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

Clinical guidance on gender reassignment surgery does not require clinicians to treat experience acquired in prison as equivalent to experience in the community where the prisoner is expected to be released. The relevant question is whether referral is clinically appropriate in the individual circumstances, including the qualitative nature of the real-life experience and the risks associated with an irreversible procedure. Patient autonomy does not entitle a patient to compel clinicians to make a referral which, on expert clinical assessment, they consider inappropriate. Differential treatment based on the prison environment may be justified where that environment is clinically relevant. NHS bodies are not required to consult patients before clinicians identify clinically relevant factors or to publish a non-existent protocol.

The claimant, a transgender woman serving an indefinite prison sentence, sought a referral for NHS-funded gender reassignment surgery. She challenged what she alleged was a Trust protocol preventing transgender prisoners from being referred while they remained in prison, except where release was impossible.

The Trust denied operating such a protocol and maintained that referrals were determined by individual clinical assessment, with complex cases considered by a multidisciplinary team. The claimant alleged breaches of statutory duties, clinical guidance, public law principles, and Articles 8 and 14 of the ECHR. Permission had been granted for the pleaded grounds, but permission to pursue a new autonomy-based ground was refused when the claimant declined the adjournment required to deal with it.

The central issues were whether an unlawful protocol or policy existed, whether the Trust had misapplied relevant guidance concerning real-life experience, and whether the refusal to refer was unlawful discrimination or an unlawful interference with Convention rights.

1. Disposition. The claim was dismissed. None of the grounds of challenge was made out.
2. No unlawful protocol or secrecy. The evidence established that the Trust had no written or unwritten protocol barring prisoners from referral. Clinicians applied their shared clinical knowledge and experience to individual cases. Section 242 of the National Health Service Act 2006 and the NHS Constitution did not require clinicians to consult patients before identifying clinically relevant factors. There was no lack of transparency because the Trust explained its position in correspondence and evidence.
3. Clinical guidance and real-life experience. The Trust had neither misunderstood nor departed from the WPATH guidance or other relevant guidance. Those materials did not determine whether real-life experience acquired in prison must be treated as equivalent to experience outside prison. The guidance remained clinical guidance, and the expert evidence supported the view that the controlled prison environment might not predict the pressures of life after release.
4. Clinical judgment and autonomy. The decision whether to refer was a clinical decision. Where expert clinicians unanimously considered referral medically inappropriate, the claimant’s wish for surgery did not require them to make the referral. The claimant had produced no evidence contradicting that clinical assessment.
5. Convention rights. The same clinical guidelines applied to prisoners and non-prisoners. Any difference in treatment arose from the clinically relevant difference between the prison environment and life in the community, and was justified on that basis under Articles 8 and 14.