NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #26

[nauticant]

Sandie Peggie, a nurse at Victoria Hospital in Kirkcaldy (VH), has brought claims in the employment tribunal against her employer; Fife Health Board (the Board) and another employee, Dr B Upton. Ms Peggie’s claims are of sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation. Dr Upton claims to be a transwoman, that is observed as male at birth but asserting a female gender identity.

The Employment Tribunal hearing started on Monday 3 February 2025 and was expected to last 2 weeks. However, after 2 weeks it was not complete and it adjourned part-heard. It is planned that it will resume on 16 July and the last day of evidence will be 28 July and then there will be 2 days of submissions from counsel meaning that the hearing will end on 30 July.

The hearing commenced with Sandie Peggie giving evidence. Dr Beth Upton gave evidence from Thursday 6 February to Wednesday 12 February.

Access to view the hearing remotely was obtainable by sending an email request to [email protected] headed Public Access Request (Peggie v Fife Health Board) 4104864/2024 and requesting access. However, as a result of problems with the livestreaming, apparently caused by a very large number of observers, remote public access to the hearing was suspended on Tuesday 11 February. It was doubtful whether pubilc access for remote viewing would be reinstated but recent developments (as of mid May) suggest that this might actually become available again.

The hearing is being live tweeted by https://x.com/tribunaltweets and there's additional information here: https://tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr. This also has threadreaderapp archives of live-tweeting of the sessions of the hearing for those who can't follow on Twitter, for example: archive.is/xkSxy.

An alternative to Twitter is to use Nitter: https://nitter.poast.org/tribunaltweets

Thread 1: https://www.mumsnet.com/talk/womens_rights/5186317-nhs-fife-tries-to-silence-nurse
Thread 2: https://www.mumsnet.com/talk/womens_rights/5267591-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-thread-2
Thread 3: https://www.mumsnet.com/talk/womens_rights/5268347-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-3
Thread 4: https://www.mumsnet.com/talk/womens_rights/5268942-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-4
Thread 5: https://www.mumsnet.com/talk/womens_rights/5269149-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-5
Thread 6: https://www.mumsnet.com/talk/womens_rights/5269635-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-6
Thread 7: https://www.mumsnet.com/talk/womens_rights/5270365-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-7
Thread 8: https://www.mumsnet.com/talk/womens_rights/5271511-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-8
Thread 9: https://www.mumsnet.com/talk/womens_rights/5271596-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-9
Thread 10: https://www.mumsnet.com/talk/womens_rights/5271723-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-10
Thread 11: https://www.mumsnet.com/talk/womens_rights/5272046-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-11
Thread 12: https://www.mumsnet.com/talk/womens_rights/5272276-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-12
Thread 13: https://www.mumsnet.com/talk/womens_rights/5272398-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-13
Thread 14: https://www.mumsnet.com/talk/womens_rights/5272939-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-14
Thread 15: https://www.mumsnet.com/talk/womens_rights/5273119-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-15
Thread 16: https://www.mumsnet.com/talk/womens_rights/5273636-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-16
Thread 17: https://www.mumsnet.com/talk/womens_rights/5273827-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-17
Thread 18: https://www.mumsnet.com/talk/womens_rights/5274332-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-18
Thread 19: https://www.mumsnet.com/talk/womens_rights/5274571-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-19
Thread 20: https://www.mumsnet.com/talk/womens_rights/5275782-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-20
Thread 21: https://www.mumsnet.com/talk/womens_rights/5276925-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-21
Thread 22: https://www.mumsnet.com/talk/womens_rights/5280174-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-22
Thread 23: https://www.mumsnet.com/talk/womens_rights/5285690-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-23
Thread 24: https://www.mumsnet.com/talk/womens_rights/5301295-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-24
Thread 25: https://www.mumsnet.com/talk/womens_rights/5318518-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-25

This is policy from West London NHS trust:

Observation
Observation of clothed patients is not normally gender specific. Observation of
trans people which may include intimate observation, e.g. bathing, will generally
be performed by a member of staff of the same sex as the trans person’s
presenting gender. However it is important to ask the patient if they have a
preference relating to gender of the nurse that is carrying out their intimate
observation or search.

