Cumbria, Northumberland, Tyne And Wear Area Team

6. Mrs K complains about:

• the long waiting time to be seen in the gender identity clinic at the Trust • that NHS England is not ensuring that gender identity services are delivered in line with the 18-week referral-to-treatment standard and not arranging for suitable alternative provision when the 18-week referral-to-treatment is not met.

7. As a result of her complaints, Mrs K says this has affected her emotional wellbeing and has left her feeling suicidal. She says she has found it hard to move on with her life. She also says she has incurred financial costs in funding private treatment.

8. Mrs K wants the NHS to reimburse the money she has paid for private treatment and to pay for future private treatment (including hormone replacement therapy (HRT – treatment used to relieve symptoms of the menopause), hair removal treatment and gender reassignment surgery, until she has an appointment at the gender identity clinic.

9. Transgender is a term that describes people whose personal sense of being male or female (their gender identity) differs from the sex they were assigned at birth. Non-binary describes people whose gender identity is neither male nor female. Gender fluid describes people whose gender identity is not fixed.

10. Gender incongruence describes a persistent discrepancy between a person’s gender identity and the sex they were assigned at birth. People who have gender incongruence often identify as transgender or non-binary. Many, but not all, also experience gender dysphoria.

11. Gender dysphoria is a feeling of discomfort or distress people experience as a result of gender incongruence.

12. People with gender incongruence may seek medical interventions to help align their primary and secondary sex characteristics with their gender identity. This can include hormone therapy medications, voice therapy, laser hair removal, and surgical procedures to the chest and genitals.

13. NHS England has commissioned specialised services to diagnose and alleviate gender dysphoria. NHS Gender identity clinics offer assessments, treatments, support and advice to transgender, non-binary and gender fluid people with gender incongruence.

14. Mrs K’s GP referred her to the northern regional gender dysphoria service at the Trust (which provides gender identity clinics) in September 2018. Mrs K is still waiting to receive a first appointment.

15. Mrs K first brought her complaint to us about waiting times in 2021. At that time, Good Law Project (a not-for-profit campaign organisation) was taking legal action against NHS England for what it considered to be ‘long-standing, lengthy and unlawful delays to meet the trans community’s healthcare needs’. We decided we could not consider complaints about waiting times until the courts had considered Good Law Project’s claim.

16. The High Court considered Good Law Project’s claim in January 2023. The decision was appealed, and this was dismissed by the Court of Appeal in July 2023. Mrs K referred her complaint back to us the same month.

Waiting times

19. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong. We recognise this has been a difficult time for Mrs K and explain the reasons for our decision below.

20. The NHS Constitution sets out the principles and objectives of the NHS, and the rights and responsibilities of the various parties involved - including patients. All NHS providers are legally required to take account of the NHS Constitution in their decisions and actions.

21. The NHS Constitution states that patients have the right to access certain services commissioned by NHS bodies within maximum waiting times, or for the NHS to take all reasonable steps to offer a range of suitable alternative providers if this is not possible.

22. The Regulations set out what services the NHS must provide. It includes that 92% of patients should start treatment within 18 weeks of being referred to a consultant-led, non-emergency service. This is known as the 18-week referral-to-treatment standard.

23. When the High Court heard Good Law Project’s claim, it determined that the 18-week standard set out in the Regulations is a target duty which applies to cohorts of patients, rather than an absolute duty owed to individuals. The Court of Appeal said this means there is no right to an individual remedy for breaches of the standard through the courts.

24. The Law explains that we cannot investigate issues that have already been, or could have been, considered by the courts.

25. We are bound by the decision made by the courts, and we are therefore unable to hold NHS England to account for not meeting waiting times for patients accessing gender identity clinics. We acknowledge this will be disappointing for Mrs K.

Alternate provider

26. Mrs K has explained that her complaint hinges on Article 5 of the NHS Constitution that explains if an NHS provider cannot provide care, then the patient may choose a private provider on the condition that the NHS has a contract with the provider. She also asked to be referred to ‘YourGP’ in Edinburgh to provide a second opinion.

