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positive obligations?

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  • Question for the legal minds and especially sweet Cristine's:

     

    is the UK NHS under a positive obligation to provide sex change aka genital surgery speedily and without needing proof of need as per the ECHR verdicts in Van Kuck v Germnay 2003, L v Lithuania 2007 and Schlumpf v Switzerland 2009?

     

    I say yes.

    This post was edited by Former Member at February 16, 2012 6:30 PM GMT
      February 16, 2012 6:29 PM GMT
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  • I'm not up on German federal law, and it depends on what you mean by ''without needing proof of need'' Its my considered opinion regardless of any EHRC rulings, that once you have been diagnosed and accepted for treatment, There is an obligation for PCT not to delay ongoing treatment to a satisfactory conclusion'' obviously dependant on a patients health and that they the patient followed the guidelines and requirements laid down by the GRA to qualify. Appeals Court: N-W Lancashire Health Authority v A, D and G Full text of the judgment of the Appeals Court July 29th, 1999 However, this was the first challenge to such a policy where the issue was decided by a court — with a judgment in favour of the three trans women applicants, issued by the High Court in December 1998. The Health Authority later appealed, and in July 1999 the Appeals Court upheld the High Court ruling. The case received extensive press coverage. The result of tthis case is that it is now illegal for a Health Authority to impose a blanket ban on funding medical treatment for the purposes of gender reassignment. There are several High court rulings ''precedents'' pre GRA It was these cases that the UK was forced to draft and adopt a gender recognition act by the EHRC.

     

      Government Announcement on Transsexual People by Rosie Winterton MP Parliamentary Secretary at the Lord Chancellor's Department 13 December 2002 Background On 11 July the European Court of Human Rights delivered its judgments in the cases of Goodwin -v- The United Kingdom and I -v- The United Kingdom. The Court found that the United Kingdom had breached the Convention rights of these two transsexual people, under Articles 8 and 12 (the right to respect for private life and the right to marry). In answer to Questions before the Parliamentary recess, colleagues and I made clear the Government's commitment to announce later in the year how we proposed to implement the rulings. The Interdepartmental Working Group, whose initial report the then Home Secretary presented to Parliament in July 2000, had recently been reconvened to give further consideration to the implications of giving transsexual people full legal recognition in their acquired gender. In light of the Goodwin and "I" judgments, the Group's terms of reference were expanded and it was tasked to report in October. Ministers have now collectively considered the recommendations received from officials. Legislation We will aim to publish, in due course, a draft outline Bill to give legal recognition in their acquired gender to transsexual people who can demonstrate that they have taken decisive steps towards living fully and permanently in the gender acquired since they were registered at birth. That will make it possible for them (if otherwise eligible) to marry in their acquired gender. The Government is committed, therefore, to legislating as soon as possible to give transsexual people their Convention rights. Whether Parliament at Westminster should legislate for the whole of the UK on this matter is under consideration, particularly in view of the inter-relationship between devolved and reserved policy aspects.

     

    The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, otherwise known as the Convention on Human Rights and Biomedicine, or the Oviedo Convention, after Oviedo, Spain, the place where it was first signed, is a 1997 treaty drafted by the Council of Europe regarding various aspects of bioethics. It entered into force on 1 December 1999. (The rights to treatment) on which the UK government accepted into the GRA recognising that after previous court cases, GID was treatable.

