Real life example of balancing rights - interested in opinions

[Azureal]

I have a sister who has a severe learning disability (non-verbal, developmental age of about 15 months) and has lived very happily in a small group care home for 15+ years. Some of the staff at her home have been with her from the beginning, both male and female, and are very good with her. We as a family have never had a problem with the male staff giving her personal care and she doesn't appear to mind either. Indeed her favourite staff members are probably male.

A new person has moved into the house, also with a severe disability, and her family insist that only female staff undertake her personal care.

As a result there is a new house rule that a female staff member always has to be on overnights.

Historically it was mostly the male staff who took the overnights and many of them rely on the overtime to support their families.

The longstanding male members of staff are now thinking of leaving as they can't afford the pay drop. So the parents of the other person's right to request staff of a specific sex is negatively impacting my sister who may lose longstanding relationships with staff she is accustomed to and very close to. She is epileptic and has had 2 seizures since the change when she hadn't had any in 6 years. We are worried it's a reaction to stress as it's usually bank staff now if she wakes in the night as the female staff don't want the nights and the male staff aren't allowed.

I understand both points of view, that of the other family and of ours. But I'm worried for my sister. Would this come under sex discrimination or not? And any suggestions for resolving?

In terms of resolving the actual situation, there’s not much you can do while keeping her in this setting as staffing is obviously out of your hands - what you have control over is whether you keep her there or move her to a better-staffed facility (although obviously your sister should still be receiving intimate care from a woman in any setting given her lack of ability to consent), and obviously finding a suitable setting is like finding a needle in a haystack so that’s unlikely to be a realistic option.

The issue is with the pay and conditions for staff in these settings, as it is incredibly challenging to find and retain good staff. Because a lot of it is council-funded, that affects the budgets available, so while it’s not a direct solution, I think the long-term answer is lobbying your MP and campaigning for better-funded social care. Not particularly helpful, I know.

I sympathise with the situation and obviously it's very difficult for your sister and family.

However this isn't about a conflict of rights (assuming anyone has the right to continuously the same carer) or an issue you can resolve in this way. It might help to look at a different example.

Let's agree Alice has the right to take 6 months' maternity leave from her job. She usually works Saturdays. Now Alex, male is being told to work Saturdays. However he is Jewish and working Saturdays is prohibited by his religion.

Would anyone say Alice shouldn't be allowed to take maternity leave because it conflicts with Alex's religious rights? That this conflict should be resolved? Of course not. But someone who didn't think women should have maternity leave would blame Alice for the situation.

Going back to your sister, I don't think she has the right as such to continuous care but you can advocate for the difficulties different carers are having on her.

That said, it doesn't seem to actually be the impact of the new family but that they are being used as a scapegoat for staffing difficulties. It sounds like they need to pay carers more for working permanent nights.

I am so, so sorry but the OP needs to read this, from beginning to end, and then reconsider who should be providing intimate care to her sister. It has to be faced.
www.filia.org.uk/latest-news/2021/12/21/male-carers-and-the-sexual-abuse-of-disabled-women

This is a question of money, not rights.
Pay the carers and they will stay.

You're painting this as a conflict of rights only, we don't have all the information.
We know your sister has no problem having support from men or women.
We know this new person does have a problem with support from men.
What we don't know is WHY this new person doesn't want support from men, neither should we and nor she she be expected to have a reason, it is enough that she and/ or her family say no.
Do you think your, 'we're alright so she should suck it up' attitude is 'being kind?'

We absolutely don't know the sister has no problem with support from both men and women because, as the OP says, she is non-verbal and has a developmental age of around 15 months. So she's not able to understand the concept of consent or give it. It's the who OP doesn't have a problem with her presumably adult, non-verbal, severely-lacking-capacity sister being looked after at night by a lone man.

Agreed.

As an absolute minimum there should be a female chaperone if a male carer is doing personal care.

