Thread by @tribunaltweets

Welcome to the Judicial Review brought by claimants:

Good Law Project (GLP)
2 adults,
2 children
Gendered Intelligence (GDI)

Vs

NHS England & several Trusts

regarding adults & children accessing gender identity/dysphoria services.

10.30 Start

tribunaltweets.substack.com/p/good-law-pro…

The Claimants argue on 6 Grounds:
archive.ph/4Py4L

The case is being heard at High Court in London, before Judge Mr. Justice Chamberlain, with 10 attendees, including Tribunal Tweets, accessing remotely. We have been given permission to live tweet the proceedings.

Abbrevs:

J - Judge Mr. Justice Chamberlain

Claimants:

C1 - a child, acting by her father
C2 - a child, acting by her mother
C3 - Alexander Harvey
C4 - Eva Echo
C5 - Gendered Intelligence, a 'trans led' charity
C6 - Good Law Project Ltd

DL - David Locke KC, counsel of GLP

Respondents:

NHS - NHS ENGLAND

T1 - Tavistock & Portman NHS Foundation Trust

T2 - University College London Hospitals NHS Foundation Trust

T3 - Leeds Teaching Hospitals NHS Foundation Trust

T4 - Devon Partnership NHS Trust

Other

GIDS - Gender Identity Development Services (service for children)

GDC - Gender Dysphoria Clinic (prev. GIC - Gender Identity Clinic)

JR - Judicial Review
GI - Gender Identity
GD - Gender Dysphoria
TG - Transgender
PC - Protected Characteristic
Disc - Discrimination

Note: With the number of participants, and some counsel unknown to us, it may take time for me to ascertain who is who, and who they represent so please bare with me while I find my feet.

Thank you and stay tuned for 10.30.
#OpenJustice

[COURT BEGINS]

The clerk is speaking and stating hearing must not be recorded.

J: some matters I need deal with. As you will have seen by orders I've made, have allowed people to observe via remote. I hope that won't cause difficulty. Conditions to observe have been made clear

DL: thank you for that and that's enabled people to view that couldn't
J: second thing is if people can live tweet and answer is yes. 2 claimants are children and anonymity order has been made and NO Reporter may identify by name or address child concerned or their friend.

J: No contain any info likely to lead to that. Make that clear to all.

(The sound is low for DL, bear with us)

DL: J should have witness statements (WS), hearing bundle and skeleton arguments and authority bundle.

DL: Also single sheet of paper on your desk which sets out conditions patient has to satisfy rather than to ask your lordship to make detailed notes. I can email too

J: I've looked at WS and skeletons, one issue is contentious is relief, what is appropriate relief, if any. I looked at statement of facts and not sure about whether anywhere in papers that an actual draft of declaration

DL: there isn't, you are right. The erm, erm, we can certainly produce erm, a, a, you may be assisted by page 67 of core bundle.
J: want a declaration as there's debate as to whether general declaration or just this cohort?

DL: think we're agreed a single cohort of all referred. Clock starts with each member of cohort
J: are we just talking about treatment for GD, or other?
DL: 150 rare conditions, cohort agreed is concerned with ALL patients, include gender incongurence (GICon)

DL: Ground 1 is about all cohort. Our focus is on Gender incongruent. Declaration be representative, its a duty
J: just on terminology, is gender inconguruence wider concept than DG?

DL: Dr Tose says presenting as, if I can use as explained to me, one who's mind is one gender and body is another. Some people live with it without difficulty, others leads desire to change body to reflect mind.

Many procedures help alleviate stress that brings. Underlying condition is NOT a medical condition or disease but consequences of condition can lead to mental consequences. All examined in WPATh standards.
DL: this is a minefield and we're all trying to get it right.

DL: start my subs. NHS has 18 week duty. One partic group of patients with GIncon. Ground 1 is wide. Those referred to treatment there's 150 rare conditions. More initial points: 1. (Sound gone)

DL: these patients are waiting years while others with suspected cancer within weeks. The impact cannot be underestimated. 126000 people on waiting list for adults and its rising. Not going to take it through detail. Lordship will have seen the anguish of these conditions

DL: damage can be done on endless waiting lists. Second point: matter for government to decide which obligation put on NHS bodies, which are harder rules and soft targets. Series of hard edge laws were suspended during corona virus.

DL: bit not the waiting times. Our position is legal obligation of public body to do something however challenging body may find it. It's required. Duty to act lawfully. Public body is in breach. Reluctance to admit breach is part of reason were here

DL: thirdly, how decisions are made and we invite you to say once permission given onus lies on public body. Its not good enough to say they generally recognise the problem and are taking steps to address. Legal procedural duty of them

DL: we accept right intention between quality and quantity but we say where there's a need to build capacity and increase quantity there's absence of evidence anyone concerned with task knew legal duties.