    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at October 31, 2015 4:32 PM GMT
      February 16, 2012 11:05 PM GMT
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  • Policy for the Provision of Treatment for
    Gender Dysphoria
    1. Background
    Legal obligations and commissioning priority
    1.1 The Court of appeal ruled in 1999 that it is unlawful for NHS organisations to
    operate anything amounting to a blanket ban on the funding of gender treatment
    (Burns, 2008).
    1.2 A Primary Care Trust is allowed to accord any treatment ‘low priority’. However, it
    is unlawful to use this as a ‘blanket policy’ whereby transsexualism becomes
    effectively barred from treatment.
    1.3 Principle 3 of the NHS Plan (2000) expresses the need for non-discriminatory
    practices and comprehensive involvement of individuals with their own
    treatment plans. Implicit in this principle is the overriding need for properly
    informed consent of the person concerned before each stage of treatment.
    “The National Health Service of the 21st Century must be responsive to
    the needs of different groups and individuals within society, and
    challenge discrimination on the grounds of age, gender, ethnicity,
    religion, disability and sexuality. The NHS will treat patients as
    individuals, with respect for their dignity. Patients and citizens will
    have greater say in the NHS, and the provision of services will be
    centred on patients’ needs” (Principle 3, NHS Plan, 2000).
    1.4 It is only relatively recently that the Department of Health has made a specific
    commitment to the care of those with gender identity issues who need to
    access clinical support.
    "The Department of Health is committed to tackling gender inequalities
    within the healthcare sector by recognising the specific health needs of
    men, women, and transgender people.... The Department's commitment
    to create a patient-centred service which extends choice and is
    responsive to all patients and users, especially with regards to the gender
    perspective, will ensure that any gender differences in treatment and
    access are eliminated". (Single Equality Scheme 2007-2010).
    1.5 It is clear that NHS commissioners have an obligation to provide services for
    people with gender dysphoria and that a policy for this should be formed in
    accordance with the normal processes for policy formation and prioritisation.

    Referral Criteria
    5.1 The Primary Care Trust will only commission Gender Identity Disorder
    Services for patients who meet the following referral criteria:
    Inclusions
    • individuals with an initial diagnosis of transsexualism. A local consultant
    psychiatrist who is not part of the gender identity service must have made
    the initial diagnosis
    • patients who have written clinical support from their GP to ensure possible
    future compliance with shared care arrangements if in place
    • the transsexual identity has been present persistently for at least two
    years

    Treatment Pathway (Appendix A)
    Initial Assessment
    8.1 This period involves the continuation of the diagnostic assessment of the
    patient.
    8.2 Psycho-social support should be available throughout the pathway.
    The Real Life Experience
    8.3 This is a period of time of two years, living in the gender role with which the
    individual identifies, with the aim of assisting the patient and the professional
    in decisions about how to proceed.
    8.4 The quality of real life experience is assessed through the patient’s ability to
    (Harry Benjamin Association, 2001):
    1. maintain employment, voluntary work, or education and training,
    2. acquire a legal gender appropriate first name
    3. demonstrate that people are aware that they are living in their new
    role.

    Gender Reassignment Surgery (GRS)
    8.5 The treatment process for gender identity disorder includes a variety of
    therapeutic options including surgical and non surgical procedures. The
    treatment pathway can include any of the following core treatments subject to
    external second opinion:
    Core Non Surgical Clinical Interventions
    • diagnostic assessment
    • psycho-social support
    • hormone therapy
    • pre- and post operative support from a professional with specialist
    knowledge of sex reassignment
    • voice skills therapy
    • Facial hair removal in transwomen, where clinically indicated to
    enable the period of real life experience
    8.6 The surgical interventions routinely funded under this policy can include one
    or more of the following core procedures:
    Core Surgical Procedures for Gender Reassignment Surgery in
    Transwomen
    • penectomy
    • orchiectomy
    • vaginoplasty
    • clitoroplasty
    • labiaplasty
    • donor site hair removal on surgeon’s recommendation

    Any further procedure requested, including those listed below will require prior
    approval. Cosmetic procedures require approval from the Restricted
    Treatments Panel and are subject to the criteria of “exceptional clinical need”
    as defined in the Low Priority Treatments policy. Applications for other
    procedures should be made to the Exceptional Treatments Panel.
    Cosmetic Procedures
    • breast augmentation
    • reduction thyroid chondroplasty
    • rhinoplasty or other facial bone reduction
    • lipoplasty
    • blepharoplasty
    • face lift
    • liposuction
    • vocal chord surgery
    • Crico-thyroid approximation (only undertaken following speech &
    language therapy
    • hair removal/electrolysis (except as defined in core procedures)
    • procedures to decrease areas of baldness
    • skin resurfacing

    Post Operative Care
    8.8 Trans people are likely to have complex needs, be on lifelong hormone
    therapy and may need to be monitored and have the services of a
    multidisciplinary team for the long term effects of such treatment such as
    thromboembolism, osteoporosis and cancer. Reassignment surgery usually
    leads to lower doses of hormones being required. GPs will be advised on
    hormone therapy by the tertiary centre, with referral of problems to the local
    trust endocrinology services as required. Minor genitourinary tract problems
    can be referred to the local urology department, but more complex problems
    should be referred to the specialist centre where reassignment surgery took
    place. However, both these issues will be part of normal treatment or care
    pathways managed by the Primary Care Trust.