27. In its complaint response, the Trust told Mrs K that gender identity services are nationally commissioned, and unfortunately there are waiting time pressures within all gender services across the country. It also explained the commissioner (NHS England) is responsible for finding a service who would be able to see a service user in a shorter time. It said at present there are no services for gender dysphoria treatment without significant waiting times. It also said NHS England are looking nationally, at what can be done to reduce waits across all services.

28. The Regulations also include that, when the referral-to-treatment standard cannot be met, the commissioner (in this case NHS England) must take all reasonable steps to offer a suitable alternate provider, so long as the alternative provider is able to deliver treatment more quickly.

29. In 2021, NHS England told Mrs K in order to increase its capacity, it had established three multi-disciplinary gender dysphoria services. It also said all the gender services NHS England commission, have the same waiting times so a referral to an alternative commissioned provision would not resolve the issue. It said ‘YourGP’ in Edinburgh is not a service that is commissioned by NHS England to deliver the national service specification.

30. We understand that all NHS gender identity clinics (including ones that have a contract to provide NHS care) are currently not meeting the Regulations 18-week referral to treatment standard. And this means there is no alternate NHS provider able to deliver treatment more quickly. We appreciate how distressing these delays must be for Mrs K.

31. We are also aware that the capacity of NHS gender dysphoria services has been under pressure due to a rising demand for services and a lack of sufficient numbers of specialist clinical practitioners to deliver the service. And this pressure is steadily increasing over time.

32. Our Principles say that public bodies must comply with the law and have regard for the rights of those concerned. It also says that where public bodies are subject to statutory duties, published service standards or both, they should plan and prioritise their resources to meet them.

33. We met with NHS England to discuss what was happening to improve capacity in gender identity services. We also looked at information it provided, to see what it has already done, and the steps it is now taking to increase capacity in this area. This includes:

• setting up a programme board for gender identity services to lead the configuration and delivery of gender identity services, which takes independent expert advice • publishing service specifications for adult surgical and non-surgical treatments • awarding new contracts for the provision of surgical and non-surgical treatments, including commissioning five new, pilot gender identity clinics in primary care and sexual health service settings at regular intervals between 2020 and 2023, which are accessible to patients already waiting to be seen • recently granted two of the pilots, permanent contracts to continue to provide gender identity services • funding training programmes to try to increase the numbers of specialists who can provide gender identity services, including in the new, pilot settings • establishing a national referral support service to help individuals choose surgical providers (the next phase being to establish a quality framework to allow surgical providers to report clinical indicators, including outcome and experience measures) • funding the UK’s first accredited post graduate training course in gender dysphoria medicine. The first cohort of trainees began the course in March 2020 • funding surgical fellowships, and the first training post for urological surgery (male-to-female genital surgery) which began in 2022 • commissioning (in partnership with NHS improvement) the independent review gender identity services for children and young people • drafting terms of reference for an independent review of gender identity services for adults.

34. The work we have carried out, indicates NHS England is taking steps to increase capacity in gender identity services. This includes commissioning new pilot gender identity clinics and granting permanent contracts, to continue providing the service, as well as working to increase the number of specialists working in the field.

35. Given the action NHS England is taking, we think this is in line with our Principles highlighted above. This is because NHS England is currently using its resources to manage demand on gender identity services and improve access to gender identity clinics.

36. There are no indications of failings and we have decided to take no further action on Mrs K’s complaint.

37. We appreciate our decision may be upsetting for Mrs K and we are sorry about this. We hope the work that NHS England is doing, has an impact on how future gender identity services are delivered and accessed.

1. We have carefully considered Mrs K’s complaint about the Trust and NHS England. Having done so, we have seen no indication that anything went seriously wrong.

2. We acknowledge how important Mrs K’s complaint is to her and understand from what she has told us, how challenging the delays have been. We are sorry to hear how this has impacted on her.

3. We cannot reach a view about waiting times to be seen at a gender identity clinic, as the courts have already considered this issue.

4. We reviewed what the Trust told Mrs K, and gathered information from NHS England in relation to the work it is carrying out in gender identity services. As a result of this, we think NHS England is taking reasonable steps to increase capacity to gender identity services.

5. We have therefore decided we do not need to take any further action on the complaint. We understand our decision may be disappointing to Mrs K and we are sorry if this adds any further distress to an already challenging time.