I agree with the suggestion above that a female chaperone is the minimum. I re-read the op and was reminded that this is a non-verbal woman with the developmental age of about 15 months. Having same sex intimate care is just basic safeguarding in this situation really.

Indeed.

This is where be kind gets us.. some women not able to ask for what they really want.

Sorry for taking so long to come back to this.

I don't agree with those who say all personal care should always be by a carer of the same sex. I believe we would see the signs if anything untoward had ever happened and in 15 years we have never had cause for concern. We see her very regularly and I oversee her medical care. I do agree the other family has the right to request it.

My issue is with the impact this change is having on my sister and indeed other residents in the home. It has always been such a lovely community. You hear such horror stories about some care homes and we always felt we were so lucky. And now there is anxiety and negativity.

It is a mixed care home. Some residents need waking night care, others don't. The rule is now all night staff must be female even though two staff are needed so one could be male and one female. We have asked why both female and not been answered.

I called it a balancing of rights because there are best interest assessments going on in relation to this which have concluded the rule is not in the interest of the majority of residents.

I believe we would see the signs if anything untoward had ever happened

You'd be seeing signs after the fact. Safeguarding is about prevention. And it's to safeguard the carer, as well as the person they are caring for.

I hope you're right. I hope you've been lucky. But safeguarding shouldn’t rely on luck.

They should give you an answer to your questions, though

My relative's care home was really changed by a new female client - all others were male. It was a poor decision all round due to difference in new client's needs and current ones - not relating to personal care at all by the way. I imagine this can happen a lot in smaller places where there is a rhythm to life for long stay, regular clients. The new lady moved on eventually and all settled down, but one client massively struggled during and for a good while afterwards. It is very sad, and I agree the needs of the majority should be catered for, but this is only where possible.
Re the personal care, firstly in this instance I think this it is a bit of a by product in a way of how existing residents should be treated - as in everything ideally should be a good fit for them and instead everything has had to change - sadly, resourcing will never allow beyond getting care at all for everyone. I imagine all this isn't helping the new lady settle in either when really she's just receiving normal care.
Secondly, with personal care the safe practice is same sex care and this should be always available. This doesn't seem to apply to men so much though - and whilst it's less likely a female abuses a male some men get very distressed having to have a female help their personal care, which seems unfair. My Mum preferred male care, unusual I know, but alongside this some of the men were just that bit warmer than the women, one sang with her and held her hand occasionally - she really, really appreciated that small contact.
I hope all is resolved OP, it is so difficult to get a good care place/care where people can settle and have a decent life but this is no more than they deserve.

It sounds like the ideal solution would be for one male carer and one female carer to be working the nights. Plus that instead of bank staff, that they should be people who fit well with the clients and are regular employees that the clients get to know and are comfortable with.

I understand that it is finding a good, female carer that will work nights that is the issue, as male staff to fill this role are available and willing.

And that's probably because female staff probably have to look after children or their own dependent elderly in the evenings and overnight, while men aren't expected to be the primary carers.

How regularly do you see her?

How would you know if someone on the staff was slowly, quietly grooming her by getting her trust, then using the opportunity of changing her incontinence pads and cleaning her up to accustom her to sexual stimulation and activity? She's an adult now: she will have adult physical responses to stimulation. Why do you think you'd know if she'd been raped or assaulted?

My MiL was in a care home and visited every 3-4 days by family. She had moments of lucidity and when she did, she was often unhappy. It took us, and the families of other victims, the best part of a year to work out what a couple of the male staff were doing.

It’s not a balancing of rights conflicts if it is just poor management though? Put a male and female staff on overnight- I’d suggest ask them why they aren’t doing that. Mixed school camps would never go ahead without male and female staff for overnight, sounds like it should be the same here.

This. The rule of same sex care should be the default - not that women have to request it. I would be willing to consider exceptions but only where the patient or their person with power of attorney has specifically said it would be OK and where a careful assessment of consent and reasons has been done.

