NHS faces legal action over gender clinic wait

A 14-year-old transgender boy has initiated legal action against the NHS over significant delays to gender reassignment treatment.

Acting on behalf of the teenager, the Good Law Project has written a letter before action addressed to the NHS. This letter highlights the unlawful nature of the delays and requests that the NHS meets its statutory duty to young people.

The legal action comes alongside an ongoing NHS independent review into gender identity services for children and young people. This review follows reports that teens were at risk as a result of the “hugely distressing” waits. Meanwhile Mermaids, a charity for gender variant and transgender youth called the delays a “national scandal”.

Teens at risk from delays

According to NHS guidelines, the target waiting period for referrals to specialist gender identity clinics and listing for surgery should take 18 weeks. However, in reality the waiting period can in fact last up to two years.

Figures obtained from a Freedom of Information (FOI) request by the Victoria Derbyshire programme, revealed that the maximum waiting period to see a specialist after being referred was 166 weeks (Belfast). This was followed by 145 weeks in Nottinghamshire, while the shortest waiting period was found to be 32 weeks at the NHS Highland’s gender identity clinic.

As a consequence of these delays, some trans teens have been forced into DIY transitioning, which can be dangerous and potentially life-threatening. Speaking to the BBC about the risks associated with DIY transitioning, Dr Grainne Coakley, from Sheffield’s Gender Identity Clinic, said blood clots and liver problems are a serious danger. “If that’s not being monitored by a GP, somebody not having regular blood tests, then they are putting themselves at risk,” she said.

Another serious risk associated with significant delays is suicide. Speaking to the Guardian, Bernard Reed, a trustee of the Gender Identity Research and Education Society, said: “The resultant long waits for a first appointment are acutely stressful. Although gender dysphoria is not itself a mental illness, failure to treat it does cause mental health problems. Self-harm and suicidality are major risks. NHS England is keenly aware of the problem and seeking to solve it but its efforts have not so far been successful”.

NHS independent review

On 22 September, the NHS announced that Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health, would lead an independent review into gender identity services for children and young people.

The review is set to examine the recent rise in the number of children and young people seeking treatment, with the NHS service at Tavistock seeing an increase from just 77 in 2009 to 2,590 in 2018-19. It will also focus on how care can be improved for children and young people, and particularly how and when they are referred to specialist services.

Commenting on the review, Dr Hilary Cass OBE, independent chair, said: “It is absolutely right that children and young people, who may be dealing with a complexity of issues around their gender identity, get the best possible support and expertise throughout their care. This will be an inclusive process in which everyone will have the opportunity to make their views known. In particular I am looking forward to hearing from young people and their families to understand their experiences”. She added: “This review provides an opportunity to explore the most appropriate treatment and services required.”

Dr. Michael Brady, the National Adviser for LGBT Health, said: “Every child matters and children and young people who are exploring their gender or experiencing gender dysphoria, including those who are trans or non-binary, deserve the very best from the NHS. This is why this review is so important so that all health professionals can deliver the very best healthcare in a compassionate and understanding way”. He added: “Throughout this process it’s critical we hear from children and young people, those who have accessed these services, their families and expert clinicians so I am pleased that Dr. Cass has put this at the heart of her approach.”

The findings and recommendations from the review will be presented to NHS England and the Improvement’s Quality and Innovation Committee.

Legal action launched

One teenage trans boy, who wants to be known as Reece has already been detrimentally affected by the waiting times. He has now had his referral to Tavistock, the UK’s only NHS gender clinic for children and adolescents, delayed by over a year.

Back in 2019, the teen’s GP referred him to the gender clinic for the first stage of the process, called “ assessment and exploration”. During this stage, the child or young person explores the nature of their gender identity. Other factors such as family history, history of gender identity development and sources of stress and support are assessed. However, Reece has not been able to even reach this initial stage yet.

Frustrated by the long waiting times, Reece reflected on how prevalent his own experience is among other trans youth: “I know more than 30 trans people, from school and LGBT groups. Everybody’s been waiting for months, or even years, but nobody’s been able to get in yet”. He added: “It’s scary because it shows the service isn’t available to the people who need it”.

The 14-year-old expressed that while he does not “ideally” wish to pursue legal action, he has ultimately been left with no other choice. The Good Law Project, acting on behalf of Reece, in a letter before action, has written to the NHS, asking them to fulfil its statutory duty to young people. Moreover, the not-for-profit organisation claims that the NHS is acting unlawfully in their failure to ensure that 92% of patients referred to gender identity development service (GIDS) are provided with appropriate treatment or an alternative within 18 weeks.

Jolyon Maugham, director of the Good Law Project, said: “NHS England has a statutory duty to ensure that patients referred by their GP to a gender identity development service are seen within 18 weeks.”

He added: “This is not happening, and as a result, we believe the law shows they should be providing alternative care to anyone on the waiting list. That could include private and overseas healthcare. Whilst the young people are waiting, puberty passes and transitioning becomes a lot harder – some people are effectively denied treatment. The NHS needs to make a cultural decision that trans people are real, and they have the same rights to treatment as everybody else”.

The Good Law Project has requested that the NHS responds by 4pm on 10 November 2020.