R v North West Lancashire Health Authority, Ex parte A (R v North West Lancashire Health Authority, Ex parte D, R v North West Lancashire Health Authority, Ex parte G, D, Ex parte, G, Ex parte)

A public health authority may set treatment priorities to reflect finite resources and may place a recognised illness low in priority. It must, however, assess the illness and the effectiveness of treatment accurately, and must genuinely consider exceptional cases on their individual merits. A policy which treats an acknowledged illness as akin to a non-medical lifestyle choice, or makes an exception for overriding clinical need practically meaningless, unlawfully fetters the statutory discretion and is irrational. The court may review the legality and reasoning of the policy, but may not substitute its own medical or resource judgment.

Three patients challenged refusals by the North West Lancashire Health Authority to fund referrals to the Charing Cross Gender Identity Clinic for gender reassignment treatment. The Authority's policies placed gender reassignment among low-priority or normally excluded procedures and allowed exceptions only for overriding clinical need or exceptional circumstances.

Hidden J quashed the policies and the individual refusals as irrational and unlawful fetters on the statutory discretion. The Court of Appeal considered whether the Authority had lawfully assessed the nature of transsexualism, the effectiveness of treatment, the competing demands on its resources and the availability of genuine exceptions.

All three appeals were dismissed unanimously. The policies, insofar as they concerned gender reassignment treatment, and the refusals based on them were quashed and remitted for reconsideration.

1. Under the National Health Service Act 1977, as applied to the Authority, the allocation of finite resources and the setting of treatment priorities were matters for the Authority's judgment. It could take account of the seriousness of conditions, treatment effectiveness and cost. The court could review legality and rationality, but could not substitute its own medical or resource judgment.
2. A general policy placing transsexualism low in the order of priorities, with exceptions for overriding clinical need or other exceptional circumstances, was not irrational in principle. Such a policy had to recognise a genuine possibility of exceptions and require each application to be considered on its individual merits.
3. The Authority's policies and evidence did not satisfy those requirements. Although it accepted in the proceedings that transsexualism was an illness, the policies treated it as comparable to cosmetic procedures or lifestyle choices. They failed properly to assess the nature and seriousness of the illness and the effectiveness of recognised treatment. The ostensible exception was practically meaningless because suitability for treatment was not enough and an additional serious mental illness was effectively required. The policy and its application therefore operated as a blanket refusal and unlawfully fettered the discretion.
4. Buxton LJ emphasised that a decision seriously affecting health required substantial consideration of the material, advice and assumptions actually before the Authority when the decision was made. Subsequent evidence could not substitute for that process. The court could not refuse remittal merely because the Authority might lawfully reach the same result after proper consideration.
5. The Convention and European Union arguments were unnecessary to the decision. In obiter observations, the court considered that Articles 3, 8 and 14 of the European Convention on Human Rights and Council Directive 79/7/EEC did not require funding of the treatment in issue.

The Authority was required to reformulate its policy, give proper weight to the accepted medical status of transsexualism, set a lawful priority and provide effective exceptions. The appellant was ordered to pay 66 per cent of the respondents' costs. Leave to appeal was refused.

• Court of Appeal: All three appeals dismissed. The policies and individual refusals were quashed insofar as they concerned gender reassignment treatment and remitted for reconsideration.
• Queen's Bench Division (Hidden J, 21 December 1998): The Authority's policy and refusals of funding were quashed as irrational and as unlawful fetters on its statutory discretion.