    Reversal of Gender Reassignment Surgery
    8.9 The Primary Care Trust will not routinely provide funding for reversal of
    Gender Reassignment Surgery. Gender reassignment therapy/surgery is
    provided following rigorous assessment of individual eligibility and readiness.
    This is intended to ensure that unsuitable patients are not offered surgery,
    leading to post operative regret.
    8.10 Revisions or repairs to surgery undertaken outside the NHS, wherever it has
    occurred, will not be approved or funded by the Primary Care Trust and this
    will include but not be exclusive to:
    • surgical revisions for psychological reasons
    • surgical revisions for cosmetic reasons


    In line with NHS co-funding guidance The Primary Care Trust will not co
    fund procedures nor will it support private non-core procedures being carried
    out at the same time as core NHS funded procedures. This ensures there is a
    clear separation with regards to funding and liability.

    Cristine Jennifer Shye.  B/L.  B/Acc
      February 16, 2012 11:29 PM GMT
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  • Cristine, you are out of date and ECHR verdicts applied to a German also apply in UK courts - though the judges would like to think otherwise.
    Also the verdicts do show that there is no need for rigorous assessmnet - just turn up at doctors and say I wanna change sex.

      February 17, 2012 9:53 AM GMT
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  • ''Cristine, you are out of date and ECHR verdicts applied to a German also apply in UK courts'' . Rose its doubtfull you could use current or subsequent ammendments or Judicial precedents to UK laws or EHRC directives that were not in forces at the time of the period you are compaining about. Why do you worry about judgements in the EUC in favour of Germany etc, when the cases I quoted set a judicial precedent for the UK and forced the advent of the GRA. Why complicate matters. Refering to the ''just turn up at doctors and say I wanna change sex.'' I presume one would have to see doctor Aziff.......

     

    Different members have different versions of a Gender recognition Act, all ratified by the Strasbourg Courts HR, some countries have a policy of enforced sterilisation, some have enforced surgical procedures, as long as each country applies it's own version of the Act as passed by Strasbourg, the other countries acts are irrelevant.

    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at April 24, 2018 6:44 PM BST
      February 17, 2012 1:11 PM GMT
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  • Van Kuck v Germany, 2003

    The Court considered the case of a transsexual woman whose health-insurance company had denied her reimbursement for costs associated with sex-reassignment surgery; the decision had been upheld by German civil courts. The Court found violations of the right to a fair hearing (article 6.1 of the Convention) and of the right to private life (article 8), holding that the German civil courts had failed to respect "the applicant's freedom to define herself as a female person, one of the most basic essentials of self-determination": it stated that "the very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security."

    I don't actually see any relevance, to a UK claim for the failure of the NHS, to provide expediant treatment in regards to the rules laid down in the GRA for a patient to follow those guidelines.

    Surely this was a case against a private health insurance company.
    Cristine Jennifer Shye.  B/L.  B/Acc
      February 17, 2012 1:51 PM GMT
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  • (article 8), holding that the German civil courts had failed to respect "the applicant's freedom to define herself as a female person, one of the most basic essentials of self-determination": it stated that "the very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security."

     

    Is the relevant section, but is precondional on the requirements of the person concerned complying with the requirements of the GRA and following the guidelines of transitioning.

     

    And only has a bearing if the NHS failed to follow guidelines for treatment by deliberately denying treatment on the basis of costs or the incompetancy of administrators amd or discrimination.