DL: last point is evidence. Waiting times faced by other patients lies exclusively with NHS Eng and if they seek to answer a case about gender incongruent groups, it and only it is I a position to provide evidence to what's happening to other groups.

DL: Generalised statements wont assist. Those are the points.
Now for facts. The doc set out in WPATH, hearing bundle 497. Page 499 gives the content and difference between gender non conforming (GNC) and GD

DL: not everything recommended by WPATH can be done by NHS. It has the standards. An example is at page 207 in Hearing Bundle (HB)

DL: long waiting times for GIncon patients have been present since 2013. Prior to that arrangement by primary care trusts, huge variation (difficult to hear)

DL: rare and very rare conditions. Idea was everyone would get the same but delays were there from beginning. In bundle 83 is a report from Equality and Human rights commission raising concerns for GIncon persons from 2011

DL: the NHS...under provision, Dr Tose refers to warning given in 2014. They were warned that cultural changes would lead to more people presenting and numbers increased until 2017 and been stable since. Last 5 years, not increase in no. Of referrals. Has been increase in waiting

DL: because capacity has never been able to meet patients referred let alone deal with backlog. NhS has taken steps with funding, waiting has got progressively longer. Present position is children referred to Tavistock in 2018 are just now being seen.

DL: 4 and 5 years waiting for adults. There are now Iver 26000 adults waiting and children, capacity to treat children, service has been decommissioned. New providers have been identified but no info on capacity. Overall picture is this is an area started in 2013 & despite steps

DL: it has got consistently worse since. That's the framework with which this case is brought.
J: on last point. What's said on other side is significant things have happened between 2017 and now. 1 is the pandemic. 2. There's also Judgement in Bell case

J: that led to other enquires which flowed from it and led to reappraisal as to whether form of treatment by Tavi was appropriate and evidence seemed was not.

DL: all of that is correct but Bell had no impact on adult service. Secondly as far as TAvi, problems arose because of single provider, strategic error Cass Review accepts. 3. Issues about Bell were about consent and solved in every... [goes through dates]

DL: decision was parents can give consent and couldn't overide
J: even if child not Gillixk competent, parent could?
DL: it didn't matter if child Gillick competent or not, Parent can. We're not aware of any case whether parent not supportive.

DL: Tavistock could only treat if parent was supportive. But the concerns way Tavi operated led to review
J: cass report?
DL: both. And they've slowed up the process and now NHS has canceled contract with Tavi.

We don't know new services will be up on Times. All of this flows from not putting proper framework in place. We wish NHS well but they've been working on this since 2015 and it just gets worse. Any Qs J?
J: not at the moment
DL: Ground 1 concerns the breach of NHS act

DL: in respect of cohort of patients referred. Authorities Bundle please (AB), section 6E of NHS act. Every time Gov makes changes it goes back and inserts into 2006. Relevnt that there used to be local commissioners, all Judge need be concerned with are services

DL: [reads NHS act 'in a specified period'] that's the power to submit that services will be provided in a specified period. Turn to 11, structure of the act, powers allow designation of services as opposed to being commissioned by locals

DL: [reads NHS act] those regs are 2012 regs and start at page 34
J: before that, 6E is a general provision that both services provided and I think I saw somewhere there are time limits applied to those as well?
DL:yes need a relevant body, same rules apply to all relevant bodies

J: whether it's a rule or target is one of the issues. Well see about that.
DL: yes
[Sound low]
DL: it's a much more interactive and bold process than procurement
J: that might be one of the issues
DL: you are right that the rules we're concerned about have impact on ICBs and NHS

DL: page 36, regulation 2 and series of definitions. Reg 11...
J: are we looking at them?
DL: I don't think we need to, it's common ground
J: give me refs then
DL: certainly

DL: [giving references] a health service provider is anyone entered into contract
J: medical consultant?
DL: someone on GMC consultant register. A health service provider (HSP) is a person who has entered into commissioning contract

[Currently going through regulations. Sound is bad, I'm picking up what I can]
J: the board is NHS England?
DL: yes original name what NHS commissioning board and now formally changed

DL: page 72, which is GIDS and 73, Gender Identity Disorder Services for adults and those presenting with GIncon

DL: part 9 here is concerned with waiting times rules. Para 44 is set of definitions and part 9 includes cohort rules and individual rights. Please note 'appropriate treatment' means first treatment provided to person in response to elected referral.

