Tavistock and Portman NHS Foundation Trust

4. Ms D complains about the lack of care and treatment provided by the Clinic following an accepted referral in January 2022. She says there is a significant waiting time of over four years to get an appointment at the clinic.

5. As a result, she says-

• the delayed waiting time exacerbates her gender dysphoria and mental health challenges, profoundly affecting her life • it has been impossible for her to get an appointment or treatment form the Trust and she has been given no option but to seek private medical support at a significant and unsustainable cost.

6. Ms D is seeking service improvements, specifically for the Clinic to significantly reduce waiting times and improve access to care and a financial remedy of between £3,750-£12,450.

7. 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.

8. 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.

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

10. 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.

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, non-binary and gender fluid people with gender incongruence.

12. Ms D was referred to the Clinic in January 2022. Ms D is still waiting to receive a first appointment.

13. The Good Law Project (a not-for-profit campaign organisation) took legal action against NHS England in 2021, for what it considered to be ‘long-standing, lengthy and unlawful delays to meet the trans community’s healthcare needs’.

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.

Waiting times

18. 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 Ms D. Below we explain how we reached our decision.

19. 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.

20. 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.

21. 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.

22. 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.

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

24. 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 very upsetting for Ms D.

25. 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.

26. 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.

27. 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.

28. 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.

29. We recognise how distressing the delay in treatment has been for Ms D. 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 Ms D’s complaint about Tavistock and Portman Gender Identity Clinic (the Clinic).

2. We do not underestimate the emotional impact the circumstances of Ms D’s complaint continues to have on her.

3. We have carefully considered Ms D’s complaint. Unfortunately, we cannot reach a view on waiting times, as the courts have already considered this issue and we think NHS England is taking reasonable steps to increase capacity to gender identity services.