NHS Policy Audit - working party

[KnottyAuty]

Following on from Thread #23 of the Peggie v NHS Employment Tribunal. Anyone who wants to help with survey/audit of paperwork against the Equality Act protected characteristics please join here 😊

In case it helps:
I asked Chat GPT where the legal requirement to publish Impact Assessments is set out. Disappointingly it is not explicit in the Equality Act, however it is suggested as a best practice way of satisfying Section 149, the Public Sector Equality Duty (PSED).

I will keep looking, I know Chat GPT is not totally reliable, to see if I can find it anywhere else.

Below is Chat GPT’s answer:

“The Equality Act 2010 does not explicitly require Equality Impact Assessments (EIAs) to be published. However, the Act establishes the Public Sector Equality Duty (PSED), which requires public bodies, including NHS Trusts, to consider the impact of their policies and practices on equality.
The key sections of the Equality Act 2010 related to the duty are:

1. Section 149 – Public Sector Equality Duty: This section outlines the general duty for public authorities to:
2. Eliminate discrimination, harassment, and victimization.
3. Advance equality of opportunity.
4. Foster good relations between people from different groups.
5. While the Act requires public bodies to consider equality when making decisions, it does not specify that an EIA must be published.
6. Section 149(3) – Specific duties: This section further clarifies that public authorities must also:
7. Have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations.

However, the Act leaves the publication of EIAs to be guided by separate regulations or local authority policies. In practice, many NHS Trusts and other public bodies voluntarily publish EIAs as part of their transparency efforts and to demonstrate compliance with the duty, but it is not a legal requirement under the Equality Act itself. In terms of public bodies' transparency, the Equality and Human Rights Commission (EHRC) provides guidance on how the PSED should be implemented, which includes advice on how to ensure policies are inclusive and accessible. Many organizations also publish EIAs to demonstrate that they have met the duties laid out in the Equality Act, but again, this publication is more of a best practice than a direct statutory requirement.”

Thanks @Bunpea

This is worth a look:

https://www.equalityhumanrights.com/media-centre/news/equality-regulator-engages-scottish-government-and-nhs-fife-regarding-staff

It covers the requirements to have EqIAs - but it must have been elsewhere I saw it reported that they’d written with the request because this couldn’t be found on the NHS Fife website… so the lack of transparency is an issue although not sure about the legal part

Hi - yes thinking about it - could you fill in another entry?
Then I can combine or delete as needed at the back end
Thank you!

I can’t find a specific provision as yet but am working on a mobile and it really is a laptop job. It’s somewhere buried in secondary legislation ie statutory instruments and/or guidance and it’s different throughout the UK. Might well just be a best practice thing. Which is in itself an issue as the complexity makes it very difficult for these requirements to be followed properly, even with the best will in the world.

I agree with what you say about the bizarrely prominent trans and LGBTI stuff overall - seems to me that the NHS has very much been targeted by activists. And they’ve fallen hook line and sinker for it.

You’re right, they do mention it in the letter but tue regs they cite don’t seem to contain such a duty At least not on the face of the text. But as I say I need to look at the proper primary legislation on my laptop as the mobile screen is not cutting it!!

More on the requirement (or not) to publish Impact Assessments:
Headlines from my Google trawl:

1. Equality Act does not demand that impact assessments are published. In fact it discourages publication as a general practice - see ‘Myth busters’ section below.
2. EHRC guidance document for Public Sector Equality Duty (PSED, which the EA establishes) in Scotland asserts that Regulations require impact assessments to be published ‘within a reasonable period’.
3. EHRC guidance document for PSED in Wales says impact assessments should be published where they show a ‘substantial impact’.
4. EHRC guidance document for PSED in England does not mention impact assessments by name, but says ‘records showing due regard in decision-making’ and ’research that was considered in that decision-making…’ should be published. IMHO it would be hard to do this without including impact assessments.

IANL, so no idea if the EHRC Guidance has the same weight in law as the Equality Act.

I didn’t find anything about Northern Ireland.
———————————————————————————————————
Links etc below.

