NHS England found not to be in breach of its statutory duties despite a de facto absence of service for children and very long waiting times for adults for Gender Identity Development Services. A reiteration of the wide discretion to meet “target” duties

NHS England is responsible for arranging for these specialist services (also known as Gender Identity Development Services or “GIDS”). Regulation 45(3) of the NHS Commissioning Board and Clinic Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012/2996 (the ‘2012 Regulations’) requires NHS England to:

“make arrangements to ensure” that not less than 92% of a cohort of patients being referred for non-acute treatment wait less than 18 weeks.

NHS England accepted that Regulation 45(3) applied to those seeking GIDS and that the 18 week target was not being met. However, the key issue for the court to determine was whether the duty under Regulation 45(3)of the 2012 Regulations was a duty to achieve the 18 week standard (“an absolute duty”) or a duty to act with a view to attempting to achieve the 18 week standard (“a target duty”).

The High Court dismissed the claim and found that Reg 45(3) duty was a target duty. Popplewell LJ largely agreed with Chamberlain J’s reasoning (discussed previously in a blog post) and dismissed the appeal for additional reasons.

The Judge first considered the wording of Reg 45(3), in particular, the meaning of the duty “to make arrangements to ensure” the achievement of the waiting time standard. He observed that there is an ambiguity in the use of the word “to”, which could express either purpose or the achievement of a result [44], and, similarly, “making arrangements” is also ambiguous as it is capable of conveying both a target and an absolute duty [46]. He ruled that the word “to” expressed “purpose” which is a duty to undertake an activity – the activity being the making of arrangements [47]. In the context of the appeal, the Respondent, NHS England, is not a healthcare provider; rather, it commissions healthcare services by planning, implementing, supervising and monitoring the performance of those services by others [47].

Thus, NHS England’s function is one of arranging, and it cannot achieve a waiting time standard itself by the provision of services [47]. Whether those arrangements achieve the waiting time standard is not in NHS England’s hands as there are many vicissitudes which may preclude the result being achieved which are beyond its control nor could NHS England reasonably anticipate their occurrence, severity or impact on waiting times [48]. In addition to the list of factors identified by Chamberlain J, and apart from the competing demands on resources, Poppelwell LJ identified policy factors which could affect waiting times, such as consideration of patient safety, treatment outcomes, staff training and working conditions, long term planning, regional capacity, and buildings and equipment [50].

In light of these factors, the Judge concluded that Reg 45(3) could not be an absolute duty as NHS England may be unable to fulfil this duty through no fault of its own because of factors inherent in the nature of the provision of a service within a healthcare system [51; 59; 60].

The Judge also considered the question of whether Reg 45(3) duty was owed to the population as a whole or an individual so as to allow individual claimants to bring a claim for the breach of the waiting time standard. The Judge held that Reg 45(3) duty was not a duty owed an individual as the achievement of the waiting time standards was not in the hands of NHS England [62]. There may be instances where an individual may still be waiting to get the treatment 18 weeks after referral even though 92% of the referred patients had been seen or had an initial appointment. The delay could be attributable to a host of complex resource allocation, policy and patient safety reasons as discussed. He further held that as Reg45(3) is a general duty to the population, it is not enforceable as an individual duty, which further supports the conclusion that Reg45(3) is a target duty, and not an absolute duty [52].

Fiona Scolding KC is a barrister at Landmark Chambers.