Trans healthcare professionals and patient consent

In services where sex matters, there are real practical conflicts between the interests of people who wish to be treated as if they are the opposite sex, and the rights, interests and safeguarding of others. This requires careful and grown up policies, not just a celebration of diversity, backed up by good intentions and hope.

Your relationship with medical practitioners is one of these situations.

Patients are vulnerable people, and doctors and healthcare systems have power. The revelation of decades of abuse of patients by Jimmy Savile across dozens of NHS hospitals led to to intensive investigations, and safeguarding improvements across the healthcare system. So too have cases of doctors sexually abusing patients. And there have also been challenges to routine practices, which previously ignored consent, such as medical students practising intimate examinations on anaesthetised female patients.

Healthcare providers now have rafts of policies to protect patients and ensure their informed consent. Then there is the Care Quality Commission whose job is to inspects hospitals, GPs surgeries and social care services asking; are they safe? Are they effective? Are they caring? Are they responsive to people’s needs, and are they well led?

It is a basic matter of consent that patients can choose to be seen (at least for primary care) by a doctor or nurse of a particular sex. No justification is needed, but obvious reasons include feeling more comfortable, religious codes of modesty or a history of abuse or trauma. Intimate examinations in particular can be embarrassing or distressing, and it is common that girls and women prefer to be seen by a female healthcare professional for these procedures.

It should go without saying, but when someone is putting their fingers inside your vagina, consent matters.

The General Medical Council in its ethical guidance tells doctors:

You must treat patients as individuals and respect their dignity and privacy

You must treat patients fairly and with respect whatever their life choices and beliefs

NHS policy is that patients can choose to see a male or female General Practitioner. The GMC advises that chaperones should also be routinely offered, whatever the sex of patient or practitioners. The chaperone’s main responsibility is to provide a safeguard for both parties and to act as a witness to continuing consent. Hospital policies generally state that chaperones should be of the same sex as the patient (unless the patient prefers otherwise).

A clinic which goes against a patient’s request for a GP of a particular sex, or that pressurises them to decline to have chaperone is not respecting consent. Systematically putting emotional pressure on patients to submit to this would be institutional abuse.

How do policies for medical staff transitioning deal with patient consent and preference over the sex of the person examining them?

There is no national approach to transitioning at work in the NHS, but regional trusts often have policies (For example these ones from West Suffolk, Cambridgeshire and Peterborough, Brighton and Sussex). The NHS trust policies are all slightly different but cover similar “acceptance without exception” ground, following the recommendations of organisations like GIRES. I have not been able to find one which considers how accommodating the desire of some health care professionals to be treated as a member of the opposite sex at all times interacts with the rights of patients. This is a policy blindspot.

The British Medical Association recently passed a motion in support of legal self-ID, calling for trans healthcare workers to be are “able to access facilities appropriate to the gender they identify as” and “ensure trans people are able to access gendered space.” (by “gendered spaces” they mean single sex spaces — spaces where other people do not expect or consent to share with members of the opposite sex). They do not mention how they would deal with the interaction between healthcare workers self ID and patients’ rights, dignity and consent in relation to choosing and knowing the sex of those examining them.

When a male GP ‘becomes a woman’

The Guardian last week ran a story “Meet the trans key workers treating, teaching and serving the UK” which featured a transgender GP, Dr Kamaruddin. Dr Kamruddin is a GP partner at the East One practice in East London.

Dr Kamaruddin has written and been interviewed about transitioning at work as a GP in British Journal of General Practice, Transgender Living (2017), a three-part series in Malaysians in Medicine (2020), Newsweek (2020). The Royal College of General Practitioners gave Kamaruddin an “Inspire award” for member of the year in 2019.

Dr Kamaruddin’s celebrated story illustrates the risk to patients’ dignity, privacy and respect for their beliefs if their are no policies to protect them, and the fact that there are no policies.

Dr Kamaruddin is one of four GP partners at the East One Practice. GP Partners invest financial capital as co-owners and have large degree of control. They make hiring decisions and decide how things are organised and run. The practice’s patients are amongst the most deprived fifth of the population of England, with a large Bangladeshi muslim population, many speaking English as a second language.

At the age of 53, after being a partner at the practice for 15 years Dr Kamil Kamruddin decided to transition to live as a woman. Dr Kamaruddin recounts announcing the decision to the other three partners and their joint employees during a regular monthly practice meeting,

My colleagues and staff welcomed the news without much surprise. They voiced their support and even gave a round of applause.

When the other partners and staff raised the question of how to explain this to patients Kamruddin said:

I told them that I would tell them myself, I wanted to carry that burden.

