Today’s correspondent has:
… a question about an issue that has been discussed recently on Twitter in response to a transgender paramedic employed in the UK; https://twitter.com/SECAmbulance/status/1533780743821742080
While many of the responses are horribly transphobic, I was surprised by the number of times it was asserted that patients have a “right” to choose if they are treated by a male or female paramedic. I have read similar discussions that have centred in hospitals where patients requested doctors or nurses that are a particular gender or ethnicity, but not in the out of hospital environment. My question: does a patient have a “right” to insist on receiving treatment from a particular paramedic for a particular reason (such as gender or ethnicity) and is that request supported by any legislation in Australia?
The short answer is ‘no, a patient does not have a “right” to insist on receiving treatment from a particular paramedic for a particular reason (such as gender or ethnicity)…’ but we can look at that with some more subtlety.
First one might think that the anti-discrimination legislation has something to say here but it’s not really relevant. I’ll focus on the Commonwealth Act (the Sex Discrimination Act 1984 (Cth). In reality it will be state/territory legislation that is more likely to be relevant but I’ll sue the Commonwealth Act as I don’t know my correspondent’s jurisdiction and the principles will all be sufficiently similar.
The gist of anti-discrimination legislation is that a relevant body (and certainly a jurisdictional ambulance services will be a relevant body) cannot discriminate in employment nor in deciding what services to offer, on the basis of ‘sex’ (Sex Discrimination Act 1984 (Cth) ss 14 ‘Discrimination in Employment’ and 22 ‘Goods, services and facilities’.) I have put ‘sex’ in inverted commas as it is not just sex discrimination that is prohibited (ie discrimination on the grounds of whether a person is male or female). Also prohibited is discrimination on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding and family responsibilities (ss 5A to 7A).
What that means is that where an ambulance service employs a paramedic who is male, female, transgender, intersex – any of the LGBQTI+ letters – they cannot treat them differently in their workplace because of that identity. Equally they cannot refuse to provide treatment and care to any patient regardless of their ‘sex’ (again using inverted commas to cover all the grounds listed in the Act).
The patient is however, not bound by the Act. They are not providing goods or services or employment etc. That does not mean they can insist on any particular paramedic, but they can refuse treatment – and a refusal of treatment can be for any reason at all. If a patient does not want to be treated by a man, or woman, including a trans man or woman, they can (if competent) refuse treatment. That does not mean they can demand treatment (see Patient’s demands do not create a duty to treat (April 11, 2020)) but they can refuse.
But even that is not the end of it – see Treating those that don’t want to be treated (June 3, 2013) and Ambulance transport against patient’s will (August 16, 2017). A professional paramedic has certain obligations to their patient. These include
Principle 1 – Practitioners should practise safely, effectively and in partnership with patients and colleagues, using patient-centred approaches, and informed by the best available evidence to achieve the best possible patient outcomes.
Principle 3 – Respectful, culturally safe practice requires practitioners to have knowledge of how their own culture, values, attitudes, assumptions and beliefs influence their interactions with people and families, the community and colleagues…
Details for principle 3 include:
(a) understand that only the patient and/or their family can determine whether or not care is culturally safe and respectful
(b) respect diverse cultures, beliefs, gender identities, sexualities and experiences of people, including among your team members
It follows that if a patient does not want to be treated by a man or woman (or a transgender person, or a homosexual practitioner etc) it may be appropriate to try and find out why and try to respect those wishes if it can be done. Whether it can be done depends on the nature of the patient’s condition and the resources available. Most people would probably not think it objectionable if, for example, a woman who needs to be transported from a crime scene to a sexual assault clinic because she had just been raped by a man, asked to be treated by female paramedics. And the coordinator may be able to allocate an ambulance crewed by women to the task. But if there is no female crew the patient could not insist that the service recall some women to duty to met that demand.
Where a patient refuses treatment because of the paramedic’s sexual identity that is more objectionable, but if we are going to recognise and ‘respect diverse cultures [and] beliefs’ that has to include one’s that are a surprise or offensive to our own. It follows that if a man wants to be treated by a male, or a woman by a woman, then where it is possible to accommodate that without undue cost, inconvenience or risk, then it is appropriate to make those arrangements. It may beg the question of whether ‘transphobia’ or ‘misogyny’ are relevant cultural beliefs or attitudes but that is not a debate I’m going to try and enter and there is significant research by other academics in these areas.
A patient cannot insist on particular treatment nor can they insist on being treated by a particular paramedic or a paramedic of a particular sex (or race, or age etc). They can refuse treatment if they don’t want to be treated by the particular paramedic on scene. But a paramedic practising within the concepts of the Paramedicine Board’s Code of Conduct has to consider the request and, particularly if refusal would have serious consequences and if their request can be accommodated, consider finding ways to meet their request; even where it seems silly or offensive. Patient centred care means only the patient ‘can determine whether or not care is culturally safe and respectful’.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.