KK, R (On the Application Of) v Tavistock And Portman NHS Foundation

Factual and Procedural Background

The Plaintiff is a 60-year-old transgender woman and a serving prisoner who seeks a referral for NHS-funded gender reassignment surgery ("GRS"). She was convicted in 2006, sentenced as a man for making indecent photographs of children, and is subject to an indefinite sentence for public protection with a tariff of 30 months less 317 days. She currently lives in open prison conditions following a Parole Board recommendation in August 2017.

In February 2019, the Plaintiff filed a claim challenging the Defendant's alleged Protocol, which purportedly bars transgender prisoners (except those with no possibility of release) from being referred for GRS. The Plaintiff sought declarations that the Protocol is unlawful and an order quashing it.

The Plaintiff contended the Defendant, Company A, acted unlawfully in adopting and applying the Protocol in six respects, including breaches of statutory duties, irrationality, unlawful fettering of discretion, interference with human rights (Articles 8 and 14 ECHR), and lack of transparency.

The Defendant denied the existence of any such Protocol, asserting that decisions on referrals for GRS are made on an individual clinical basis.

Permission to challenge the Protocol was granted by Judge Waksman in July 2019 on an arguable basis.

Subsequently, the Plaintiff sought to introduce a new ground of challenge regarding the lawfulness of clinicians refusing referrals based on concerns about future regret, but this was refused due to procedural and timing issues.

The factual background includes extensive clinical assessments by Company A’s clinicians over several years, reflecting concerns about the Plaintiff’s history, prison environment, and suitability for surgery. The Plaintiff’s request for surgery referral was not granted, with clinicians emphasizing the importance of living outside prison in the acquired gender role for a minimum period before surgery is considered appropriate.

The Plaintiff also made complaints to NHS England and the Parliamentary and Health Service Ombudsman, both of which upheld the clinical approach taken by Company A.

The proceedings were instituted in February 2019, and the Defendant provided detailed witness statements explaining the clinical decision-making process and denying any rigid protocol barring referrals for prisoners.

Legal Issues Presented

1. Whether the Defendant's Protocol barring transgender prisoners from referral for GRS is unlawful on statutory, procedural, and human rights grounds.
2. Whether the Defendant breached duties under the National Health Service Act 2006, the Health Act 2009, and the NHS Constitution by adopting the Protocol without patient involvement or transparency.
3. Whether the Protocol departs unlawfully from the World Professional Association for Transgender Health ("WPATH") Guidance.
4. Whether the Protocol is irrational and unlawfully fetters clinical discretion by applying a blanket bar without individual assessment.
5. Whether decisions made under the Protocol unlawfully interfere with the Plaintiff’s rights under Articles 8 and 14 of the European Convention on Human Rights.
6. Whether the Defendant’s clinical decision-making process was lawful and transparent.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant acted unlawfully by adopting and applying a Protocol barring transgender prisoners from referrals for GRS without patient involvement or transparency.
• The Protocol departs from WPATH Guidance, which prohibits discrimination against prisoners in access to GRS.
• The Protocol is irrational, lacking peer-reviewed evidence and improperly applying risk assumptions to all transgender prisoners.
• The Protocol unlawfully fetters clinical discretion by permitting no exceptions or individual risk assessment.
• The Protocol and decisions under it unlawfully interfere with the Plaintiff’s Article 8 and 14 rights.
• The decision-making process lacked transparency and was based on an unlawful Protocol.
• The Plaintiff contended that risk decisions regarding surgery should be made by the patient, not clinicians.

Defendant's Arguments

• The Defendant denies the existence of any such Protocol; decisions on GRS referrals are made on an individual clinical basis.
• The Defendant contends that the clinical approach aligns with WPATH Guidance and relevant clinical standards.
• The Defendant argues that the prison environment is materially different from the community, affecting the assessment of readiness for surgery.
• The Defendant submits that the clinical discretion exercised was lawful, rational, and transparent.
• The Defendant opposed the new ground of challenge regarding risk-based refusal of referrals on procedural and substantive grounds.
• The Defendant maintains that no unlawful interference with human rights occurred, as any difference in treatment is clinically justified.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the evidence concerning the existence of the alleged Protocol and found that no written or unwritten Protocol barring referrals for transgender prisoners existed. The Defendant’s clinical decisions were guided by professional judgment and clinical standards rather than a rigid policy.

The Court considered the statutory framework, including the NHS Acts, the commissioning responsibilities of NHS England, and relevant clinical guidance such as the WPATH Standards of Care and the Royal College of Psychiatrists guidelines. It found that these guidelines do not prohibit consideration of the prison environment as a relevant clinical factor.

The Court accepted the Defendant’s evidence that the prison environment is materially different from the community, and that living in prison does not equate to the "real life experience" (RLE) required before GRS referral, especially for prisoners who may be released. The Court noted that the clinical judgment to withhold referral until the Plaintiff had lived outside prison for a minimum period was rational and supported by expert opinion.

The Plaintiff’s arguments that the Protocol was unlawful, irrational, or breached human rights were rejected. The Court held that the difference in treatment was justified by clinical considerations relevant to the Plaintiff’s circumstances.

The Court found no breach of transparency or patient involvement duties under the NHS Act or NHS Constitution, as the clinical decision-making process was sufficiently explained and no secret policy existed.

The Court also declined to permit the Plaintiff to pursue the new ground that risk decisions should be patient-led rather than clinician-led, due to procedural fairness and timing.

Holding and Implications

The Court DISMISSED the Plaintiff’s claim in its entirety.

The direct effect of this decision is that the Defendant’s clinical approach to referrals for gender reassignment surgery in the context of transgender prisoners, including the consideration of the prison environment and the requirement for real life experience outside prison, is lawful and rational. No unlawful Protocol or policy was found to exist or to have been applied.

No new legal precedent was established; the decision affirms the deference to clinical judgment and the applicability of existing guidance to complex cases involving institutionalized patients.