Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #60

[nauticant]

Judgment was handed down on 8 December 2025:

https://assets.publishing.service.gov.uk/media/6936ce28a6fc97b81e57436a/S_Peggie_v_Fife_Health_Board__Dr_Upton.pdf

Sandie Peggie, a nurse at Victoria Hospital in Kirkcaldy (VH), 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 resumed on 16 July and the last day of evidence was 29 July 2025. It resumed again over 1 to 2 September for closing submissions.
Following handing down of the judgment on 8 December 2025, on 11 December 2025, it was announced by Sandie Peggie and her legal team that they would be pursuing an appeal.

The hearing was live tweeted by x.com/tribunaltweets and there's additional information here: tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-005 and tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-bd6.

Links to previous threads #1 to #50 can be found in this thread: mumsnet.com/talk/womens_rights/5379717-sandie-peggie-list-of-threads-covering-employment-tribunal-and-afterwards

Thread 51: mumsnet.com/talk/womens_rights/5402652-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-51 1 September 2025 to 2 September 2025
Thread 52: mumsnet.com/talk/womens_rights/5403218-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-52 2 September 2025 to 4 September 2025
Thread 53: mumsnet.com/talk/womens_rights/5404208-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-53 3 September 2025 to 1 October 2025
Thread 54: mumsnet.com/talk/womens_rights/5418690-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-54 28 September 2025 to 21 November 2025
Thread 55: mumsnet.com/talk/womens_rights/5447019-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-55 19 November 2025 to 8 December 2025
Thread 56: mumsnet.com/talk/womens_rights/5456749-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-56 8 December 2025 to 9 December 2025
Thread 57: mumsnet.com/talk/womens_rights/5457132-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-57 9 December 2025 to 11 December 2025
Thread 58: mumsnet.com/talk/womens_rights/5458443-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-58 11 December 2025 to 12 December 2025
Thread 59: mumsnet.com/talk/womens_rights/5459115-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-59 12 December 2025 to 17 December 2025

Thanks, I'll have a look.

@Peregrina
"Who makes these rules up?"

That's what I wondered.

This.

(I should make clear - the reason I presume this is the research that at least some of the policies are based on, is because the policies themselves cite this paper.)

The dementia in trans patient report is based on 11 participants none of whom were trans people with dementia

The Birmingham workshop was attended by seven participants. These participants included one lesbian carer of a partner with younger onset dementia, one gay man caring for his mother with dementia, and another lesbian caring for a friend with dementia. The London workshop was attended by three participants including a representative from DEEP. These participants
included a gay male ex-carer of a partner with dementia. A further interview was conducted
with a gay male ex-carer (aged 76). Therefore, in total, 11 individuals participated in this project.
Despite extensive advertisement (including blog entries1 and promotion through the
Alzheimer’s Society) unfortunately there were no individuals with dementia who identified as
LGBTQ present at the phase 1 meetings, which meant that it was not viable to operationalize
the second and third phrases of the project as outlined in Involvement Fund application form

Derailing to mention that Allison Bailey lost her appeal. Thread: https://www.mumsnet.com/talk/womens_rights/5461249-allison-bailey-judgement?page=1

Gold stars to @spannasaurus!

@spannasaurus

The dementia in trans patient report is based on 11 participants none of whom were trans people with dementia

Ah, the old not-based-on-facts-or-any-measurable-parameters-research type of research then.

A woman who is unconscious, confused, high or non verbal does not have capacity to consent to anything. In this situation doctors will act in what they consider the patient's best interests so it would not be assault for Upton to treat her.

To explore that a bit, what about a woman who before falling unconscious in say resus clearly said that she wanted any intimate examination or care to be carried out by a female woman? Should we bring back the old days of anaesthetised women being used for practice purposes by medical students?

And also I didn't know that being non-verbal equated to lacking capacity

It depends... A non-verbal patient is likely to lack capacity but it is not a given.

If a patient has expressed a wish for intimate examination or care to be carried out by a female woman then falling unconscious doesn't negate that request.

I wonder what would happen in the situation described above if the trans doctor examined the unconscious patient despite knowing she had asked for female care, and an attendant nurse blew the whistle on him?
My guess is a disciplinary for the whistleblowing nurse, at Fife, anyway. She would probably be branded a bully and a liar, and a transphobe, of course.

Why is it "likely"? And if it depends how is capacity or not established?

It's likely because they are non-verbal that they won't have capacity. To establish capacity you need to be sure that the patient can

1. understand the information relevant to the decision.
2. retain that information for long enough to make the decision.
3. use or weigh up that information as part of the process of making the decision.
4. communicate their decision in any way

Number 4 makes it unlikely that a non-verbal patient will have capacity although it does not exclude it as just because you are non-verbal doesn't mean that you cannot communicate in any way.

Do you count someone who communicates solely in sign language as lacking capability because they are non verbal. What about someone who uses a switch to communicate via a voice machine?

Of course someone who communicates solely in sign language can have capacity. You don't need to be able to speak just to be able to communicate. Stephen Hawking was non-verbal.

Would have been helpful for you to have qualified your initial post accordingly.

No, we should not. However, if a patient needs urgent care and the only doctor available is male, that doctor can treat her notwithstanding her clearly expressed desire for a female doctor. This is, of course, rather different from Upton who was clear that he would treat a patient who wanted a female doctor regardless of whether it was an emergency and notwithstanding the presence of female doctors.

Slight change of subject but I was reading back about the Kristie Higgs case which surely means that Judge Kemp was wrong about this point too?

The judgment confirmed that robust speech is protected as a “manifestation” of a religious or philosophical belief – the threshold for “objectionable” expression is high, and employers should not not act disproportionately based on subjective activist complaints.

I'm not sure why are you so invested in my throwaway remark. It's my clinical experience that a non-verbal patient is very likely to lack capacity for the obvious reason that they cannot communicate adequately. Perhaps your experience is different?

Is that right tho? A capacitous patient is entitled to refuse treatment, however unwise that decision might seem. If a patient says i don't want a male doctor touching me then what do you do? Physically restrain her to allow examination?

You are describing a ludicrous situation that could never arise. If a patient has capacity they can refuse treatment or refuse to be examined by a male doctor & that's the end of it. If a patient lacks capacity they will be treated in their best interests which might involve being physically restrained. One would aim to use the minimum amount of restraint for the smallest amount of time to achieve the objective all in the best interests of the patient lacking capacity

Maybe because the apparently correct surmise was that you are a clinician and "throwaway" remarks of this type don't inspire a whole lot of confidence and trust?

Don't worry I'm retired so whether you have confidence in me or not is moot. I'm surmising that your lack of knowledge around assessment of capacity means that you are not a clinician.