Updating the NHS Constitution

The NHS Constitution is a crucial document that sets out commitments to patients and staff. All NHS bodies, and private and third-sector providers supplying services in England, are required by law to take account of the constitution in their decisions and actions.

As part of the 10-year review, new provisions have been proposed which make clear that sex matters:

1. Same-sex intimate care: adding a commitment that “patients can request intimate care be provided, where reasonably possible, by someone of the same biological sex”.
2. Single-sex accommodation: adding a clarification to the provision on same-sex accommodation to say that it relates to “biological sex”.
3. Recognising the importance of sex: adding a right to “access to health services” stating: “You have the right to expect that NHS services will reflect your preferences and meet your needs, including the differing biological needs of the sexes, providing single and separate-sex services where it is a proportionate means of achieving a legitimate aim.”
4. Reflecting the Equality Act 2010: Changing the language from “gender” to “sex” where the protected characteristics are listed.

We broadly welcome these changes, which support clarity about sex in the NHS to protect patients’ rights. 

We have submitted a detailed response to the consultation, and you can read it here:

In it we argue: 

1. It is important to clearly recognise the reality of the two sexes in order to be able to communicate and enforce policies consistently, fairly and lawfully. 
2. Most people want the option of same-sex care, and many people prefer it in practice. 
3. Respecting these preferences, and providing information to enable people to consent to care, are a matter of fundamental human rights (Articles 3 and 8). 
4. If a patient is unable to consent or to communicate her preference, same-sex staff should be the default option for personal and intimate care. 
5. It is unsafe to misrecord information about a patient’s sex in their healthcare records, and impossible to keep patients safe in hospital while keeping a patient’s sex secret. 
6. Same-sex care and single-sex accommodation are not always possible or necessary. However, it is NEVER acceptable to mislead a patient about the sex of a healthcare professional in order to obtain apparent consent, or to mislead a patient into thinking they are in a “single-sex” space when they are in fact sharing with a member of the opposite sex. 
7. Patients should be accommodated in wards, bays and rooms based on their actual sex and according to clinical need.
8. Transgender people have the same human rights as everyone else. Their reasonable personal privacy and dignity should be respected, but this does not mean a person with a transgender identity can override other people’s rights. Everyone in the healthcare system should understand that human beings cannot change sex. 
9. Consistency and reliability of data and policies are important. Policies that mean sometimes misleading patients about sex, or sometimes mis-recording data on sex, undermine the integrity of the entire healthcare system, since they mean that no promises or information can be trusted. 
10. The proposed changes to the NHS constitution use the phrase “biological sex”. It is, however, important that everyone in the NHS understands that “sex” (unqualified by “biological”) and related words such as male and female, man and woman, girl and boy refer to the ordinary common-law understanding of the two sexes. 

Returning sex to its rightful place in the NHS will require a major cultural shift. It will take changes in policy and training, the removal of activist organisations that seek to undermine understanding of sex, and recognition by the Care Quality Commission (CQC), which regulates the healthcare system, that sex is real and that sex matters. 

Both the NHS and the CQC are currently mired in confusion about sex and gender. This destroys the integrity of care in several ways. 

• A long-standing commitment to “single-sex accommodation” in hospitals has been undermined by the Annex B policy, which says people should be allowed to use opposite-sex spaces on the basis of their gender identity. 
• Data systems are unclear about sex. 
• The personal identity of healthcare professionals is allowed to override patient consent, and NHS staff have been trained by Stonewall and others to view any challenge to this as transphobic.
• The CQC obfuscates the distinction between sex and gender identity, saying that all reasonable efforts should be made to accommodate requests for personal and intimate care by “staff of a specified gender/sex”.

Clarity about the Equality Act would support the necessary culture shift

Healthcare staff, NHS managers and regulators have been mis-educated to think that the Equality Act is a sex-change act that requires them to treat trans-identifying patients differently from other patients of the same sex. This is false. The same standards of care, based on clinical need, should be applied to everyone. 

The proposed new wording reflects the protected characteristics in the Equality Act:

“You have the right not to be unlawfully discriminated against in the provision of NHS services including on grounds of sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity or marriage and civil partnership status.”

Male patients who identify as transgender, non-binary, gender-fluid, transfemme, transwoman or any other gender identity, and who are placed in male accommodation, are not being treated differently from other male patients. They are being provided the same service as other male people. (The same applies in reverse to female patients who identify as transgender and are placed in female accommodation.)

Treating and recording a patient as if their gender identity is their sex not only puts that patient’s health at risk (they might be given the wrong diagnosis or medication), but also leads to a hostile and humiliating environment for other patients, with the risk of hospitals becoming liable for sex discrimination, sex-based harassment and belief discrimination. These facts remain true whether or not the patient has a gender-recognition certificate.

The same considerations apply to trans-identifying healthcare staff. In order to respect the rights of patients, it must be communicated to such staff that they will be expected to be clear and honest about their sex. This is necessary so that they meet expectations of professional conduct, and in order that they do not think their identity gives them the right to override the consent of patients or colleagues. 

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out the requirements for a fit and proper person to work in health and social care, and the fundamental standards to be met by providers of care. These include: 

• Person-centred care: you must have care or treatment that is tailored to you and meets your needs and preferences.
• Dignity and respect: you must be treated with dignity and respect at all times while you’re receiving care and treatment.
• Consent: you (or anybody legally acting on your behalf) must give your consent before any care or treatment is given to you.
• Safety: you must not be given unsafe care or treatment or be put at risk of harm that could be avoided.
• Safeguarding from abuse: you must not suffer any form of abuse or improper treatment while receiving care.
• Complaints: you must be able to complain about your care and treatment.
• Good governance: the provider of your care must have plans that ensure they can meet these standards.
• Duty of candour: the provider of your care must be open and transparent with you about your care and treatment.

It is not possible to meet these standards while misleading patients about the sex of those providing their care, coercing them into pretending not to notice, or calling them transphobes if they refuse to engage in this pretence. 

Providers of care are required to employ “fit and proper staff”: people who can provide care and treatment appropriate to their role within these standards. Maintaining clarity throughout the NHS about the importance of sex has implications for healthcare professionals. It means that anyone who refuses to be straightforward and transparent about the fact of the two sexes, or to understand that such clarity is essential to ensure everyone’s consent and dignity are respected, is not a fit and proper person to manage or deliver care. It is not unlawful discrimination to expect health and care managers and staff to satisfy professional requirements to respect the consent, safety and dignity of patients. 

Politicians and NHS managers have a choice. They can either reject demands that gender identity is allowed to override sex and write rules that protect everyone’s human rights; or find themselves embroiled in protracted, expensive and embarrassing litigation. Strengthening the recognition that sex matters in the NHS Constitution is a first step towards making the right choice.