In the Newsweek article: Kamaruddin describes the first day coming to work in the new identity of Kamilla “with a big smile and a bright dress”, having had facial surgery, a hair transplant and other non-specified surgery.

Kamaruddin called it “a satisfying experience”. The GP recounts compliments and congratulations and fantastical cases of mistaken identity “One of my colleagues did not recognise me at first, thinking I was a female locum GP. But it was my patients who took me by surprise the most. No one was hostile towards me. Some thought I was the wife of Dr Kamaruddin, me, their doctor, and a lot of them thought that I was a new GP. “

In the end, my staff did not have to field any awkward questions or hand out any leaflets.

Kamruddin is out and proud (and celebrated with awards and prizes) as a trans woman in public life, but on East One’s website the family doctor is now listed simply as “female”.

As well as the celebrated lack of leaflets and “awkward” questions in person, the practice’s website does not offer any information to patients who want to understand what “transgender” means or how they can clearly and simply ask for a female doctor .

Nor does it include any information about the chaperone policy.

Kamaruddin says new patients “did not ask any questions at all because they either thought I was a female GP or it did not bother them at all that I was a transgender doctor.”

This account raises questions:

• Is it appropriate for an individual doctor to announce a plan to transition at an all-staff meeting rather than to first work out with appropriate safeguarding and other leads, a plan which considers how to inform patients and secure their dignity, privacy and consent when being examined?
• Is it appropriate for the transitioning person to decide unilaterally that they alone will be the one to explain their transition to patients? Is that an appropriate plan?
• If patients are given no leaflets and did not asked “awkward questions” how can the surgery be sure that patients are giving their informed consent for accepting a male doctor when they have asked for a female doctor (for example do they understand that transition does not necessarily involve genital surgery? )
• How are the rights and interests of patients secured by a policy and information system that will now book them an appointment with a male doctor when they have specifically requested a female?

Can anyone ask these questions without being called a transphobe? And if not who is protecting patients’ interests?

Intimate examinations without a chaperone as a show of acceptance

Again and again, across different platforms Dr Kamaruddin discusses female patients, mainly Muslim women, allowing intimate examinations without a chaperone, as a positive experience validating the doctor’s new identity.

After my transition, they even allowed me to perform more intimate examinations that they did not let me to do when I was a male GP.

“Every single one of them refused my offer of a chaperone even when they knew that I am transgender. “

In a feature in Malysian Medics International Kamruddin says “I had a fear that my patients would treat me differently as they might not agree with my new identity due to prejudice and ignorance. … Surprisingly, my patients were adorable; some thought I was a new female locum GP, few male patients were flirting with me, and almost all were happy for me when they got to know I was the same person”.

Again this raises questions:

• Is it appropriate for a medical practice to see the role of staff and patients as being to validate a doctor’s gender identity with complements, unquestioning acceptance and a letting down of personal sexual and religious boundaries?
• Were these patients really empowered to say ‘no’ if they did not wish to be seen by intimately examined by the doctor — if this view is seen as hostile, prejudiced and ignorant ?
• Were these patients really empowered to say they wanted to have chaperone, when the person offering the choice sees it as highly personal to the healthcare worker, and celebrates if the patient decline a chaperone, as a sign of positive affirmation?
• Did the surgery consider the fact that “every single one”, amongst a population described as conservative muslim women turned down the offer of a chaperone for intimate examinations as a sign that the measures they have in place free and informed consent might not have been effective? Was this monitored?

In none of the laudatory articles can I find anyone questioning what systems and policies Dr Kamruddin and partners at East One put in place to ensure that patients’ interests are respected.

Ultimately these are not questions about just this one particular GP’s practice, but about the policies and professional guidance across the healthcare system. Deference, fear or confusion should never be mistaken for consent.

In 2017 the NHS apologised to a woman for sending a transexual nurse who was obviously male to undertake a smear test. In 2020 would the BMA, the GMC and the Royal College of GPs argue that such a woman should be viewed as hostile, prejudiced and ignorant ?

Should the woman be encouraged, pressured or forced to submit?

If not, what policies do healthcare providers have to prevent this happening?

The Care Quality Commission did not see any risk here

The Care Quality Commission inspects GP’s surgeries to check they are safe, effective, caring, responsive to people’s needs, and well led. What does the case of Dr Kamaruddin show about how they consider these questions when health care professional wants to be treated as the opposite sex?