[…]

In the early stages of transition, where a trans man still has many female
physical features, with the consent of the patient, it would be appropriate for a
female nurse to perform searches and observation and vice versa. However,
this should only be undertaken with the consent of the patient. Staff must
treat all trans people the same as any other patient. Personal or religious
objections are not acceptable reasons for failing to adhere to this policy.

[Emphasis mine]

That would be the thin end of a very dangerous wedge. So you have two oncologists - one who treats men and the other who treats men and women. What happens when the ethical doctor goes off sick? Or on holiday? What if the misogynist was the only one with trained in a specific technique? What if he also refused to speak to his female colleagues? Or only wanted to work with male junior doctors? Or only treat Muslims?

Thank you. Again, this would need testing in tribunal so I may be wrong, but my view is that the policy may be unlawful. That seems to be saying that trans rights are more important than rights based on religious beliefs or GC beliefs. There is no such hierarchy in law.

The difference here is the trans individual is just that, an individual, and a patient. Whereas the NHS is a service provider.

prh47bridge Isn't the main issue in the case of Upton the other way around, ie. with the Dr demanding the right to treat members of the opposite sex, over-riding their consent when NHS Policy provides for the patient to ask for same-sex care?

I realise "ask" does not mean the request can always be met and also that "passing" (or not) as the opposite sex should not be a consideration.

It would be consistent of Upton if he also demanded to be excused from attending to male patients in some circumstances.

I haven't followed the case closely enough so far to know. Did he do this as well?

ETA who I was replying to - this thread is moving so fast!

DOI I'm a retired A&E consultant. I cannot think of any hospital departments where the needs of the service could accommodate a doctor who would only see members of the same sex apart from obstetrics & gynaecology. With nursing staff you could elect to work on a single sex ward but even then at times males may need to be accommodated on a female ward because that is the only bed available (real males that is not males pretending to be women😀).

Some of your "slippery slope" arguments are based on things that definitely would not pass muster as protected beliefs.

If the other doctor goes off sick or on holiday, you have to get cover or rearrange appointments appropriately. You can't expect one doctor to do the work of two.

Observation of
trans people which may include intimate observation, e.g. bathing, will generally
be performed by a member of staff of the same sex as the trans person’s
presenting gender. However it is important to ask the patient if they have a
preference relating to gender of the nurse that is carrying out their intimate
observation or search.

Wow. That is sanctioning sexual assault and harassment, IMO. A woman could be expected to observe a man with woman-gender bathing and a man could observe a woman bathing. And if the patient asks for a woman she might be presented with a man with woman-gender. It's awful. Sex has to mean sex for one thing, and women's dignity, privacy and safety has to be respected. Can't see how these policies can be lawful.

Edited for accuracy.

Happy to bow to your experience. As I say, I am only offering a tentative view. It would need someone to take an NHS trust to tribunal to find out for sure how the law treats this.

Just to take your oncology example. There will be just one consultant on call at night & on weekends who may need to come in to the hospital if the juniors need support. There may be just one junior looking after all the oncology patients overnight.
How can a consultant supervise a registrar or a registrar supervise an SHO if they refuse to touch half the patients? Apart from O&G it would be quite unworkable if a doctor is only prepared to treat one sex.

Agree completely.

I don't think Upton has ever demanded to be excused from attending to male patients. However, he has very clearly expressed the view that he can treat female patients even when they have specifically requested a female doctor and one is available.

Oncology may not be the right example. Perhaps I should have gone for a GP practice with half a dozen GPs.

It’s a tricky topic!

Female patients tend to gravitate to female GPs anyway but I still think it's unworkable. Even in a GP practice with half a dozen GPs there will be occasions where there is only one GP on the premises & a patient needs to be seen.

