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

I am not a clinician neither do I claim any expertise in assessing capacity. Stating that an inability to communicate "adequately" points to a lack of capacity simply prompted my queries and responses.

Sorry I thought that it would be blindingly obvious that an inability to communicate adequately points to a lack of capacity.

I don't think that anyone has linked to this article from Fife Today. It came up in my FB face. Already, one of the people vociferously supporting Upton has left a contemptuous comment.

https://www.fifetoday.co.uk/health/serious-concerns-raised-over-nhs-fifes-handling-of-freedom-of-information-requests-5448179?utm_social_handle_id=187866531261391&utm_social_post_id=626661684

"A spokesperson for NHS Fife said: “NHS Fife can confirm that we have received a level four intervention notice from the SIC in relation to our handling of freedom of information requests.
“This follows constructive engagement with the commissioner earlier this year..."

This is pretty much like an atrocious employee announcing that they are on a final written warning, folowing constructive engagement with the boss.😂

I am a clinician and I also lecture on capacity. What @PrettyDamnCosmic has missed is that there is a positive duty on the clinician to explore options to allow the patient to communicate by alternative means. I can envision situations where someone has the ability to absorb information and weigh it up to make a decision, but cannot communicate it by any means, however they are pretty rare. Simply being non-verbal wouldn't count. I have certainly seen many non-verbal patients who have capacity and are able to communicate their decision in other ways than speaking.

There is not a human being alive who sees a woman when they look at Upton.
Not even one.
He's a tall broad balding man, with big man hands and feet, big man head, forehead, jawline, nose, ears, shoulders, arms and legs. A 9 month old baby would point to him and say "daddy" meaning "man".

Any female patient should be allowed to have a female doctor if they request it or at least a male doctor who is not mentally ill.

I wouldn't let him touch me with a barge pole and would have zero faith in his ability as a doctor when he thinks he's a woman ffs.

The "Joanna Harper Methodology", I believe.

It's helpful to get a more nuanced view. But potentially worrying about the divergent positions between clinicians. Nauticant may be cross about the filling up of the thread. But here you go. Scenario: sepsis in lower limb. Surgeons amputate. Knowing that life long after care is probably crap. Do they just leave all that bother at the operating theatre door/job done?

This is so bizarre. Joggers and a t-shirt. They really have to go some way down the sex stereotype route for this to even be an issue. Joggers and a t-shirt / jumper in neutral shades is so bloody easy for all.

It's a staged decision-making process.

1. Does the patient have capacity? If yes, explain the options and they have the right to accept/refuse the amputation (even if they are refusing for reasons you think daft and that refusal kills them).
2. If no, can you reasonably wait for them to regain capacity? (E.g. patient is drunk and incapable, but the decision will wait a few hours til they sober up.) If yes, wait.
3. If no, does the patient have a valid Advanced Decision to Refuse Treatment? If yes, abide by it. (So if they have an Advanced Decision saying no blood products under any circumstances you may do the amputation but, if they bleed out, so be it.)
4. If no, is there someone with a valid power of attorney? If yes, consult them on the decision and do what they say. However, their word is not the final word. If a patient with capacity makes a decision for, uhhh, unusual reasons then that decision sticks (it's their body); if the attorney makes a decision which is patently not in the best interests of the patient then it can be overridden. So if the patient declines the amputation because not being able to paint their toenails will make them sad then that's their call; if an attorney declines on that basis a court can override it.
5. If no, the clinician makes a best interest decision. Importantly, that's not the decision that the clinician would make in the same circumstances. It's the decision the person would make in their own best interests were they able to do so. So the clinician should take into account their previously expressed wishes and attitudes to healthcare, as well as the views of those close to them. Those close to them are not making the decision (that's for the clinician) but giving the clinician insight into what decision the patient might have made. If there is noone close to the patient, you should consult an Independent Mental Capacity Advocate who can be their voice. The decision should be the least restrictive practicable in the circumstances.

