Susan Evans, R (on the application of) & Anor v Gender Plus Healthcare Limited & Ors

In public law, a matter is a mandatory relevant consideration only if it is so obviously material that it would be irrational for the decision-maker to omit it. The decision-maker determines the weight to give it. A decision cannot be impugned for failing to consider statements or circumstances that did not exist when it was made. Nor must a regulator pursue further inquiries where the information available and inquiries undertaken provide a rational basis for the decision. When assessing whether a regulated healthcare service is safe, the regulator may use another provider’s process as a benchmark without requiring exact replication. It may focus on whether alternative arrangements address the same risks and objectives. Permission to appeal was refused.

Susan Evans and XX sought permission to appeal from the High Court’s dismissal of their judicial review claim against decisions of the Care Quality Commission. The first decision registered Gender Plus Healthcare Limited to provide regulated treatment, including cross-sex hormones to 16- and 17-year-olds. The second decision followed a review and assessment of that regulated activity. The appellants alleged that the Commission had failed to consider the founder’s views, changes in NHS policy and practice, and differences between the provider’s and NHS multidisciplinary processes. The central issues were whether those matters were mandatory relevant considerations, whether the Commission knew or ought to have known of them, and whether further inquiries were required. The High Court decision was reported at [2025] EWHC 2015 (Admin).

Decision

Lewis LJ refused permission to appeal on all three grounds. None had a realistic prospect of success, and there was no other compelling reason for an appeal to proceed.

1. Mandatory considerations. Whether a matter must be considered depends on whether it is so obviously material that it would be irrational, in the public law sense, to omit it. The weight given to the matter is for the decision-maker. That approach was stated by the Supreme Court in R (Friends of the Earth Ltd.) v Secretary of State for the Home Department, [2020] UKSC 52, and applied in this Court in Keep Chiswell Green v Secretary of State for the Home Department, [2025] EWCA Civ 958.
2. Dr Kelly’s views. There was no categorical rule that personal or ideological views could never be legally relevant. However, the statements relied upon were made after the registration decision. The Commission had met Dr Kelly and considered the information it held. During the later assessment it interviewed him and discussed the Cass Review. The statements had not been drawn to the Commission’s attention, and the further inquiries undertaken were not irrationally deficient.
3. NHS processes and statutory safety requirements. The Commission’s central task was to decide whether the regulated activity complied with the regulations made under sections 20 and 12 of the Health and Social Care Act 2008, including the requirement that care and treatment be provided safely. The Commission could assess GPH’s arrangements by reference to the objectives and risks addressed by NHS processes without requiring exact structural replication.
4. Grounds 2 and 3. The Commission knew of the relevant differences between GPH and NHS arrangements and gave them full and proper consideration. It was not irrational to decline further investigation into NHS internal arrangements. The April 2024 advice to adult clinics did not pause treatment for 16- and 17-year-olds; it directed that such patients be treated through the new children’s service. No ground therefore disclosed an arguable flaw in either decision.

• High Court (King’s Bench Division): Eady J dismissed the judicial review claim concerning the Care Quality Commission’s registration and later assessment decisions. The decision is cited as [2025] EWHC 2015 (Admin).
• Court of Appeal (Civil Division): Lewis LJ refused permission to appeal on all three grounds.