Equality Act does not demand (in fact discourages) publication of impact assessments. see Mythbusters section of Governments equality office guidance, 2023:
https://www.gov.uk/government/publications/public-sector-equality-duty-guidance-for-public-authorities/public-sector-equality-duty-guidance-for-public-authorities
“Myth 6: “I must publish an equality impact assessment.”
Decision-makers’ supporting records are sometimes known as equality impact assessments. As with government legal compliance documents in general, there is no requirement to publish these assessments. The anticipation of publication could even have a “chilling effect” on decision-makers’ consideration and records. Many documents including equality impact assessments can be requested as part of court proceedings or a Freedom of Information request. But there may be circumstances where you decide that it would be helpful to publish the assessment, like a consultation process.”

PSED in Scotland
the EHRC guidance document for Scotland PSED ‘specific duties’ contradicts the EA and says impact assessments should be published.

See page 28 :
https://www.equalityhumanrights.com/sites/default/files/2021/PSED-scotland-assessing-impact-and-public-sector-equality-duty-guide.docx
“Publication
The regulations require that where an assessment has been made and the policy is implemented, the results of any assessment are published ‘within a reasonable period’ of the decision to apply the policy. Publishing results of assessments will increase transparency and accountability, and we suggest that you publish your impact assessment results as soon as possible after the implementation decision is taken.”

PSED in Wales
https://www.equalityhumanrights.com/sites/default/files/2021/PSED-wales-essential-guide-public-sector-equality-duty.docx
It says public bodies must :
“publish reports of the assessments where they show a substantial impact (or likely impact) on an authority’s ability to meet the general duty”.
This is a gotcha, because if the impact assessments should was poorly done e.g. by biased or pro trans staff, it might not show a substantial impact on women, so no need to publish.

PSED in England
https://www.equalityhumanrights.com/guidance/public-sector-equality-duty/specific-duties-england-and-non-devolved-public-authorities
The guidance instructs bodies to publish :
“information about how your organisation has given due regard to the aims of the general duty could be:

• records showing due regard in decision-making
• research that was considered in that decision-making…”

The rabbit hole has taken me to here, so far, but it seems to be constantly under review - weirdly - and not even properly up to date!

https://www.legislation.gov.uk/ssi/2012/162/regulation/8

I despair of the absurdly complicated bureaucracy surrounding all of this and the multitude of quangos - it’s a recipe for confusion and duplication, whether by accident or design…

Cross posted.

What a mess - my head is in my hands…!!!

Mine too. I am sat looking at all my open search tabs and am getting that mild panic that I used to get when I underestimated the amount of time a school project would take. This should not be remotely as snarled up as it is. I feel the obfuscation is deliberate.

Yes crossed post! I know what you mean - my head hurts!
Good that we have both arrived at PSED.

Two random thoughts:

One : the three ECHR guidance docs (one for each of Scotland, Wales and England) should be consistent in at least scope and detail, but they are not. E.g.
The doc for Scotland is 31 pages, dated 2016
the doc for Wales is 13 pages, published 2014
the doc for England is a web page, about a page and a half of copy, dated 2020.
They appear to have different authors.
This inconsistency looks a mess, but perhaps it is typical for devolved matters, but it would be better if they were more alike.

Two: a speculative hypothesis to explain why the Equality Act does not insist on publication of impact assessments, but the the ECHR Guidance broadly does: the EA was worked on by pro trans people, they got gender reassignment added as a protected characteristic and perhaps got impact assessments de-emphasised as part of that. But they never managed to get much traction with ECHR.

(I have no idea, just a guess. )

Had a look at my local NHS and from what i have read here there is most definitely a bias to one protected characteristic.

I will come back to this when I’m feeling stronger… ! Unfortunately pesky actual work is getting in the way…

The existence of a mess is in itself telling. It feels like there have either been too many but at the same time too few lawyers involved… Or perhaps, just not the right type. At the same time though, I think it is actually a very useful illustration of the fact that what we really need are laws and policies that everyone in our society can understand and work with. You shouldn’t have to be a lawyer to get this stuff.

In “real life“, I’ve lately been on a bit of a decluttering kick. And this is just making me want to do a radical MARIE KONDO job on the whole binfire that is EDI regulation.

@KnottyAuty I have finished NHS Fife and will redo Forth Valley [in its entirety] over the weekend now we have tracked down the transgender policy.

