Key Facts
- •Two children and two adults, all identifying as a gender different from their natal sex, appealed lengthy waiting times for NHS gender identity services.
- •The appeal concerned whether NHS England's duty under Regulation 45(3) of the 2012 Regulations is to achieve the 18-week waiting time standard or to act with a view to achieving it (a 'target duty').
- •The appeal also questioned whether the duty applies only to those referred for consultant-led treatment.
- •NHS England's performance in meeting the 18-week standard fell significantly short of the 92% target.
Legal Principles
Interpretation of statutes and regulations.
Bennion Bailey and Norbury on Statutory Interpretation, R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255, R (PACCAR Inc) v The Competition Appeal Tribunal [2023] UKSC 28, R(D) v Secretary of State for Work and Pensions [2010] EWCA Civ 18; [2010] 1 WLR 1782.
Target duty vs. achievement duty.
R v Inner London Health Authority ex pte Ali (1990) 2 Admin LR 822, R (Ahmad) v Newham London Borough Council [2009] UKHL 14; [2009] 3 All ER 755, R (on the application of Nash) v Barnet London Borough Council [2013] EWHC 1067 (Admin), R (on the application Williams) v Caerphilly County Borough Council [2020] EWCA Civ 296, R (Tandy) v East Sussex County Council [1998] AC 714.
Correcting drafting mistakes in legislation.
Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, R (SSE Generation Ltd) v Competition and Markets Authority [2022] EWCA Civ 1472.
NHS Constitution and its effect on legal rights and pledges.
Health Act 2009, s.2
Outcomes
The appeal was dismissed.
The court held that the duty under Regulation 45(3) is a target duty, requiring NHS England to make arrangements to meet the 18-week waiting time standard, not to achieve it absolutely. The court also found that the duty applies only to referrals for consultant-led services.
Regulation 45(3) duty is a target duty, not an achievement duty.
The wording 'make arrangements to ensure' allows for a degree of flexibility given the complexities of the NHS and external factors beyond NHSE's control. The duty is owed to the population as a whole, not individuals, and the 8% margin allows for some failure to meet the standard.
Regulation 45(3) applies only to consultant-led services.
The court interpreted the definition of 'eligible referrer' and considered various regulations (46, 47, 48, 49) to conclude that the 18-week waiting time standard was intended to apply only to consultant-led services, aligning with the NHS Constitution and RTT Rules Suite.