AC, R (on the application of) v Berkshire West Primary Care Trust & Anor

A public healthcare body may classify a treatment as non-core or low priority and refuse routine funding where its view that clinical effectiveness is uncertain is rational. The court must not substitute its own clinical or budgetary judgment. A policy’s use of cosmetic does not necessarily mean aesthetic only. An exceptional-circumstances proviso should be approached sequentially: first consider evidence of significant health impairment and evidence that the intervention would improve health status; then ask whether the circumstances are exceptional. That phrase indicates that successful cases will be a small minority, but supplies no self-contained legal test. A refusal remains lawful where the decision maker rationally finds no evidence of significant health impairment, despite evidence of distress and clinical support.

The appellant, born male and diagnosed with gender identity disorder, had lived as a woman since 1996 and received hormone treatment. Her breast development remained limited, and she sought NHS funding for breast augmentation surgery. The Primary Care Trust treated breast augmentation as a non-core or low-priority procedure under its Gender Dysphoria Policy and Cosmetic Breast Surgery Policy. The application was finally refused in December 2008 after an internal appeals process.

Bean J dismissed the judicial review claim in [2010] EWHC 1162 (Admin). The appeal challenged the rationality and lawfulness of the policies, the treatment of transgender and natal women, and the refusal to find exceptional circumstances.

The Court of Appeal dismissed the appeal. Hooper LJ gave the judgment, with Sedley LJ and the Master of the Rolls agreeing.

1. The Primary Care Trust was entitled to classify breast augmentation as a non-core or low-priority procedure. The evidence of clinical effectiveness was disputed, and the Trust was entitled to conclude that there was no evidence that the operation was likely to improve the appellant’s health. The court could not substitute its own clinical or budgetary judgment. The use of the term cosmetic did not mean merely aesthetic, since the relevant policy included procedures undertaken for practical purposes.
2. The Court also rejected the challenge to the structure of the policies. It was not irrational to require exceptional circumstances for non-core treatment. The policy reflected the conclusions of the earlier leading authority, R v North West Lancashire Health Authority ex parte A, D and G [2000] 1 WLR 977.
3. The court’s discussion of discrimination was expressly unnecessary to the result. Treating unlike cases alike may be discriminatory, as may treating like cases differently. The relevant characteristic depends on the purpose or effect of the distinction. Gender and clinical need could both be relevant, but the court was not the proper body to make clinical or budgetary judgments where the Trust’s criteria and choices remained lawful.
4. The decision letter misstated the exceptional-circumstances proviso. The decision maker should first consider whether there is evidence of significant health impairment and evidence that the intervention would improve health status. If both are present, it should then ask whether the circumstances are exceptional. The phrase indicates that only a small minority of cases are expected to succeed, but does not provide a helpful legal test, with reference to Huang v Secretary of State for the Home Department [2007] 2 AC 167.
5. The misstatement did not invalidate the decision. The committee had concluded that there was no evidence of significant health impairment, despite chronic mild to moderate distress, and was entitled to find that the proviso did not apply. Grounds concerning section 76A(1) of the Sex Discrimination Act 1975 and Articles 8 and 14 of the ECHR did not require determination.

1. Court of Appeal (Civil Division): Appeal dismissed.
2. High Court, Queen’s Bench Division: Bean J dismissed the judicial review application in [2010] EWHC 1162 (Admin).