Many thanks to Dr Marie Bismark and the MJA for allowing us to republish this article, which was first published in MJA InSight on 25 May 2015.
Dr Marie Bismark writes:
DURING her pregnancy, Ms Ziarata Zia, a Sunni Hanafi Muslim, attended an antenatal appointment at Monash Health and asked to be examined by a female doctor.
She explained that her religious beliefs made it a sin to be touched by a male other than her husband or family members, unless she required emergency care.
Ms Zia was informed of Monash’s written policy that “we are not able to provide only female carers. If having female only care is important to you we suggest that other options of care be considered”. A significant conflict arose, and Ms Zia felt forced to choose between receiving health care and her religious beliefs.
Ms Zia lodged a complaint of discrimination, which eventually led to Monash requesting a review of its policies and procedures by the Victorian Equal Opportunity and Human Rights Commission. The review found that a blanket refusal to provide same-gender care was likely to lead to unlawful discrimination, and represented an unreasonable limitation of human rights.
As a result of the review, Monash Health has said that it will make the choices available to patients more visible, and will give priority to requests for a female doctor because of religious or cultural beliefs or past trauma.
The Commission’s findings are a timely reminder for all health providers in Australia to review their policies and practices regarding same-gender care.
From a clinical perspective, meeting the needs of patients from diverse backgrounds is simply good patient-centred care. Patients who feel uncomfortable or unsupported in making requests for same-gender care may avoid or delay accessing certain health services. Conversely, access to safe and appropriate care supports wellbeing, and may help reduce health disparities.
From a legal perspective, equal opportunity legislation prohibits discrimination against patients based on legally protected attributes such as religion or sex. Public authorities must also act in a way that is compatible with human rights, including cultural rights.
Discrimination can be direct, where different rules explicitly apply to different people (eg, “this clinic will not provide care to Jewish women”). More commonly, discrimination is indirect — the rules are the same for everyone, but have the effect of disadvantaging certain individuals because of needs arising from protected attributes (eg, “this clinic cannot provide same-gender care”).
Importantly, unintentional discrimination can still be unlawful.
The law recognises that it is not always possible to avoid potentially discriminatory actions. Indeed, the Commission’s review identified several situations where requiring same-gender care may not be reasonable, such as in medical emergencies, unplanned attendances for urgent or after-hours care, highly specialist services, small community clinics and a doctor not being available.
Ultimately, the positions of both health care providers and patients must be considered and weighed. In most cases, it will be possible to honour requests for same-gender care without substantial logistical, clinical or financial burdens.
Patients seek same-gender care for a variety of reasons. In Australia, most requests for same-gender care are on the grounds of religion or cultural beliefs. People who have experienced sexual violence may also request same-gender care. In these situations, the request relates to a “protected attribute” under equal opportunity law, and blanket refusal could be a form of indirect discrimination.
For others, same-gender care is simply a personal preference. In these situations, health services are allowed, but not required, to try to accommodate the request.
Failure to accommodate reasonable requests for same-gender care may result in a complaint of discrimination and/or civil tribunal proceedings. Liability can fall on individual practitioners and employers unless they have taken all reasonable steps to eliminate discrimination as far as possible.
For individual health practitioners, an important first step is creating an environment of trust, where patients can comfortably disclose needs that arise from their culture, religion, or history of trauma. Such information should be recorded to support continuity of care.
Once a patient’s needs are understood, the practitioner can discuss ways to accommodate them, such as booking ahead with a female provider. Where same-gender care is not practicable, the practitioner should explain why and provide options that may help the patient feel safe and respected, such as providing a female chaperone, protecting privacy, or referral to another service. Patients should be given sufficient time to consider and understand information and options.
For a health service, reasonable precautions may include workplace training on equal opportunity obligations, role-modelling of appropriate behaviour by senior staff, a detailed policy on same-gender care, accessible and effective complaints processes, and prompt action if organisational policies or codes of conduct are breached.
For organisations looking to review their policies in this area, the Commission has suggested wording for Monash Health that may be worth considering. It is available on my blog.
Such policy changes are best viewed as just one device among the many required to dismantle institutional racism and sexism within health services.
The end result may be improved trust in health services, and a positive step towards respecting human rights and reducing disparities in health outcomes.
Dr Marie Bismark is a public health physician and health lawyer at the School of Population and Global Health, University of Melbourne. Her research focuses on the role of clinical governance, regulation and patient complaints in improving the quality and safety of health care.
