Medical Negligence
By Conal McGarrity
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Legal Action Threatened Over NHS Failure to Provide Treatment for Transgender Patients

A suspension in place for transgender patients seeking a transition at Brackenburn Clinic at Knockbracken/ St Peter’s Andrology Centre was lifted on on 3rd May 2018 following pre-action correspondence from Conal McGarrity. It is the only gender identity public clinic available to transgender patients in Northern Ireland.

The NHS is under a legal duty to assess patients, and if diagnosed as transgender they are required to support the patient through the transition and organise and carry out the required surgery. A transgender patient is to obtain a first opinion, completed by a Consultant Psychiatrist within the gender service and then obtain a second opinion, external and independent of the Trust gender service, with a validity period of one year. An application should be made to the Extra Contractual Referral (ECR). This is an application for funding to the Regional Health and Social Care Board. Following confirmation of funding and completion of the second opinion a referral should be made to St Peter’s Andrology Centre.

In addition to the issues with the availability and provision of the treatment the NHS does not offer fertility treatments to transgender patients as standard. Transitioning can lead to fertility loss, but many patients are not offered a chance to have eggs or sperm stored. A watchdog is threatening NHS England with legal action if it does not begin offering fertility treatments to transgender patients as standard. The Equality and Human Rights Commission said this is “outdated” discrimination as patients with other conditions routinely get that option. According to the EHRC, the decision on who should be offered the extraction and storage of eggs and sperm – known as gamete extraction and storage – falls to individual Clinical Commissioning Groups (CCGs).”But many choose not to [offer this service]” to transgender patients, the watchdog said. The EHRC sent a pre-action letter to NHS England on Friday 3rd August, which it said was the first step towards a judicial review and asked them to make gamete extraction and storage available to anyone having treatment for gender dysphoria.

The NHS defines gender dysphoria as a condition where a person experiences discomfort or distress because there is a mismatch between their biological sex and gender identity. Rebecca Hilsenrath, chief executive of the EHRC, said: “Our laws and our values protect those who seek treatment for gender dysphoria. “This means that where appropriate, treatment should be made available in order to ensure that access to health services is free of discrimination.”A choice between treatment for gender dysphoria and the chance to start a family is not a real choice.”

An NHS England spokesperson said: “Decisions on which services are commissioned by NHS England are taken by ministers based on advice from an independently chaired panel of health experts and patient representatives, using a process set out in primary legislation.” If you have been affected by any of these issues we advise you to seek legal advice. Our solicitors have a wealth of experience in the areas of medical negligence and judicial review and can help protect your rights.

The EHRC believes it is within NHS England’s legal powers to make fertility services for transgender patients a “core service”, which would mean all CCGs should offer it. But the NHS says a decision by ministers is needed to allow this to happen. These failures have caused patients serious trauma. Their lives have effectively been put on hold until the issues are resolved. Unfortunately it appears that due to Government intransigence that legal action is now the only avenue.

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