I think for the purposes of presenting these findings we can make reference to the ECHR letter… TBC but it shouldn’t hold us back. Thanks again to @KnottyAuty for coordinating.

Quite - it makes no sense to have 30+ pages on transgender and nothing much on sex, sexual orientation, race or disabilities. The vast vast majority of hate crime is racial.

What sensible woman would want to work there after this?

Will catch up with this thread properly when I can - impressed by all hard work. Sorry this is a literal cut andpaste from main thread but I’m tired. Just for your info as an anecdata really and a thank you as shows how important your work is,

Am catching up with this thread but thought you would appreciate an ironically timing event that happened to me this week! I posted earlier i couldn’t help with Knotty’s thread as I am in hospital (and also lack the brain power atm) and the other night a man attempted to enter my hospital room! I am in a side room and luckily he only got as far as just through the doorway before security staff dragged him out, another irony is that these were external security sitting outside my room who happened to be there with another patient! I got as far as a “WHAT THE FUCK” and then they had hold of him but it was scary. scary how inarticulate i was as it was an automatic involvuntory reaction rather than a reasonable response like screaming for help. I had a call button attached to me but didnt have the response speed quick enough to press it and was also wired up to a load of machines restricting my movement. it’s also hard to tell how much of my crap reaction was normal “shock” and how much was due to crap cognitive function and physical disabilities! the main “luck” was that the security guards happened to be there. it was an example of how vulnerable women are in hospital.

I don’t want to be outing about the type of I was on but it’s niche so mixed sex but bay rooms are single sex (well probably single “gender”) and there may well have been no “ill intent” behind the man’s actions,and the way the security staff handled him indicated that there probably wasn’t - it’s hard to explain esp. not wanting to be outing, or speculate on others cognitive functions. if that makes sense. Anyway it’s just really relevant atm so I thought I’d post about it.it also really illustrates (right word?) the reasons why impact on others shld be part of risk assessments - not just women’s safety but disabled women who are even more vulnerable. It made me realise how much the type of ward really also has an huge impact on this risk. there are so many variables from a male doctor pretending he is a woman, to a male patient with lack of capacity to a male patient with ill intent etc etc. hope all this makes enough sense as I’m struggling a bit atm, I’ll also post this on Knottys thread.

I’ll decide what to do about my event as it definitely needs raising to the trust,DH will help me draft something when im up to it. just happens to be extremely timely.

I took a look at Borders and Dumfries and Galloway today but will come back and complete the forms on Sunday. Been down lots of rabbit holes and found a few peripheral documents, but there's not much on Borders. Dumfries I have fared a little better with.

Thats just awful and also illustrates why single occupancy spaces have their own downsides too, in terms of not being „overlooked in a good way“….
hope you’re not too shaken up and get some traction when you complain.

@GCEpileptic Gosh that is awful for you. I do think that the NHS is far too complacent about the risks. I hope you feel better soon.

thank you for kind replies! I did make a Upton style contemporaneous note by texting DH all details - best bit is will have been recorded on CCTV so unarguable and they can’t brush it off.it made me realise as @@ShockedandStunnedRepeatedly says side rooms actually feel less safe, if you’re in a bay with a male invasion (shorthand!) other people will also shout but in a side room if the door is closed no one will hear you scream (isn’t that a line from a film?) and pressing your nurse call button doesn’t usually elicit a quick response unfortunately as we all know! I had an emergency alarm button attached to me as well as as the standard nurse call button but didn’t get time to press it as it was sorted so quickly thankfully.but again I would have been slower than the average person even accounting for the delay due to shock. it’s very lucky I was in a side room with monitoring so if the security hadn’t been there it would have been noticed asap but it was a specialist ward, other side rooms aren’t like that. I don’t think side rooms are actually safer for women now unless the total zero men approach is implemented. but I know specialist wards will usually always have to be mixed as it’s not practical to two separate wards esp with all equipment. But i think these are where a lot of patients are probably more vulnerable (I don’t want to add to workload esp when I can’t contribute but but it makes me wonder if specialist wards containing having to be mixed sex yet likely including extra vulnerable patients, should included as a additional risk in their assessments) . Apart from male patiente they also don’t stop male doctors like Upton. the thought of being in a side room with him now genuinely seriously gives me chills esp as doctors automatically close doors to protect patients privacy when they come in.

