WPUK: NHS review of mixed sex accommodation

This is the WPUK written submission to the review of NHS mixed sex accommodation.

Representatives of WPUK also attended a meeting with other stakeholders which we were invited to at very short notice. As well as outlining concerns about any move away from single-sex provision, we raised concerns about the process of consultation and engagement with women stakeholders and organisations.

About WPUK

Woman’s Place UK (WPUK) is a grassroots feminist campaign which was formed by a group of women in the labour and trade union movement to uphold women’s sex-based rights and protections in the UK.

WPUK has been contacted by both NHS employees and women users of NHS services who are concerned by the risks of mixed sex accommodation.

A note on process

WPUK would like to place on record our dissatisfaction with the process of stakeholder engagement relating to this internal review.

WPUK was invited to a stakeholder engagement meeting with less than one week’s notice.
We were not informed that other stakeholders would also be present
We were not provided with any documents or materials to prepare for the meeting or to facilitate a common understanding of the purpose of the review
We have not been provided with a Terms of Reference or any information about the scope or purpose of the review

We believe this process falls well short of the high standards usually involved in NHS England and NHS Improvement stakeholder engagement processes.

Given the lack of information provided about the purpose and objectives of this review, we can only offer general comments on the policy of eliminating mixed accommodation in the NHS.

Delivering Same Sex Accommodation in the NHS

WPUK supports the government ambition to eliminate mixed sex accommodation in the NHS. We believe that providing single sex accommodation to patients is necessary to ensure the safety, privacy and dignity of all. Providing single sex accommodation is provided for by the Equality Act 2010 and is cited as an example of a legitimate use of the exceptions in the Act.

NHS England first published its ‘Eliminating Mixed Sex Accommodation’ policy in 2009 and since April 2011, it has been mandatory for NHS providers to report on breaches of this policy. Research was commissioned to inform the policy which found that single-sex accommodation was in the top three answers to the question “What matters most to patients, in terms of delivering privacy and dignity?”.

WPUK is unaware of any evidence that this has changed.

The policy refers to the need to ensure patients’ safety, privacy and dignity and concentrates primarily on sleeping and sanitary accommodation (including toilets and bathrooms) as well as day rooms for in-patient mental health facilities. Breaches of the policy can be justified in some circumstances, e.g. high specialised care facilities such as critical care units.

WPUK is concerned that breaches of the policy are commonplace and the understanding and application of the policy are patchy. The situation is further complicated by Annex B to the policy (‘Delivering same sex accommodation for trans people and gender variant children’). Noting that trans people need not have undergone any medical ‘reassignment’ procedures, the annex states that the policy applies to anyone “undergoing a personal process of changing gender…whether they live continuously or temporarily” in the other “gender”. Nor is it dependent on the individual’s possession of a Gender Recognition Certificate.

Annex B notes that “if the treatment is sex-specific and necessitates a trans person being placed in an otherwise opposite gender ward”, this is justifiable, giving the example of a trans man having a hysterectomy. It also notes that if a patient comes into the care of an NHS provider in an incapacitated or unconscious state, staff should make a decision about their accommodation via “inferences…from [their] presentation and mode of dress”.

This places frontline staff in an impossible situation where they are expected to make individual decisions that they know will result in mixed sex spaces. Often these decisions will be made in time-pressured situations. Staff should not be expected to make decisions about accommodation based on sex stereotypes about presentation. The current policy allows for a decision making process that would result in a woman with short hair and androgynous clothes being placed, unconsious, in men’s ward because of “inferences” made about her “presentation and mode of dress”.

WPUK understands from the stakeholder engagement exercise that the impetus for this review is to ensure the privacy and dignity of all groups. It is important to note that the policy of eliminating mixed sex accommodation affects all NHS service users and that sex and gender reassignment are the only protected characteristics that are relevant in the application of the exceptions set out in Schedule 23 of the Equality Act 2010.

Respect, Privacy, and Dignity in the NHS

As part of the stakeholder engagement exercise we were invited to attend, we were asked to consider the meaning of privacy, dignity and safety.

Respect and Dignity are written into the NHS Constitution:

“We value every person – whether patient, their families or carers, or staff – as an individual, respect their aspirations and commitments in life, and seek to understand their priorities, needs, abilities and limits. We take what others have to say seriously. We are honest and open about our point of view and what we can and cannot do.”

Providing single sex accommodation is a requisite for ensuring patient safety – both physical and psychological. Women should be safe from intrusive behaviours and should also have a reasonable expectation that they will receive trauma-informed care.

According to the Crime Survey of England and Wales (CSEW), for the year ending March 2020, an estimated 1.6 million women aged 16 to 74 years experienced domestic abuse in the last year. The same data set shows that 618,000 women experienced rape or sexual assault in the same year. Rape Crisis England and Wales calcuates that one in five women experience rape or sexual assault as an adult. Given the extraordinarily high prevalence of sexual violence against women and girls in the UK, trauma-informed care should be employed across NHS services. Placing already traumatised women in mixed sex wards may retraumatise victims and expose them to further abuse.

