The Care Quality Commission (CQC) is the independent regulator of health and social care in England, established in 2009. It is their job to ‘make sure health and social care services provide people with safe, effective, compassionate, high-quality care and… encourage care services to improve.’. The CQC operates inspections of all health and social care providers through its ‘5 Core Questions’-
‘are they safe?
responsive to people’s needs?
In order for these questions to be answered with ‘yes’, the CQC has a number of ‘fundamental standards’ set out as a series of regulations which all providers are to adhere to. With regards to same-sex care provisions, there are a handful of regulations which should, when understood correctly by service providers, protect an individual’s rights. These are namely:
Regulation 9: Person-centred care
Regulation 10: Dignity and respect
Regulation 11: Need for consent
Regulation 13: Safeguarding service users from abuse and improper treatment
Regulation 18: Staffing
Regulation 19: Fit and proper persons employed
Regulation 20: Duty of candour
Regulation 9: Person-centred care, is intended to ensure that all individuals using health and social care services are provided with care and/or treatment which is specifically tailored to them. Within the guidance the following is stated:
Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be.
It is to be acknowledged that sometimes a person’s individual preferences are at odds with their actual physical care needs- this is explored within the guidance. However, access to female only care should be seen as both a personal preference and a physical care necessity for women and girls.
Regulation 10: Dignity & Respect explicitly recognises the right to request ‘staff of a specified gender/sex’ and ‘every reasonable effort’ must be made to fulfill this. This regulation is based on Health and Social Care Act 2008 and the Equality Act 2010. It is important to note that while ‘sex’ is a protected characteristic in the Equalities Act 2010, ‘gender’ is not (there is the protected characteristic of ‘gender reassignment’ but not ‘gender’).
Interestingly, many care providers conveniently drop the word ‘sex’ from the guidance on their website and their own policies- allowing for them to rely on the ambiguous term ‘gender’- a word with no stable definition. The word ‘gender’ allows individuals to claim an innate gender identity which is at odds with their biological sex. By ignoring the word ‘sex’ and focusing instead on ‘gender’, care providers are stripping vulnerable women and girls of their imperative sex based rights. Rights to safe and effective care. Rights to same sex intimate care provisions. This is a cruel and unusual punishment for women and girls who have done nothing wrong. It's a profound abuse of society’s most vulnerable, and it is contravening the CQC guidance for this fundamental regulation.
One way in which care providers might try to shirk their responsibility to women requesting same-sex care is to state that this request is ‘unreasonable.’ Remember, within the Regulation 10 CQC guidance are the words ‘every reasonable effort.’ This is careful wording to account for the fact that there may be a very limited number of NHS specialist consultants for example and the possibility that there simply isn’t a female doctor available in that highly skilled field. However, in a domiciliary setting where a woman may require intimate care, there should be no such shortage of women amongst what is referred to as an ‘unskilled’ workforce. Current statistics indicate that women make up 82% of the domiciliary care workforce. It should therefore not be unreasonable to insist on female only care.
Regulation 11: Need for Consent, is a really key regulation when advocating for your own, or a loved one’s rights to female only care. This is because failure to comply with this standard can result in prosecution. For example, if a male is sent with the intent to perform intimate care duties on a woman despite her expressed wishes for female only care- should he touch her without her consent, he will have committed sexual assault. This is of course a criminal matter of which care providers should be reminded!
Regulation 13: Safeguarding service users from abuse and improper treatment. Within this regulation the following is stated:
Care or treatment for service users must not be provided in a way that…is degrading for the service user, or significantly disregards the needs of the service user for care or treatment.
Clearly, if a woman has requested same-sex care, anything other than this is degrading for her and significantly disregards her care needs. Furthermore, if she has not consented to a male performing her care, specifically intimate care, for him to carry out such care would infact be abuse- an offence under the Sexual Offences Act 2003.
If you find that you or a loved one is being denied same-sex care provisions, make sure you confront care providers in writing to ask them why this is. Often staff shortages are cited as the reason and women are left faced with the very real possibility that care will be rescinded altogether as the provider may state that they cannot cater to their request for female only care. Faced with this many women are afraid to assert their rights and try to enlist family support on the days a male carer may be sent to them or forgo care altogether in the event a male is sent. Accepting this fate is not consent. Regulation 11 guidance states that ‘consent procedures must make sure that people are not pressured into giving consent’. Staffing shortages are not the fault of the woman requiring care and subjecting her to a male carer despite her requests for same-sex care is certainly improper treatment.
Regulation 18: Staffing. Within the guidance provided for this regulation, the following is stated:
Providers should have a systematic approach to determine the number of staff and range of skills required in order to meet the needs of people using the service and keep them safe at all times.
It is the responsibility of care providers to recruit appropriately so that they can cater to the needs of their clients. They should not be chronically understaffed!
Regulation 19: Fit and proper persons employed. The intention of this regulation is to ensure that providers only employ 'fit and proper' persons who are able to provide appropriate care and treatment. Therefore for women to be denied same-sex care on the basis that a care provider lacks a sufficient number of female caregivers shows a failure to comply with Regulation 19. Providers should understand the needs and preferences of their clients and recruit the appropriate personnel. If this means that they need to drive recruitment towards obtaining and retaining more women in an already female dominated workforce, then that is what care providers ought to be doing. Instead we often find care companies gearing recruitment towards ‘increased diversity’, which inevitably means more males!
Regulation 20: Duty of Candour. This is a newer regulation that was written after the Mid-Staffordshire scandal, and is about the requirement for honesty when dealing with complaints. It means for example that if a female member of staff is requested but a male is provided, the integrity of the response is under scrutiny. “Lucy is a woman” directly fails to meet this standard, and puts them in a very difficult position.
In addition there is the Mental Capacity Act 2005. Healthcare professionals and carers make best interest decisions on behalf of people who lack capacity with best available evidence involving if possible those who know the patient, and the patient’s wishes insofar as they were/are known, and the least restrictive option chosen. If a care provider is not led by these principles but rather by efficiency (for instance providing a man rather than a woman), the consequence could be very serious for them. If a patient who lacks capacity is harmed by a male carer, the provider could be liable to be charged under section 44 which is the new criminal offence of Wilful Neglect, with possible jail sentence of up to 5 years and a fine. Section 44 was also created in response to the Mid-Staffordshire scandal.