I do feel bad as i do believe this man had no ill intent - im not going NAMALT but the sad thing is it’s ALWAYS men that’s why women are afraid. My fave word atm seems to be irony - it’s ironic tho Upton as a man is the one knocking down their house of cards and will probably end up making women safer. but it’s Peggy who started the knocking down so the credit is hers, he’s just the tool (literally ) all the work you and other women are doing is so amazing.

anyway I’ll stop derailing - It’ll be a slow process but I’ll let you know the outcome of my complaint, how lucky it will have been captured on camera. This is really good as a. They can’t weasel out of this one and b. It’s nice to use “captured” in a positive sense!

so I’ll let you know the outcome and idk if can be “used” in your work but am happy for it to be. I would quite happily “out” myself in RL on this but have a consideration of a family member who I don’t want to get any kickback against them professionally. I won’t say any more as privacy but will talk to them. they’re actually fully GC they’d prob be happy and actually encourage me to be public but they’re not as cynical as me! and so I want to protect them.

I’ve done some hopefully useful digging into the legal requirements around EIAs in England.

The EHRC’s technical guidance only mentions them once, the key paragraphs are the ‘due regard’ section, 5.39-5.44 (especially the final three paragraphs):
https://www.equalityhumanrights.com/sites/default/files/2023/England%20PSED%20technical%20guidance%20%281%29.docx

My reading (as a lay person) is that any organisation that couldn’t evidence the process would struggle to show they had given ‘due regard’ to the PSED, but that this documentation doesn’t necesarily have to be called an EIA. I think an FOI that asked for ‘evidence (EIA, committee papers, any ’structured attempt to focus on the details of equality issues’), that showed the organisation has given due regard to the PSED’ should get at the relevant documents.

The EHRC’s guidance (less technical) has a red box above section 8 that is also helpful around EIAs:
www.equalityhumanrights.com/guidance/how-consider-equality-policy-making-10-step-guide-public-bodies-england#step-8-collect-evidence-to-monitor-actual-impact

I’m not clear on the process that can be followed if an organisation seems not to have given due regard - I’m guessing maybe judicial review (very expensive), but maybe a lawyer on MN can clarify?

Thank you for this thread. I can help looking for my board’s policies.

Thank you!

We have started on the 14 Scottish trusts and TBH it’s proving a bit of a slog!

As of last night we had 6 out of 14 entered into the online survey.

We are finding that the information on the websites is patchy. So anyone wanting to help could maybe start by firing off FOI Requests.

This WRN report just out is relevant and terrifying. https://a86851fb-c226-400d-9bf4-401a61daaa40.usrfiles.com/ugd/a86851_baa510c051ec440bb36512c88b98f6d2.pdf

They had a terrible time trying to get the numbers so it might be best to trial a few FOIs to see what we get.

But to build on the WRN we could potentially also ask the Trusts about the safety figures.

So can we agree the FOI questions to ask?

1. Copy of any Single Sex policies for staff or patients?
2. Copy of any policy for Transgender staff or patients? Or any policy relating to Gender self ID?
3. Copy of the Equality Impact Assessments for all policies provided?
4. Data on recorded sexual assault or rape occurring on NHS Trust premises involving NHS staff?
5. Data on recorded sexual harassment on NHS Trust premises involving NHS staff?

We also somehow need to keep track of who has issued an FOI to where to avoid doubling up. So if people PM me where they would like to contact I can keep a list going and try to track it that way? Maybe post the list here from time to time?

What do you think?

@KnottyAuty, pretty sure I’ve come across trust responses to previous FOIs on at least one of those topics - it might be worth searching individual trust’s for those first, before sending in our own FOIs, to save time. The FOI responses were a PITA to search, but it’s doable.

FOI is probably going to be necessary to get a complete picture as we don't know what we are missing vs what does not exist. As TwoLoons says it is worth checking to see what has been done previously. A really good source is What do they know - looks as if we will need to search by trust, this is the link to Forth Valley on their site https://www.whatdotheyknow.com/body/nhs_forth_valley
Also provides advice on putting together a request.