NHS England CCG Bulletin : no247; 25 October 2018 (online)
Full text:
A legal challenge has been brought against NHS England by the Equality and Human Rights Commission (EHRC). The challenge relates to the commissioning and provision of gamete retrieval and storage services for transgender patients. The EHRC argues that:
- NHS England wrongly interprets the words “Gender Identity Disorder Services” at paragraph 57, Schedule 4 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”) as not including gamete retrieval and storage, and has thereby misdirected itself as to its obligation to provide that service to transgender patients;
- NHS England has unlawfully failed to exercise its power under s.2 of the National Health Service Act 2006 (“the 2006 Act”), in the light of its obligations under domestic and European equalities provisions, to provide gamete retrieval and storage to transgender patients;
- NHS England has unlawfully failed to exercise its power to issue guidance to clinical commissioning groups (“CCGs”) to discourage them from unlawfully failing to arrange for the provision of gamete retrieval and storage to transgender patients. NHS England’s position is that the commissioning of gamete retrieval and storage services is appropriately the commissioning responsibility of CCGs. Responsibility for developing clinical commissioning policy in this area extends as much to trans patients as it does to patients, for example, undergoing chemotherapy. When formulating clinical commissioning policy in this, and indeed all areas of commissioning responsibility, CCGs are under a number of legal duties including the Public Sector Equality Duty.
- NHS England's position is that no additional statutory guidance on this issue is required. However, in light of this challenge, you may wish to review any commissioning policies you have in place in this area and how they apply to different groups of patients.
