First section relevant to this board:
Sex and gender reassignment
In the NHS Constitution, ‘Access to health services’ includes a right for patients to “receive care and treatment that is appropriate to you, meets your needs and reflects your preferences”.
We want patients to feel confident asking for care that meets their needs and preferences, including requests for intimate care to be carried out by someone of the same sex. We also want patients to have confidence that any such request will be accommodated, where reasonably possible.
Same-sex care is recognised through accompanying CQC statutory guidance to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The guidance sets out how providers should act when providing intimate or personal care, and make every reasonable effort to make sure that they respect people’s preferences about who delivers their care and treatment, such as requesting staff of a specific sex. We are defining sex as biological sex.
We are defining intimate care as an examination of breasts, genitalia or rectum, and care tasks of an intimate nature such as helping someone use the toilet or changing continence pads. This definition aligns with that used by the General Medical Council.
The NHS Constitution does not currently reference same-sex intimate care. We want to introduce a new pledge to reinforce NHS healthcare providers’ responsibilities to accommodate requests of this nature where reasonably possible.
We propose adding a pledge to ‘Access to health services’ to state that:
Patients can request intimate care be provided, where reasonably possible, by someone of the same biological sex.
Question
To what extent do you agree or disagree with this proposal?
- Agree
- Neither agree nor disagree
- Disagree
- Don’t know
If you have any further views on the proposal, please provide these in up to 250 words, if possible.
The NHS Constitution contains a pledge that states:
if you are admitted to hospital, you will not have to share sleeping accommodation with patients of the opposite sex, except where appropriate, in line with details set out in the handbook to the NHS Constitution.This means that patients should not have to share sleeping accommodation with patients of the opposite sex and should also have access to segregated bathroom and toilet facilities. Patients should not have to pass through opposite-sex areas to reach their own facilities. Women in mental health units should have access to women-only day spaces.
Sleeping accommodation includes areas where patients are admitted and cared for on beds or trolleys, even when they do not stay in hospital overnight. It therefore includes all admissions and assessment units (including all clinical decision units), plus day surgery and endoscopy. It does not include areas where patients have not been admitted, such as accident and emergency cubicles.
Single-sex accommodation can be provided in:
- single-sex wards (this means the whole ward is occupied by men or women but not both)
- single rooms with adjacent single-sex toilet and washing facilities (preferably en-suite)
- single-sex accommodation within mixed wards (for instance, bays or rooms that accommodate either men or women (not both), with designated single-sex toilet and washing facilities preferably within or adjacent to the bay or room)
In considering how the provision of single-sex accommodation for men and women should apply to transgender people - a term used to refer to people whose gender identity is different from their biological sex - the needs of each patient in a ward or clinical area should be considered on an individual basis to understand how best to protect the privacy, dignity and safety of all patients. When making these decisions it is important to balance the impact on all service users and show that there is a sufficiently good reason for limiting or modifying a transgender person’s access.
Recognising the concerns that patients may have about sharing hospital accommodation with patients of the opposite sex, we propose to amend the pledge to reflect the legal position on the provision of same-sex services and on which transgender patients can be offered separate accommodation as a proportionate means to a legitimate aim.
Specifically, the Equality Act 2010 expressly allows for the provision of single-sex or separate-sex services if certain conditions are met. Such provision must be a proportionate means of achieving a legitimate aim. The act also allows for persons with the protected characteristic of gender reassignment to be provided a different service in this scenario, provided such an approach is a proportionate means of achieving a legitimate aim. This could, for example, mean a transgender patient is provided with a single room in a hospital setting (provided other clinical priorities are considered). Any decision relating to accommodation of transgender patients should always consider the privacy, dignity and safety of all patients in a ward or bay.
We propose adding additional wording to the pledge on sleeping accommodation to state:
if you are admitted to hospital, you will not have to share sleeping accommodation with patients of the opposite biological sex, except where appropriate. The Equality Act 2010 allows for the provision of single-sex or separate-sex services. It also allows for transgender persons with the protected characteristic of gender reassignment to be provided a different service - for example, a single room in a hospital - if it is a proportionate means of achieving a legitimate aim.
Question
To what extent do you agree or disagree with this proposal?
- Agree
- Neither agree nor disagree
- Disagree
- Don’t know
If you have any further views on the proposal, please provide these in up to 250 words, if possible.
In the NHS Constitution, ‘Access to health services’ includes a right for patients to “receive care and treatment that is appropriate to you, meets your needs and reflects your preferences”. Meeting the needs of patients includes respecting the biological differences between men and women, such as sex-specific illnesses and conditions.
If these biological differences are not considered or respected, there is the potential for unintended adverse health consequences. Language, therefore, is very important when communicating with patients. Patients may be unclear about whether a specific condition applies to them and may not come forward for treatment if language is ambiguous. Clear terms that everyone can understand should always be used.
To this end, we propose adding a new right to ‘Access to health services’ to make clear patients have a right to expect that NHS services will reflect their preferences and meet their needs, including the differing biological needs of the sexes.
The wording we are proposing for the new right is related to the legal obligations on the NHS through the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014/2936 about providing person-centred care. It also aligns with the Equality Act 2010, specifically paragraphs 26, 27 and 28 of schedule 3 relating to separate services and single-sex services respectively.
We propose adding a right to ‘Access to health services’ to state that:
You have the right to expect that NHS services will reflect your preferences and meet your needs, including the differing biological needs of the sexes, providing single and separate-sex services where it is a proportionate means of achieving a legitimate aim.
Question
To what extent do you agree or disagree with this proposal?
- Agree
- Neither agree nor disagree
- Disagree
- Don’t know
If you have any further views on the proposal, please provide these in up to 250 words, if possible.