DL: the elected referrer can be anyone on list but usually GP
J: that's how normally happens?
DL: erm it can go to..
J: could it be psychologist?
DL: no these are services from part 4 of NHS act of PRIMARY services
J: has to be medical practitioner?
DL: could be dentist optician

J: mental health nurse?
DL: no not unless in primary care.

(Missed)
DL: the referral is to the body and a contract not an individual. Date of collection period is a calendar month
J: what's meant by treatment not immediately required at referral?

DL: if you present with a broken arm, or broken hip you can be referred on to orthopeadics as though you have a problem it's not immediate. Difference between mental condition, you have problems and need to be treated by GP, A&E.

'Elected' means selected by patient, to choose to be passed on to refs
J: how do mental health problems get treatment?
DL: good question. Be referred to MH straightaway. But usually put on waiting list sadly.

J: this may require lots of different specialisms, may need mental health, endocrinologist...once you get a GIDS referral, they deal with it all?

DL: child referred to tavi with GIncon and tavi will work out which services child needs. Might be one of 10% put forward for puberty blocking treatment. Only 10%
J: a no. of pathways but can't go down pathway until seen?
DL: yes
J:concerns are waiting times for first assessment?

DL: look at definition of treatment [reads] please note, there's a referral to a physiotherapist, it's a ref to a Trust, suitable medical professional to manage injury and successfully avoid further interventions. Nothing here limits to consultants.

J: to make concrete...could be clinical psychologist?
DL: yes someone working for the body where ref has been made
J: they decide
DL: yes

DL: relevant body must make arrangements that treatment must commence in 18 weeks. A person falls into cohort if body has responsibility. NHS England means you're referred for treatment. There has been start date and that's when referral received by HSP

DL: they have to make arrangements that ensure at least 92% of people commence treatment within 18 weeks
J: 18 weeks?
DL: yes. It's not impossible target as 1 in 12 and half patients standards are met. Take you to our skeleton argument.

DL: essentially there's a monthly cohort, triggered start date and legal duty treatment starts within 18 weeks. Way it works in practice, each NHS provider records date when treatment first provided, then transmitted via computer system and track cohort and numbers

DL: not to be disputed that 92% target is not being met. To show detail go to 201 in HB. This should be a chart, in WS you may have read.
J: yes
DL: we see that Feb 2019, very far column gives RTT % in 18 weeks. In Jan 2019 was 85%, by March 2020 77%. Relevant as pre-pandemic

DL: I accept its better now than at strat of pandemic.
J: so no dispute about figures? They come from NHS England?
DL: yes no dispute. What is the consequences of breach is a potential issue.

We'd say, whatever arrangements NHS made they're not ensuring 92% patients commence treatment within 18weeks.
J: no dispute 92%, no dispute waiting times not being met, dispute is whether gives rise to breach of duty of NHS.
This has never been in dispute from start.

DL: no dispute but not admitted.
[Sound bad]
DL: a lot of data and maybe our researchers...we could...we thought 92% was being breached but wasn't able to find it definitively.
J: right OK

DL: we do want Lord to determine...
J: before then...need to be totally clear about dispute. You say should be declaration that says 60.8% and that's 92% and that's a breach

DL: we say Legal obligation to arrange so that 92% standard is met. NhS has acted unlawfully if its doesn't ensure target is met. NHS say they accept targets not met and ought to be but were not acting unlawfully

J: let's propose you're right, what are they supposed to do about it?
DL: we say for the Gov to decide

J: target applies to everyone. The table says they're not either. If the court granted declaration, what's the point? Where do we go from there? One thing is NHS reallocated some of its money for specialised services but then more difficult for ICBs

DL: we don't underestimate challenges...(missed) we think it should be recognised, asking for more resources, facing up to consequences of acting unlawful. Patients entitled that they deliver in that duty.

DL: declaration would be a matter of substance. Hard edge legal obligation should be recognised for my clients
J: on ground 1, NHS could comply with it without treating a single patient
DL: we accept that

(Missed, )

J: wouldn't it be odd if time limits didn't apply, appreciate only one provider, possible to imagine that providers would take time to decide who patient sees?

DL: precisely. Referral is not a person it's to a trust. Look at wording of 46, these are the rules to stop the clock. Waiting time begins with start date and when any following paras applies. [Reads paragraphs]

DL: 3 is therapy or science intervention which might be thought of as treatment. 4 if person added to transplant list and 5 is admin steps where clock stops.
J: or referred to primary care?
DL: yes. Point is this is the only ref to a consultant

DL: if you don't have ref to a consultant the whole thing doesn't make sense. [Sound bad]

[DL currently talking about private provision]

[DL discussing difference between general referrals and referrals to consultant]

DL: Interface services = triage services, are defined in regulations. This may not help court; as that is not service itself.