The threat to safety is not hypothetical. In 2009, Channel 4 discovered that almost two thirds of sexual assaults by patients occurred in mixed sex wards. The Health Service Journal reported last year that at least 1,019 sexual assaults were reported by female (and male) patients on mixed sex mental health wards between April 2017 and October 2019.

Research carried out by the Care Quality Commission raised concerns about the risk of sexual harrassnent and assault faced by mental health inpatients.

“People who have experienced inpatient care, and their families, told us that they find it difficult to talk about sexual safety incidents. They may be afraid to report an incident because the person who carried it out may still be on the same ward. If they do speak up, staff may be slow in reporting the incident and may not inform the patient of what action has been taken to protect them from further harm.”

A report by HealthTalk, included testimonies from mental health service users from ethnic minorities who had been subject to sexual harassment while on a mixed sex ward. Dolly’s testimony illustrates the risks that such settings pose to vulnerable women service users:

“Well my times in hospital have been very kind of, like I said, traumatic, you know. I remember the, one of the first times I was on a mixed ward, and there were kind of guys that would just pester you, you know, they wanted, you know, you to go out with the them, or they even asked me really abusive stuff, like, ‘Can you give me blow job?’ and stuff like that, and the nurses did nothing to kind of stop it. Even if you told them this was happening, they’d say, you know, they would just shrug their shoulders.”

Dolly, mental health service user

WPUK contends that privacy in this context not only relates to bodily privacy but also to privacy of information. It is imperative that NHS policy solutions do not depend on women disclosing past trauma in order to qualify for single sex accommodation. Such a policy risks retraumatising women or failing to safeguard women who simply are unable or unwilling to disclose their experience of trauma.

Unfortunately there are all too many examples of women’s dignity being overlooked or undermined in healthcare. Dignity is about being treated as fully human whose needs are valued. Many women have experiences of healthcare, often in relation to childbirth, which are dehumanising. The expectation that women should accept mixed sex spaces without complaint is continuous with this.

Applying the policy in practice

WPUK recognises the practical challenges facing NHS employees in meeting targets to eliminate mixed sex accommodation. Pressures on NHS funding, staffing, and accommodation have increased over the past period since the policy to eliminate mixed sex accommodation was introduced.

In many clinical settings, such as Accident and Emergency units and Intensive Care Units, clinical safety is the priority and may take precedence over other considerations about a patient’s right to dignity and privacy.

WPUK believes that the Annex B to the existing policy (and the previous Annex E) has created additional difficulty for staff trying to interpret and apply the policy in often stressful, safety critical and time pressured circumstances. It places staff in the impossible situation of having to make a judgement about a patient’s wishes based on sex stereotypes about clothing, hair and make up. The staff simultaneously have to try to make an assessment of the patient’s wishes while balancing that with the safety, privacy and dignity of other patients.

While recognising the considerable pressures facing the NHS, WPUK believes the rationale for working towards the elimination of mixed sex accommodation has not changed. The problem that the policy set out to resolve has not changed. This ambitious goal must not be abandoned either because it is deemed too difficult to achieve or because lobby groups contend that single sex spaces are discriminatory.

Conclusion and Recommendations

It remains unclear what NHS England and NHS Improvement are in the process of reviewing or the rationale for the review. In spite of this lack of clarity, WPUK can offer the following principles by way of recommendation to inform any review that relates to the policy of eliminating mixed sex accommodation.

Single sex accommodation is crucial to ensuring patient privacy, dignity and safety
Research has consistently shown that women dislike mixed sex wards.
Research also shows that many men also dislike mixed sex wards because they feel uncomfortable about intruding on women’s privacy
Further research – of comparable quality and scope to the research commissioned to inform the original policy – should be commissioned to understand if patients’ views have changed since the policy was introduced.
Research should be commissioned to gauge the impact of Annex B, both on patients and staff. Such research should not depend on monitoring the number of complaints made by patients as many women who may have been traumatised by their experiences in a healthcare setting will not voice their concerns or raise a formal complaint.
The application of the policy requires well trained staff as well as robust systems
Patients must be informed about which spaces are single sex (i.e. knowing that in ED, assessment units or ICU the space may be mixed sex, but that all other spaces will be single sex). This should be on all patient information leaflets related to hospital admissions.
The hospital should publish their breaches and their action plans to reduce breaches, which will involve analysis of their capacity for patients of each sex. Phenotypical sex should be the measure of a breach. NHS hospitals must consistently record sex as well as gender identity where relevant.
Staff need training and guidance to support them to understand some of the sensitiivties in making decisions about single sex accommodation. For instance, making judgements about a person’s gender identity based on their clothes, hairstyle, use of make up is sexism. Men can wear long hair and nail varnish. Women can have short hair and no makeup.
Staff need resources and options. If transgender patients cannot be placed in a bay/ward of own sex (for instance, for reasons of their own psychological needs or safety) then there must be greater provision of single en suite rooms to accommodate this.

WPUK

11th March 2022