This is why balancing rights is hard. Anyone who has given the impression it's always easy has misled people. I am grateful that the Supreme Court were so clear in explaining their decision, and in acknowledging that it's always a question of balancing rights, which are sometimes in competition.

We see her at least twice a week. While my sister is non-verbal she is very capable of expressing her opinions and emotions. And from what I understand the law on consent is not so clear cut, eg we were not allowed to put her on the pill to manage her periods. She was clearly happy there and now she clearly isn't. I don't like to go through life distrusting everyone, it's not who I am. I trust the longstanding staff members, both male and female and I trust the systems the home previously had in place.

If we can't get them to allow mixed overnight staffing we may have to look at moving her, which would be very sad. I understand in any case we may not be able to move her as her social worker is the decision maker, not us.

I don't like to go through life distrusting everyone, it's not who I am. I trust the longstanding staff members, both male and female and I trust the systems the home previously had in place.

And this is how the abusers carry on abusing in plain sight.

Agreed. OP abusers will groom their colleagues and their target's family members at first or alongside their grooming of their victims, surely you know this? They don't wear a sign, they look like everyone else and seem nice like everyone else but you've no idea what's happening when you're not watching.

Possibly outing but I had a colleague for over 6 years who it transpired was sexually abusing the children who were our clients. I trusted him, I liked him, if a member of my family had needed the service I'd have requested him to care for them because he was so kind and caring and the clients and families all loved him, as we his colleagues did.

Do not kid yourself that abusers all have a vibe, that you'd know if something was off,or that your sister would be able to express discomfort as an abuser could easily groom her to not complain, how would she even understand that what's happening isn't ok? Not one of us ever suspected my colleague and no clients raised concerns for years until a child told his relative he was uncomfortable about something that this person has done, and it all came out. He'd been sexually abusing children for years, many victims were uncovered and there were likely many more. Unchaperoned males should never have had access to your sister and you should be pleased that the coming of the new resident is going to mean safer care for your sister.

We as a family have never had a problem with the male staff giving her personal care and she doesn't appear to mind either.

How would she let you know if she did mind?

Lack of protest is not consent.

Exactly my point - you weren’t allowed to consent on her behalf to optional medical intervention, because the doctors can’t be sure as to whether or not she’d consent to that, and under circumstances you describe, it sounds like it was something the doctors didn’t deem medically necessary but merely something that some patients can consent to, so they must be absolutely sure that the patient definitely consents to it. And they couldn’t be.

You say she’s non-verbal but capable of expressing her opinions and emotions - how much does she understand about sex, abuse, the prevalence of the abuse of vulnerable disabled people in the care system, whether other women are receiving intimate care from male staff or whether it’s reasonable for a woman to request intimate care from females only?

Presumably, the main opinions she is exposed to are those of you and your family and the care staff, who all agree that her receiving intimate care from men is fine, so it seems likely that she hasn’t been exposed to sufficient information to be able to freely consent to the situation she has been placed in by others.

The problem with stating that you’re fine with these particular male workers providing intimate care is the same argument used about women-only changing rooms - if you allow men in, you can’t only let the nice men in - you have to let all men in, regardless of how unsavoury or lacking in self-awareness or creepy they are.

So if you do move her to another facility that allows men to provide intimate care to vulnerable women, you might find that the male staff there aren’t as nice as the current ones, and you can’t pick and choose which men can touch her intimately based on how nice you think they are.

You say the longstanding male staff members are thinking of leaving because of the drop in pay. That may be true. Or it may be what they are telling people. How do you know it isn’t because their easy access to highly vulnerable women has now been stopped?

You're going to move your sister to another care home if you can't get the current one to agree to have male staff on duty overnight providing her intimate care?
Is this a wind up?

I don't like to go through life distrusting everyone, it's not who I am.

So wonderful that you don't let the possibility of your sister being abused affect your peace of mind. Well done you.