Devon Partnership NHS Trust

5. Ms I complains about the long waiting list to be seen at the gender identity clinic at the Trust since her GP referred her in February 2017. She did not have a first appointment in the four years she was on the Trust’s waiting list. She also complains NHS England has not effectively managed to reduce wait times for gender identity clinics.

6. Ms I says the waiting time has been extremely mentally and physically distressing. She has been diagnosed with moderate levels of psychological distress, moderately severe depression, and moderate anxiety, in part due to the time she was waiting at the Trust. She says she has had to pay for private treatment from 2017 onwards, including gender reassignment surgery in 2022. She has sometimes struggled to control the effects of her medication. She told us her GP had to transfer her to another clinic as they had no idea of when she would be seen and she has still not had a first appointment.

7. Ms I would like the Trust and/or NHS England to apologise and provide a financial remedy to reflect the costs she has taken on herself while she has been waiting. She has queried whether the Trust should fund private treatment.

8. 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.

9. 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 sometimes identify as transgender. Many, but not all, also experience gender dysphoria. Gender dysphoria is a feeling of discomfort or distress people experience as a result of gender incongruence.

10. People 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 their chest and genitals.

11. NHS England has commissioned specialised services to diagnose and alleviate gender dysphoria. NHS gender identity clinics offer assessments, treatments, support and advice to transgender people, non-binary people (who have neither a male nor female gender identity) and gender fluid people (whose gender identity is not fixed) with gender incongruence.

12. Ms I’s GP referred her to the Trust’s gender identity clinic in February 2017. She told us she first approached her GP for them to refer her in July 2016. In May 2021 her GP referred her to another NHS service as there was uncertainty over the wait times.

13. Ms I first approached us in July 2021. At the time the Good Law Project (a notforprofit 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.

14. 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. Ms I then contacted us the next month.

Trust waiting times

17. Ms I’s complaint is about the length of time spent waiting for an initial appointment at the Trust’s gender identity clinic. We appreciate this wait has significantly affected her mental health and we are sorry to hear how distressing this wait has been for Ms I.

18. 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 into account the NHS constitution in their decisions and actions.

19. The NHS constitution says 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 providers if this is not possible.

20. 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, nonemergency service. This is known as the 18-week referral-to-treatment standard.

21. During legal action from the Good Law Project, the High Court determined that the 18-week standard set out in the Regulations is a target duty which applies to this group 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 through the courts for breaches of the standard.

22. The Law explains we cannot investigate issues that have already been, or could have been, considered by the courts. While this legal action was taken against NHS England not this specific trust, as all gender identity services are centrally commissioned by NHS England we believe this applies to the whole of this complaint.

23. We are bound by the decision made by the courts, and we are therefore unable to hold the Trust to account for not meeting waiting times for patients accessing gender identity clinics. We appreciate this is not the outcome Ms I is hoping for and we are sorry for any further distress this may cause.

NHS England

24. 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 do understand that unfortunately NHS England is not in a position to provide care and treatment to gender dysphoria patients as quickly as it would wish. We appreciate this broader situation has a significant impact for Ms I and her ability to quickly access this care and treatment.

25. As part of its complaints correspondence the Trust referred Ms I’s complaint to NHS England. In its response, the Trust explained gender identity services are commissioned nationally. It wrote it had kept NHS England informed of the challenges it was facing. It explained there were national recommendations it was putting in place which aimed to improve equity of access and reduce waiting times.

26. It also explained NHS England, as the commissioner, is responsible for finding a service that would be able to see the patient in a shorter time if at all possible.

27. The Regulations do 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.

28. NHS England responded that it was very sorry for the delay Ms I experienced in accessing treatment at the Trust. It explained that nationally the demand for these services had increased rapidly. It had increased the funding available but was limited by current capacity and availability of specialist clinical staff who could deliver these services. It said unfortunately all providers were experiencing difficulties recruiting staff. It explained this specific service at the Trust was working with a very high demand whilst maintaining its excellent reputation. It said historically this service has had a shorter waiting list but in recent years there has been a significant increase in referrals outside of its usual catchment area in line with its national commissioning approach.

29. NHS England explained that, nationally, surgical and pre-surgery services had been impacted by COVID-19 but there was now a new national service specification and clinical protocol which should streamline the treatment pathway and reduce delays. National procurement of gender reassignment surgery has meant a few new providers can offer services now. Locally, NHS England explained it was working with the Trust to change services to meet the new service specification to increase capacity and reduce waiting times.

30. Ms I asked NHS England about funding private care and treatment. NHS England replied that it could not assist in this request as it could only support referrals to services it commissioned.

31. We understand that all NHS gender identity clinics (including those with 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 difficult a situation this is for Ms I with the effect the delays are having on her.

32. As NHS England wrote, we are aware that the capacity of NHS gender dysphoria services have been under pressure due to a rising demand for services and lack of sufficient number of specialist practitioners to deliver the service. And this pressure is steadily increasing over time.

33. Our Principles say organisations 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.

34. We met with NHS England to discuss what was happening to improve capacity in gender identity services. We looked at the information it provided, to see what it has already done, and the steps it is now taking to increase capacity in this area. Some of these NHS England has already shared with Ms I.

35. These include:

• 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 granting 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 of gender identity services for children and young people • drafting terms of reference for an independent review of gender identity services for adults.

36. The information above 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.

37. We have seen no indications of failings in NHS England’s approach towards gender identity service capacity and waiting lists. We believe it is using its resources to manage demand for gender identity services and improve access to gender identity clinics, in line with our Principles.

38. We have therefore decided to take no further action on Ms I’s complaint.

39. We do wish to note the impact this overall issue with capacity the NHS is facing for gender dysphoria care is having on Ms I. We are sorry if this decision adds to her distress. We do hope this information provides some reassurance of the work NHS England is doing to improve how gender identity services will operate and to increase national capacity.

1. We have carefully considered Ms I’s complaint about Devon Partnership NHS Trust (the Trust) and NHS England. We understand from what she has told us how challenging the delays have been and acknowledge how important this complaint is. We are sorry to hear how difficult a time this has been for her.

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

3. We reviewed what the Trust told Ms I, 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.

4. We have therefore decided we do not need to take any further action on the complaint. We understand this decision may be disappointing to Ms I, we are sorry that we cannot help her any further in this matter.