I have, thankfully, no need to insist on a female medic and would have no issue with a male for an intimate procedure if necessary.

I would absolutely not wish that male to be presenting as female. I would doubt his sanity and grip on basic medical facts. Frankly, he would give me the creeps.

I haven't digested all of that but re your point 3. I will chop off your leg and just wait for you to bleed out? Because I am obvs acting in your best interests? Are you serious?

Not what I'm saying. What I'm saying is if you have a valid advance directive refusing blood products you will not get blood products, even if that means you die. That may mean the surgery doesn't happen (because it's too high risk) or it may mean that the surgery will happen with everyone doing their utmost to minimise blood loss as that's a less bad option than standing back and watching you die of sepsis. Clearer?

The judge seemed to think it wasn't obvious. Bizarrely.

No it's not clearer actually. Where do you see the medical profession in a possible hierarchy in dictating moral certainties? And to come back to the genesis of these threads where are you on biology? Do you think /believe that Dr Upton is a biological female?

Can anyone lay their eyes on and call out the section where the judge commented on this? I'm curious if an appeal court will override this or not, given the significance placed on the first instance tribunal's findings of fact. Also whether an appeal court thinks it matters how well a trans identifying person 'passes'.

For example if a Jehovah's Witness had to have an amputation, IIRC their religion forbids blood transfusions.

FWIW I think a good rule of thumb for any male doctor to abide by would be no intimate health care on any female patient who has not expressly given their consent, unless it is an emergency situation and they are the first HCP to attend.

What I don't understand is why it's currently so arse about face (IMO), with the onus on the patient to expressly not consent to male HCP intimate health care. That's a really stupid way to do it from my perspective.

It can be possible to communicate with someone who has lost all language at a cortical level and can only unreliably express assent or dissent. One case I know of it took more than 6 months of intensive effort by a psychologist to convince themselves that the patient wanted to be kept alive. But, without any comprehension of speech, capacity for more abstract decisions is not possible to demonstrate. And there is every range of ability from that to normal comprehension of language but severe communications difficulties. Which entails a lot of skilled work that is not always available.

Really enjoyed this but goodness it was challenging for an English reader! The Kindle dictionary was useless, telling me 'no definition found' for most of the words I had to look up.😡

Did you find the Scots Language Dictionary online?

Here you are, for anyone who'd like to look: https://dsl.ac.uk

Thank you very much for that link. I might reread the story and look up some of the words I couldn't work out.
I could just about follow the story, but I think I lost a lot of the atmosphere due to struggling with the language.

Paras 60-62. My emphasis.

60. The second respondent has identified as female since around January 2022, being fully open about that in public since around August 2022. The second respondent since 2022 has used the female names of Elizabeth and Beth, and female pronouns; has sought to have an appearance as a female; has worn clothing that is consistent with what is generally regarded as feminine in style; and has worn makeup in what is generally regarded as feminine in style. The second respondent presents in what is generally regarded as a feminine manner including as to having a long hairstyle worn in what is generally regarded as feminine in style, and a pitch and tone of voice consistent with that for a female. The second respondent has been presenting as a female in such a manner since prior to working at the hospital, and throughout the period since commencing at the department.
61. The second respondent is not a person who is obviously male from external appearance. Some people meeting the second respondent in a work or social setting unaware of the sex assigned at birth for the second respondent are likely to consider the second respondent to be of the female sex. Other people meeting the second respondent in such circumstances, or after more detailed interactions with the second respondent, are likely to consider the second respondent as someone assigned male by sex at birth.
62. The second respondent is about six feet tall. The claimant is about five feet four inches tall.

Thanks to that dictionary I now understand "threep it doun their thrapples" which was the bit that baffled me the most.

"Some people are likely ... to consider 2nd respondent to be of the female sex ... other people are likely (or after more detailed interactions with 2nd respondent) ... to think they are male"

Who are these Some People? Where is the evidence for these assertions?

😬