DL: There are many hurdles here. But this is a sub-group of referrals, the more serious ones.

[Discussion DJ and J re "specified period"]
[Apologies - sound still very poor]

DL: We are not talking delays caused by pandemic.

DL: Re issue of nature of duty on NHS. It is a "must" duty, it is compelled. Wolverhampton Council case in authorities.

DL: "Commissioning" is a very wide duty.

J: [asking re "ensure"]
DL: Yes - means making it happen.

J: Cd have duty to ensure education. Cd be expressed in such open terms that hard to enforce in a court. But a more defined duty could be a legal duty?

DL: We submit that duties are NHS are specific, and not a target duty.

DL: Case in authorities. I think origin of phrase "target duty". [all read it but not out loud]

DL: There is a measure of judgment for public body on what it needs to do, what is sufficient. Compared to a duty where it is clear exactly what is needed.

DL: See witness statement from doctor, setting out history of failures.

DL: [another case in authorities]

J: are there cases re statutes and so on?

DL: No none

DL: Case I take you to is re distinguishing the two types of duty.

DL: Says some legislation is re target duties. Which recognises statute may not require action on breach. [I think]

DL: But we submit this is not that. Another case to look at. This is re duty of housing.
DL: Also a speech in house of Lords - [again they are reading it but not out loud]

DL: We draw distinction between a focussed duty and a target duty, the latter is about general public good.
J: Not sure that is right. The reason for distinction in [case] is not exactly that.

J: you have accepted [can't hear]
DL: Accept that but [] [I think difference between failing target for some and failing for all cohort is what DL is saying]

J: Whether duty gives rise to individual rights may not be the right question. If you are right then next Q is are your clients entitle to raise the breach. But first Q is relevant.

J: This - "target duty" - is not the first time a concept has sort of grown up over cases. Might be better not to get stuck in Q of whether "target duty".

J: You have agreed with Ms Grey that this does not mean any *individual* can ask for any treatment?

J: And also Q that, even if all you say is correct, does that mean you can come to court about it.

DL: Govt set framework. If public body says "we can't, no resources" that does not remove any legal obligations.

DL: Govt should say "well arrange them then"

J: But declaration you are seeking on ground 1. Will not advance position for the claimants at all. Bcs will not put claimants higher on waiting list.

DL: Competition for resources -
J: Ground 1 is not re that.

DL: We are not looking for greater share of "cake" in ground 1, that is G2, but are talking about the cohort let down bcs NHS England. For all patients referred with rare condition.

J: So G1 a stepping stone to the other grounds.
DL: Yes, Position set out [refers to bundle].

DL: Conscious of time. If we are right that there is focussed legal duty & has been breached. Not sure I can improve on written sub here.

DL: We are asking court to find that this is a legal duty.

J: I asked earlier, said not court's function to [lost] is that what you are doing here?
DL: No -

DL: No, we say if we are right that NHS England has the legal duty they should take it seriously

J: Am sure they do.
DL: So we say, they should arrange their affairs so that can meet it. Competition for resources but must meet duty.

DL: Also: balance between quality and quantity. Not just how many patients, but what quality of service each receives. Legal framework requires those to be balanced.

DL: EG when new treatments are developed there is wide discretion on when/how implemented but must be balanced.

J: This answer concerns me. That quality should be lowered by redirecting resources.

DL: I meant more: huge spending on one patient vs being able to help many more people

J: Very difficult - if aim is to change priorities?
DL: We are asking for policy decisions within rules. We don't set policy but we say, if there are hard legal rules then public bodies must be able to follow them. Add capacity.

DL: So, what are the legal rules, is body in breach, if so what remedy.

DL: [can't hear]
J: You are asking NHS to redirect resources from other areas to this. Which may be sensible but? I should not think too much about your clients per se but think about [can't hear]

DL: [sorry - inaudible]

DL: We say law is clear.
J: Secretary of State could direct? Say does not want NHS to redirect resources so could allocate more?
DL: We are purely concerned with establish legal duty here. Ask court to clarify that.

DL: What happens thereafter to enable legal duty - not up to us.

DL: Ready for ground 2; can start, or break now?

J: Timing?
DL: Quite quick but ...

EG [NHS KC] - [cannot hear her at all]

J: We will break for lunch.

[END OF SESSION]

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