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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.
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Turning the tables makes for an interesting theoretical discussion. I have rarely come across women refusing male doctors, although I have worked for years in a hospital that treats many migrants of Islamic faith. Occasionally, women have asked for female doctors in the setting of an intimate examination – more due to anxiety or modesty than religion.
On the other hand, I have (also rarely) witnessed overt racism and sexism from patients towards staff, rejecting doctors of non-Anglo appearance and even those who looked “too young”. There is a fine line between catering to legitimate needs and overt discrimination, both ways.
Surely the solution, though, is common sense. If a woman in a non-emergency situation requests a female doctor, couldn’t she be offered a clinic or an appoitment when one is available? One need not necessarily cater to demands immediately, but it is also rational to provide the choice when it can reasonably be accommodated, and without resentment.
There are muslim theocratic states where a woman could not access health care without her husband’s permission, or where a gay doctor would be executed. Australia is not (yet) such a country.
So, Dr Bismark, with your governance and regulation hat on, if you personally wish to respect the rights of Muslim patients, what do you say to the gay male doctor to make him feel “safe and respected”, when neither male nor female patients want his sinful hands touching them? Reassure him that he is a valued member of the team while getting nice clean gender-appropriate heterosexuals to do part of his workload? Suggest a career path in psychiatry rather than General Practice, O&G, Urology, Sexual Health etc?
Or perhaps a blanket “Due to the high percentage of Muslim patients, the administration of (Auburn, Bankstown etc) Hospital has resolved not to employ LGBTI staff. A policy of ‘don’t ask, don’t tell’ will be implemented for rotating or casual agency staff, but any gay Urology registrar or lesbian midwife who wears a rainbow badge will be dismissed.” That would make both Sheik El Hilali and Cardinal Pell happy.
Marie, many thanks for this article.
I’m curious about your thoughts on the issue when the tables are turned. Instead of a patient objecting to receiving care on the basis of gender, consider a doctor objecting to delivering care on the basis of gender.
Relating to the issue Ms Ziarata Zia faced, a paper published in J Med Ethics in 2011 found that one-third of Muslim medical student reported an objection to intimately examining a person of the opposite sex. Of all of the Muslim medical students, three-quarters reported that they believed doctors should be entitled to object to any procedure for which they have a moral, cultural or religious disagreement (doi:10.1136/jme.2011.042770).
This is a form of consientious objection by the doctor. Should this be respected just as a patient’s wishes in this situation should be respected? I suspect most people would find such conduct by their doctor discriminatory.
We should always do our best to make our patients feel safe and protected. But with increasing societal pluralism, to what extent should conscientous objection be heeded? And to what extent should we tolerate conscientous objection by our medical students and doctors? The answers to these questions have implications for distributive justice in health care.
In the 1970s, I worked with a male student nurse, who was to become the first male to graduate from his Sydney teaching hospital. He was incensed that senior nursing staff were reluctant for him to care for female patients, unlike his wife who also worked at the hospital. To implement Dr Bismark’s policy would involve discrimination against male hospital staff in routine ward allocations, and raise difficult issues for after hours rostering. If a hospital has only 2 or 3 registrars, does it always have to have a female on call? There are many situations like mild abdominal pain which are not ’emergencies’, but present out of hours. Will the female staff consider it discrimination if they have a larger clinic and on-call workload than the males, or will the males get less clinical experience?
If it is a sin to be touched by a male, that would apply to every wound dressing clinic, physiotherapy appointment etc, not simply antenatal clinics. And presumably Ms Zia would want a female urologist – how would a female get trained in urology if men like Mr Zia refuse a female doctor? Why not a simple statement: “This hospital has a non-discriminatory employment policy. The staff members who care for you may include male/female/transgender/intersex, and hetero/homo/bisexual orientation, of diverse ethnic origins. All are professionals in their field, fully accredited by AHPRA. We have zero tolerance for discrimination, and request that you respect our staff by not discriminating against them.” A male doctor can do a vaginal exam, and a female doctor a prostate exam, and a male or female nurse can do catheter care and help dress you.
A few years ago, a colleague of mine was an examiner in a final undergraduate clinical examination in which the cardiovascular system, including the peripheral pulses, was to be examined by the candidates on a volunteer – a young male medical student. One of the candidates, a woman wearing Muslim clothing, refused to examine the femoral pulses because of her religious beliefs. The following year, the examination marking scheme was changed for all students, so that they only had to verbally state that they would examine the femoral pulses, not actually perform the examination. So if patients can object on grounds of sexual or gender discrimination, so too can medical students and presumably doctors. My question is what would be this doctor’s (yes, she passed the exam despite failing the cardiac station) medico-legal responsibility if she refused to carry out an appropriate examination of a male patient bleeding from a groin injury, or missed an absent femoral pulse because she had not learnt the correct examination technique – especially if she was the only doctor on duty after hours.
I think that we would all love to be able to offer exclusive treatment for public patients. However the system is at breaking point and to suggest men or women should demand anything other than the best care is to create an unsustainable expectation, of course we should do our best to understand everyone’s cultural or religious sensibilities. We are not always able to meet individual requirements, ie: if there is no female Doctor available. how would it look if a men came to a clinic and said I only want a male doctor to treat me as I believe females are not as competent as men, it’s my belief so I should get what I want.
Let us strive to do our best, but if our best is being treated by a man then be thankful that a Doctor is available. Discrimination is a two way street.