The High Court has heard claims that the health regulator, the Care Quality Commission, “acted irrationally” when it registered England’s first private clinic offering gender treatment to under-18s.
The case, brought by a former nurse and a mother who wishes to remain anonymous, claims the watchdog did not consider all relevant information and should also have imposed conditions on the clinic.
The CQC says there is ample evidence that the clinic is committed to the safety and best interests of its patients.
Lawyers for the Gender Plus Healthcare Clinic, which was rated outstanding last year, called the legal action “fatally flawed”.
The former nurse, Susan Evans, and the mother are challenging the CQC’s decision to register the clinic in January last year.
They are also challenging a decision made last December to continue the registration and to allow the clinic to prescribe cross-sex hormone treatment to 16- and 17-year olds.
The clinic, which has services in Birmingham and Leeds, treats people aged 16 and over, including by prescribing hormones, such as oestrogen or testosterone.
Cross-sex hormones are given to people who identify as a gender that is different to their biological sex. The medication helps someone who is transitioning to develop characteristics associated with their preferred gender.
For instance, it would help a trans man, a biological female who identifies as a man, develop a deeper voice and facial hair. Existing NHS guidance allows the hormones to be prescribed to people aged 16 and over.
However, in line with NHS rules, the new clinic does not prescribe puberty blockers which suppress the release of hormones.
Tom Cross KC, barrister for the two women, told the court that in deciding the clinic should continue to be registered, “the CQC has acted irrationally”.
He argued that the decision did not factor in some of the conclusions of last year’s Cass Review into gender treatment for young people “which serve as important safeguards for children within the cohort and were obviously material”.
The Cass Review urged “extreme caution” when prescribing hormone treatment for under-18s.
Mr Cross expressed concern that the private clinic lacked the safeguarding measures required by the NHS and urged the court “at the very least” to require the CQC “to think again about the adequacy of the safeguards”.
For the CQC, Jamie Burton KC said the regulator had found no evidence of “improper decision-making or anything that might flag a concern” and that the clinic was found to be “committed to the safety and best interests of its patients” and was acting “in line with national guidance”.
“In its professional judgment, it found the provider was taking reasonable steps to safeguard 16- and 17-year-olds by way of its existing processes,” he added.
Peter Mant KC, barrister for Gender Plus Healthcare Ltd, said there was no requirement for private providers to mirror NHS care and that the claimants’ concerns “do not have a high quality evidence base”.
The hearing will continue on Wednesday, with a judgment expected in writing at a later date.