I've been looking at the GMC guidelines. Refusing to treat a patient of the opposite sex would be unethical as you may not refuse to treat patients because of your personal beliefs. If you refused to treat a patient of the opposite sex you could be struck off.

www.gmc-uk.org/professional-standards/the-professional-standards/personal-beliefs-and-medical-practice/personal-beliefs-and-medical-practice

The policy seems to be incoherent in the same way that the SC judged that the EA2010 could not refer to "certificated sex" as it rendered the Act incoherent.

If "Staff must treat all trans people the same as any other patient." then that surely rules out this earlier part:

"Observation of trans people which may include intimate observation, e.g. bathing, will generally be performed by a member of staff of the same sex as the trans person’s presenting gender."?

Otherwise a male staff member could excuse irregular "intimate observation" by arguing that the patient was "presenting as a man", eg. by wearing trousers or having short hair, ie. in the same way that staff are currently required to allocate patients to wards based on their "presenting gender" wrt to clothing etc. under Annex B if the patient is unable to indicate a preference:

"If, on admission, it is impossible to ask the view of the person because he or she is unconscious or incapacitated then, in the first instance, inferences should be drawn from presentation and mode of dress. No investigation as to the genital sex of the person should be undertaken unless this is specifically necessary to carry out treatment."

I can’t remember the proper phrasing, but clinicians can object to being involved in a small number of procedures, such as abortion on the grounds of their religion. However, they cannot refuse to treat patients in an emergency, such as a post termination bleed.

I don’t think I’ve ever come across people refusing to treat people of the opposite sex though.

Having looked into it, I don't think it is a genuine issue. This was raised in the context of a devout Muslim. Having done a little research, it seems the rules for a female Muslim needing treatment are that they should be treated by a female Muslim doctor. If no such doctor is available, a non-Muslim female doctor is acceptable. If that is not possible, a male Muslim doctor should treat her, with a male non-Muslim being the last resort. I therefore doubt that Muslims would refuse to treat someone of the opposite sex, and I don't think it is an issue in any other religion. However, if there is a religion that bans doctors from treating patients of the opposite sex in non-emergency situations, I am not sure how the courts would regard the kind of policies and situations being discussed here.

All this assumes that the NHS Trust has been able to recruit sufficient staff who are prepared to treat both sexes, whether employed or as agency staff.

If not then the situation would parallel that where there could be no medics and/or nurses available who are willing to perform abortions.

I am absolutely certain that a medical professional can never use their religious beliefs to refuse treatment in an emergency.

Overtaken by events! I think this possibility has been covered and ruled out by PrettyDamnCosmic here:

www.mumsnet.com/talk/womens_rights/5335861-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-26?page=7&reply=145564220

FWIW, I don't think any of the world's major religions have an ideological ban on a male doctor treating a female patient.

There may be preferences from the patient's side, based on religious practice, but that's different.

I agree, so I think the whole discussion is taking us down a rabbit hole, for which I apologise.

But you just said it is discrimination against a doctor to not let them discriminate against paitients. So now you are saying this only applies to some doctors?

Wish you'd been around to explain that to every NHS dept. for whom I have ever worked! (There will be some sharing with juniors and other departments, but there will be an irreducible minimum of clinical decisions the remaining doctor has to make - only treating one sex could never work except perhaps in a supernumary post in an over-staffed London teaching hospital.)

edited typo

No, I'm not saying that at all. I was trying to give an example where the doctor's refusal to treat women based on religious beliefs would have minimal impact on patients - they wouldn't get treated by that doctor, but there would be other doctors who could treat them so they would not be discriminated against by being refused medical care.

This is an unproductive rabbit hole as I don't think any religion prevents doctors treating patients of the opposite sex. However, what I am saying is that, if such a religion existed, adherents to that religion have rights under the Equality Act and I am not convinced the courts would decide that it was lawful to discriminate against them based on their religious beliefs just because they want to work in health care. And, although I've followed the first post that mentioned this by referring to a male doctor who had religious reasons for not wanting to treat women, whatever the courts decided would apply equally to a female doctor who had religious reasons for not wanting to treat men.