In England the statutory basis for the provision of opposite-sex imitation medicine comes from Section 3B(1) of the National Health Service Act 2006 as amended (“the 2006 Act”), it states that:-
Regulations may require NHS England to arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of— (a) dental services of a prescribed description; (b) services or facilities for members of the armed forces or their families; (c) services or facilities for persons who are detained in a prison or in other accommodation of a prescribed description; (d) such other services or facilities as may be prescribed.
The sub-section engaged by gender identity services is section 3B(1)(d). The relevant Regulations are the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”), Regulation 11 and Schedule 4 paragraphs 56 and 57.
SCHEDULE 4
Regulations 7, 10 and 11
Services for rare and very rare conditions
Interpretation
- For the purposes of this Schedule
(a) an individual is a child if they have not yet attained the age of 18 years old;
(b) an individual is a young person if they are aged 13 years old or over but have not yet attained the age of 21 years old, and
(c) an individual is an adult if they are aged 18 years old or over,
unless, for the purposes of a service specified in this Schedule, the Board, or the person providing such a service pursuant to a commissioning contract with the Board, considers on clinical grounds that an individual should otherwise be treated as a child, a young person or an adult.
Paragraphs
- Gender identity development service for children and adolescents.
- Gender identity disorder services
Note that the word used in paragraph 56 stipulates a ‘service for children and adolescents’ (not just children) and ‘adolescents’ is not defined in the schedule. The NHS Long-term Plan for Mental Health defined an adolescent as having an upper age limit of 25.
As part of the changes to the NHS outlined in Equity and Excellence: Liberating the NHS, and subsequently included in the Health and Social Care Act 2012; commissioning of NHS services will be the responsibility of Clinical Commissioning Groups (CCGs) except where the service is prescribed in legislation. Prescribed services will be commissioned by the NHS Commissioning Board (NHSCB).
Gender Identity Disorder Services are ‘prescribed services’ and so are commissioned by the NHSCB.
The recommendations of the Clinical Advisory Group for Prescribed Services, from June 2012, are published here:
The specific section on Gender Identity Disorder Services is reproduced below:
Abbreviations used:
- CAG = Clinical Advisory Group for Prescribed Services
- TOG = Transitional Oversight Group (the NHS was moving to a new way of working)
- HBIGDA = Harry Benjamin International Gender Dysphoria Association (now renamed WPATH)
Terminology
The ‘four factors’ are:
(a) the number of individuals who require the provision of the service or facility;
(b) the cost of providing the service or facility;
(c) the number of persons able to provide the service or facility;
(d) the financial implications for clinical commissioning groups if they were required to arrange for the provision of the service or facility.
The ‘3rd edition of SSNDS‘ refers to the Specialised Services National Definitions Set (3rd Edition). Here is the relevant excerpt.
22 Specialised Mental Health Services (all ages)
22.4 Gender Identity Disorder Services
Services covered
Gender identity disorders can be described as a desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or the inappropriateness of, the patient’s anatomic sex. Patients may receive hormonal treatment and in some cases surgery to make the body as congruent as possible with the patient’s preferred sex.
In the main this definition covers services for adults. It covers both the mental health services and the surgical services that may be required during the treatment programme as well as treatments post-surgery such as speech therapy or electrolysis.
The service is often provided by two separate health care provider organisations (providing the surgical and the mental health services respectively) working together to provide the full package of care.
All patients receive a first and second mental health assessment and each assessment is carried out by a psychiatrist who is a specialist in the area of gender dysphoria. If accepted onto the programme a care package is drawn up. Initial treatment includes hormone therapy for a period of two years, after which patients are re-assessed by two specialist psychiatrists for possible referral to one of the very few surgical units providing transgender surgery.
Prior to surgery a comprehensive evaluation is carried out which confirms the patient has met the eligibility and readiness criteria set out in the HBIGDA standards including undergoing a successful ‘real life’ experience for a minimum of two years. For men seeking female identity, this includes exclusive adoption of female dress, a female name and full-time employment as a female.
Child and adolescent gender identity development service
This service has been nationally commissioned since April 2009. There is one nationally designated centre.
CAG’s initial view
CAG, informed by the Mental Health Sub-Group, agreed that this service (as set out in the definition) meets the four factors.
CAG were minded to recommend prescription of all services included in this sub-section of the most recent version of definition 22.
View of TOG
There are a limited number of providers of the mental health elements of this service and very few for surgical interventions. Activity is currently recorded locally through bespoke information systems. It is expected that more uniformity will come from the Mental Health Minimum Data Set (MDS) in the near future.
There is some NHS funded surgery which takes place elsewhere in the EU.
CAG’s review
CAG agreed that the services within this section of the definition would be suitable for prescription. CAG recommended to prescribe as per 3rd edition of SSNDS
Further consideration by CAG
It should be noted that the nationally commissioned Gender identity development service for children and adolescents does not cover surgery. As such, and for the avoidance of doubt, we have included children in the description for the proposed regulation.
Suggested text for regulation
Gender Identity Disorder Services
Suggested Description
Gender Identity Disorder Services will include specialist assessment, non-surgical care packages, transgender surgery and associated after care provided by Specialist Gender Identity Disorder Centres. This applies to provision in adults and children.
Resources
The HBIGDA “Standards of Care” upon which the NHS Gender Identity Disorder Service is provisioned.
Evolution
Since the statutory basis for Gender Identity Disorder Services was established, the NHS Specialised Commissioning Service has updated its service specifications.
The current website where these can be found is at: https://www.england.nhs.uk/commissioning/spec-services/npc-crg/gender-dysphoria-clinical-programme/
And the current service specification (from 2016):
https://www.england.nhs.uk/wp-content/uploads/2017/04/gender-development-service-children-adolescents.pdf
This document was intended for review on 30th December 2019 which coincides with the commencement of The Cass Review. This document notes that the NHS Commissioning Board (NHSCB) is now ‘NHS England’.
Note that the NHS changes its publication sites frequently and it has not been possible to establish a fully audited trail that can demonstrate the lawfulness of these new specifications. There appears to be no provision in the original legislation for sorts of revision which have subsequently be made. This is a point for investigation.
Issues Arising
Our Duty is working to establish whether services provided by the NHS which do not adhere to the standards and protocols outlined above are lawful.