tl;dr
- The Cass Review has always been subject to the Freedom of Information Act, but they denied it.
- Since the Cass Review has concluded, its public records must now be transferred to NHS England, leaving no doubt that they are subject to the Freedom of Information Act.
- NHS England initially claimed they did not have those records. Although they retracted the statement, they still have not provided a response.
Almost a year ago, when the Cass Review’s final report was released at midnight, I was preparing for a long night of reading while making a cup of tea. As I skimmed through the 388-page document, I quickly tweeted out potentially problematic claims from the report to help more qualified researchers and commentators analyse and assess them more efficiently.
The Cass Review - now perhaps more fittingly referred to as the Cass Scandal - quickly drew global condemnation for its poor quality and reliance on unreliable sources as the basis for its recommendations.
Some of my initial observations were swiftly confirmed by experts as deeply concerning. In response, I promptly submitted freedom of information requests to uncover the internal discussions behind the inclusion of those claims.
- Maturation of the adolescent brain reference—regarding the myth of the 25-year-old brain being cited in the final report. Lawyers linked to hate groups attempted to use this in the recent court of appeal case of O v P & Anor [2024] EWCA Civ 1577 to prevent a young person from accessing hormone replacement therapy.
- DSD reference — regarding Cass’s suggestion of a parallel between gender-affirming care and the troubling history of non-consensual treatments imposed on intersex people.
- Pornography references — regarding Cass’s suggestion of a link between trans men and exposure to pornography.
There is a clear public interest in understanding why Hilary Cass made such shocking statements, especially since her recommendations were expected to become official policy—and ultimately did.
Knowing the limitations of the Freedom of Information Act 2000 and how public bodies often attempt to evade requests by citing unrealistically high estimated costs, I specifically requested information about particular citations to make them easier to locate.
I also asked the community to brainstorm ideas about what they wanted to know, then turned those ideas into actionable freedom of information requests. Most of them are still on my backlog, unsent. One of the interesting requests was how the Cass Review decided to use AI-generated photorealistic illustrations of androgynous young persons.
None of those requests were answered, nor did any of the emails prompting a response. The internal review requests were not processed, and even our reminder about reporting the case to the Information Commissioner received no reply. There was complete radio silence.
Appointment of Hilary Cass
To be fair, NHS England revealed Hilary Cass was the only person they approached and shortlisted for appointment to chair the “Independent Review of gender identity services for children and young people”. However, it was the only request for which I received a meaningful answer.
As part of the Conservative government’s NHS centralisation efforts, NHS Commissioning Board for England and NHS Improvement merged into a single organisation. Before the merger, their Quality & Innovation committees worked together to select Hilary Cass.
The Chair of the Commission on Human Medicines (CHM), Munir Pirmohamed, who just so happens to have rubber-stamped the permanent ban on puberty blockers, was also conveniently sitting on the Quality & Innovation committee. He was appointed to the Commission shortly after Cass’s appointment. His term was due for renewal during the secret consultation on the permanent ban in October 2024. Wes Streeting renewed his term. Total coincidence, I’m sure.
An expert once told the Women and Equalities Committee that the Commission on Human Medicines is so obscure that even she had never heard of it. This is because the Commission is merely an advisory board that rarely meets and effectively operates as part of the Medicines and Healthcare Products Regulatory Agency (MHRA). Its independence exists only on paper.
The Public Records Act
The Public Records Act 1958 requires public authorities to preserve materials that played a role in decision-making, as well as anything of potential historical significance, to ensure historians and future generations can learn from them. We certainly have much to learn from Hilary Cass to avoid repeating her mistakes.
The Act defines public records using examples while not restricting the term’s broader meaning. The Cass Review was subject to the Act, and they acknowledged this.
NHS England is likely responsible for preserving records following the conclusion of the Cass Review. They should retain all records created during the review and transfer them to a designated place of deposit after 20 years. If NHS England is not responsible for this, the Cass Review must transfer the records to the National Archives immediately upon its closure.
According to the rules, records are made available for public inspection after 20 years. However, if they contain sensitive personal information, they remain closed for approximately 100 years to minimise the risk of unfairly disclosing personal data during a person’s lifetime. This means that for families who have unfortunately talked to the Cass Review, their information will not be publicly released in the 21st century.
In other words, the information I requested will eventually be made public—unless, of course, the public records have already been destroyed.
The Freedom of Information Act
The Freedom of Information Act 2000 gives the public the right to access information held by public authorities. This operates alongside the Public Records Act and applies to both actively used information and archived public records. Public authorities must disclose requested information unless it falls under an exemption and withholding it is in the public interest. The responsibility lies with public authorities to justify any refusal, as the default position is open access.
Aside from a patient’s personal information, which researchers wouldn’t request anyway, it is unlikely that the Cass Review could claim any exemption.
Under the Freedom of Information Act, it is a criminal offence to deliberately conceal, tamper with or destroy information after it has already been requested. This means the information must be preserved exactly as it was when requested, until the request is fully resolved.
What was the Cass Review?
As shown in the screenshot above, the Cass Review claimed it wasn’t subject to the Freedom of Information Act, stating that it was not a public authority in its own right. This was probably a response to earlier attempts by the community to request information.
So what exactly was the Cass Review? There are only 6 possibilities:
- the Cass Review was a newly established public body
- the Cass Review was a limited company
- the Cass Review was NHS England
- the Cass Review was the Department of Health and Social Care
- the Cass Review was Hilary Cass
- the Cass Review was Hilary Cass and NHS England’s joint venture
None of them allows the Cass Review to evade the Freedom of Information Act. The Cass Review was required to respond to freedom of information requests, no matter what. While they could delegate the public-facing task of managing requests to NHS England, NHS England must either forward those requests back to the Cass Review or handle them directly.
Development since December 2024
In December, the Information Commissioner’s Office finally worked through its backlog of investigations and began looking into NHS England.
I made a new request for the internal drafts or snapshots of the Cass review final report at three-month intervals. Once again, I had to carefully word the request to ensure they couldn’t refuse it. On 9 January 2025, they told me,
“NHS England does not hold the information you have requested. The Cass Review was an independent review and NHS England does not have access to information held for the final report outside of the review’s data handling policy. As such, NHS England did not receive snapshots or drafts of the final report in the manner you have requested and would be unable to provide documentation for this.”
As I explained, this position is unlawful and could lead to a criminal offence under the Freedom of Information Act being committed. It also appears that NHS England agrees the Cass Review no longer exists as of January 2025.
However, I recently discovered that the Cass Review quietly amended its final report in December 2024 to more clearly state that it supports gatekeeping, conversion talk therapy, and opposes an informed consent model. Does the Cass Review final report now count as a living document? In what capacity did they make the amendments? Could this be another attempt to evade freedom of information requests?
I requested internal reviews and informed the Information Commissioner’s Office that a large collection of public records may have been concealed or destroyed.
NHS England’s retraction
On 28 January 2025, NHS England withdrew their original responses. But they haven’t provided a revised response yet.
It is still unclear whether the Cass Review or NHS England destroyed public records, whether the Cass Review continued to exist until April or December 2024, or if the records will be transferred to NHS England if they haven’t already been.
In 60 days, it will have been a full year since the final report (April version) was published. None of the requests for the Cass Review’s internal materials have been fulfilled.
We will soon find out whether the Cass Review is above the law.
