty is owed, the HRA treats the question more consistently. Section 6 of the HRA provides: It is unlawful for a public authority to act in a way which is incompatible with a Convention right. A number of convention rights may be relevant to actions against emergency services, including: a)      Article 2: Right to Life; b)      Article 3: Prohibition of Torture, Inhuman and Degrading Treatment; c)       Article 5: Right to Liberty and Security; and d)      Article 8: Right to Respect for Private and Family Life. The extent of the duties owed under the HRA was explained in Osman v UK ((2000) 29 EHRR 245). At paragraph 116 the Court held: bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources […] it must be established […] that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual […]  from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. However, as Edward highlighted, although the HRA provides a more consistent approach, it may also pose a number of difficulties for claimants. These include the following: a)      The Osman test is more difficult to satisfy than “ordinary” negligence, as explained by Baroness Hale in Savage v South Essex Partnership NHS Foundation Trust ([2008] UKHL 74 at paragraph 97); b)      There is no liability under the HRA for clinical negligence (Powell v United Kingdom (2000) 30 EHRR CD 362); c)       The claimant must be someone who “is (or would be) a victim of the unlawful act” (section 7(1) of the HRA); and d)      The limitation period for HRA claims is one year (section 7(5) of the HRA). Although this is likely to be extendable pursuant to section 33 of the Limitation Act 1980.