    Cristine Jennifer Shye.  B/L.  B/Acc
      February 17, 2012 2:23 PM GMT
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  • "Refering to the ''just turn up at doctors and say I wanna change sex.'' I presume one would have to see doctor Aziff..."
    I don't know who Dr Aziff is, but my initial thought was, "Hey everybody, I'm Dr Nick"!
    Rose, I really don't think the German court proclaimed that anybody should be able to walk into their doctor's, demand, and be immediately entitled to SRS without any questions asked.
    Surely it is in the patients' best interests to be properly screened and "rigorously assessed".
    xx
      February 17, 2012 4:03 PM GMT
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  • This article shows that the NHS has to follow the positive obligations put upon it by the ECHR verdicts in cases such as Goodwin v UK, I v Uk, Van Kuck, L v Lithuania, Schlumpf v Switzerland etc. http://www.dailymail.co.uk/news/article-1370961/European-Human-Rights-court-rulings-law-says-Englands-judge.html
      April 7, 2012 11:57 AM BST
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  • so in fcat aperson merely has to start living as the opposite sex and they qualify for surgery and related therapies. this may be a bitter pill for the little hitlers of the NHS.
    The NHS areas like Oxford who refuse therapy and surgery can be taken to court without any hope of being able to claim lack of funds etc.
      April 7, 2012 11:58 AM BST
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  • its only two weeks ago that I wrote to Kenneth Clarke as highest legal authority in UK if in fact th eECHR case laws and Human Rights Act apply but he hasn't replied yet but this artice shows in fact that the ECHr laws have to apply regardless of it upsetting the little hitlers.
      April 7, 2012 12:00 PM BST
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  • http://www.dailymail.co.uk/news/article-1370961/European-Human-Rights-court-rulings-law-says-Englands-judge.htm

    Rose this has nothing to do with the GRA, its to do with the rights of convicted prisoners to vote. The UK GRA, with all its inototations and requirements was forced upon the British Parliment after several cases of discrimination and denial of treatment, etc, were ruled to be unlawful against The Human rights Charter applicalble to members of the EU. and was ratified by the European Commission. Several other european countires have their own GRA ratified by the EHRC, but have varying exemprions, some countries your not allowed to have a change of birth certificate, as in it was true at the time it was issued. Some you actually have to have SRS before you can have your birth certificate changed. All approved by Strasbourg.

    And Lucy, Dr Aziff (as if, not a cat in hells chance) brother of Hon est Aziff, the Arab Estate agent)
    Cristine Jennifer Shye.  B/L.  B/Acc
      April 7, 2012 6:22 PM BST
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  • This isn't about just GRC and such it is about teh basic right to do what you want with your body?
    The Human Rights Act takes precedence over anything the UK Parliament might try to impose.
    Thw right to vote is just mentioned in passing but all other ECHTR verdicts have to apply in the UK.
    Van Kuck was just such a verdict and follows on from Goodwin v UK.
    I'm waiting for a reply from Dept of Justice and dept of health so we will see what is what.
    But I think the duty to follow ECHR HRA and Strasbourg goes far beyond prisoners vote.



      April 8, 2012 9:38 AM BST
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  • The european Human Rights charter is not absolute in its entirety, where member countries have their own Gender Recognition Acts,Normally unless a member country contravenes it's own gender recognition act then you can not appeal to the the Human rights commision.     Our act like others were ratified by the commison in Strasbourg.    In some countries, the acts they have adopted, rules within their own acts that contravene other aspects of the Human rights charter.   Enforced medical procedures, in Italy and France, one has to be sterilised before a person can get a GRC.   In two countries, SRS is demanded before one can get a GRC. several countries have no GRA at all, untill someone reports a case of a breach of human rights under their own countries laws, will the Euro commision, make a consideration, to argue prisoners getting the right to vote is nothing to do with it. prisioners still do not have the right to vote in a lot of eauropean states. also the arguement over the health insurance, was that the petitioner claimed they know they suffered dysphoria at an early age, so therefore should have entered that under the declared illness/medical criteria when they applied for the private medical cover.   In my humble opinion the commision in that case were wrong.   Same when applying for motor insurance and not declaring driving convictions or you are missing an arm and a leg, or in the case of medical insurance failing to state you already know you have a terminal illness when applying for said insurance. (an analogy)

     
     
     
     
    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at October 20, 2016 5:01 PM BST
      September 15, 2015 10:31 PM BST
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