CQC assessments, are detailed, getting down to the level of looking at how mops are stored. Sometimes they are criticised for box-ticking paperwork. Nonetheless you would think that the questions I have asked above might have been be raised by inspectors concerned with risk in order to sign off on statements such as this:

People who use the service were protected from the risk of abuse, because the provider had taken reasonable steps to identify the possibility of abuse and prevent abuse from happening

CQC

If you can’t envisage the possibility of a risk (or you can but you are not allowed to speak about it) then you cannot begin to talk about what reasonable steps could be taken.

In their 2014 report on the East One practice (when Kamruddin was still listed as male) the CQC gives an amber “improvements needed” rating, highlighting that staff do not always treat people with consideration and respect, and that records of DBS checks were lacking. The report also notes that they had heard “sometimes it is very difficult to make an appointment with a female doctor.” The inspectors note that the practice “had a chaperone service available for people wishing to have someone of the same gender present during examinations” and that this is important for respecting patients dignity.

The next inspection was in 2016 (after Kamil became Kamilla ) the CQC did not see any need to ask any particular questions on how this transition was managed in relation to patient consent and dignity. Nor do they clarify the distinction between sex and gender identity.

The inspectors finds that there are still improvements needed, in particular on the role and training of chaperones. The report notes that there are notices advising patients that chaperones are available, but does not comment on uptake (data which should be recorded). The report gives no sign that the inspectors wondered whether female patients (including conservative religious women, with english as a second language) are really acting with free and informed consent in turning down a chaperone for an intimate examination by a doctor they have known for 15 years as a man, or wonder whether they were under emotional pressure to do so.

Nor does it mention in the section under leadership (which also required improvement) whether the potential for consent and safeguarding risks raised from having a male doctor being treated as if they were female had been considered as part of the clinics risk management.

In their 2017 report the inspectors say blandly “Staff we spoke with on the day of the inspection were aware of their responsibilities when chaperoning.” and “Patients could be treated by a clinician of the same gender”. Again they do not ask the question about how female patients feel about being told Dr Kamaruddin is the same “gender” as them (and that sex is irrelevant).

The word “sex” does not appear once in any of these three CQC reports.

The Care Quality Commission does not see sex

Does the CQC, the agency with responsiblity for assessing the adequacy of safeguarding in healthcare really not see sex as a relevant factor in safeguarding and for treating patients with kindness, dignity and respect?

It seems not.

Their equality statement on their website ignores the Equality Act protected characteristic of sex (and replaces “gender reassignment” with gender identity or expression).

The East One practice also fails to mention sex in its equal opportunity policy.

Of course like so many other public bodies the CQC is a member of the Stonewall Champions scheme. Its management at the highest level has set an objective to gain a higher placement on Stonewall Index (the equality strategy mentions Stonewall three times. The words female and sex do not appear once).

The regulator, whose job includes protecting the dignity and agency of female patients to be seen by a female doctor when they ask for one, has made itself answerable to Stonewall; a charity that views women’s boundaries as bigotry.

Across the healthcare service doctors, managers and inspectors are being told to mentally replace sex with “gender identity” at all times. This creates a loophole in their ability to identify inappropriate behaviour and abuse of power which relate to sex.

Lessons learned?

When the the reports detailing how Jimmy Savile had been enabled to abuse patients in the NHS’s care came out in 2014 the government, regulators and healthcare provers all promised to learn the painfully obvious lessons.

The reports showed again and again how things had been allowed to happen which should have been seen as obviously inappropriate, when safeguarding loopholes met the desires of an unusually flamboyant character.

Inexplicably, Savile was allowed to watch female patients as they stripped naked for bathing.

Jeremy Hunt, then Secretary of State for Health

In 2015 Kate Lampard wrote an independent report commissioned by the government, drawing together lessons learnt from the 44 NHS trusts. The Lampard report highlighted the unusualness of Savile but also the everyday vulnerability of bureaucracies:

Much of the story of Savile and his associations with NHS hospitals is unusual to the point of being scarcely credible. It concerns a famous, flamboyantly eccentric, narcissistic and manipulative television personality using his celebrity profile and his much-publicised volunteering and fundraising roles to gain access, influence and power in certain hospitals.

Savile’s celebrity and his roles as a volunteer and fundraiser also gave him power and influence within NHS hospitals which meant that his behaviour, which was often evidently inappropriate, was not challenged as it should have been. Savile’s ability to continue to pursue his activities without effective challenge was aided by fragmented hospital management arrangements; social attitudes of the times, including reticence in reporting and accepting reports of sexual harassment and abuse, and greater deference than today towards those in positions of influence and power; and less bold and intrusive media reporting.

Kate Lampard

While the ink was barely drying on the Lampard report government, regulators, healthcare providers and the media have been busy adopting guidelines and language which replicate this pattern of deference and reticence to speak up when evidently inappropriate things are happening.