Lesbian, gay, bisexual and transgender patients or clients

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Lesbian, gay, bisexual and transgender patients or clients Guidance for nursing staff on next-of-kin issues

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Lesbian, gay, bisexual and transgender patients or clients Guidance for nursing staff on next-of-kin issues ✦ be reluctant to adhere to effective follow-up or continuity of care.

The Royal College of Nursing celebrates diversity, and is committed to developing and promoting good practice and equal care to all clients. The RCN has actively championed, and welcomes, the numerous positive changes in UK law in favour of equality for lesbian, gay, bisexual and transgender (LGBT) people, and continues in its efforts to challenge all forms of stigma, prejudice and discrimination in health care.

A specific concern relates to the issue of same-sex and transgender person’s next-ofkin status. Work undertaken by the RCN, in which lesbians and gay men have been interviewed about their experience of nursing care, show that some nurses refuse to acknowledge the status of a same-sex partner, denying visiting rights and access to information. There is often no legal basis for these actions and they may also be unprofessional.

The RCN also recognises that stigma, prejudice and discrimination exist towards lesbian, gay, bisexual and transgender (LGBT) people. These discriminations are usually called ‘homophobia’,‘biphobia’ and ‘transphobia’. Heterosexism can also be a problem; this is the automatic assumption that everyone is heterosexual (unless ‘proved’ otherwise), and that heterosexuality is inherently superior to, and preferable to, other sexualities. Protocols and working practices often neglect the specific needs of non-heterosexual people1, for example, not treating same-sex relationships with equal regard to heterosexual non-married or married partners. The combination of homophobia and heterosexism leads many gay, lesbian and bisexual people to:

Over recent years, the situation has become much clearer for some transgender, lesbian and gay people in relation to the legal status of gender recognition and partnership registration (Gender Recognition Act 2004 and Civil Partnership Act 2004). This is supported by moves to outlaw discrimination on grounds of sexuality in the Equality Bill (2003), to protect transgender people from discrimination under amendments to the Sex Discrimination Act (1975) and, where applicable, proscribe discrimination against persons affected by HIV, and/or AIDS, under the Disability Discrimination Act (2005).

✦ present late in disease

The civil partnership registration for samesex couples, as far as health care is concerned, gives civil partners the same

✦ experience poor levels of care whilst in treatment

1 McFarlane, L (1998) Diagnosis: Homophobic. The experiences of lesbians, gay men and bisexuals in mental health services, London: PACE (Project for Advocacy, Counselling and Advice)

2

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approach in nursing practice should be to respect the patient’s/client’s wishes in recognising whom they choose as a nominated person; this may include a partner or friend not registered in law.

However, for legal matters, such as consent to treatment for a person unable to freely give it for her or himself, refer to latest judicial rulings and/or legislation, and remember: same-sex civil partners have equal standing to married partners of heterosexual people, and for all persons with partners such as cohabiting couples, no discrimination should be made on grounds of sexual orientation or gender classification. The underlying rule must be, always act in the patient’s best interest.

rights and responsibilities as married people. This will have implications, not least, for all documentation where ‘marital status’ is required. The new category of ‘civil partner’ now has equal legal recognition to ‘married’. Likewise, transgender people who have their acquired gender recognised by law are entitled to change their birth certificates and to marry in their acquired gender. These laws are legal realities in the UK, and are not dependant on whether individual carers approve of them or not.

What is the legal position?

The term ‘next-of-kin’ has a limited meaning which is related to the disposal of property to blood relations in situations where someone dies without having made a will. The Mental Health Act (1983) and the Children Act (1989) refer instead to ‘nearest relative’ and those with ‘parental responsibility’ or ‘guardianship’.

Children with lesbian, gay or transgender parents Many gay, lesbian, bisexual and transgender people are also parents. Sadly, they and/or their children may suffer at the hands of society’s prejudices; positive health care support can be a great consolation.

More recent changes are contained in the Draft Mental Health Bill (2004), which, instead of referring to ‘nearest relative’ uses the concept of ‘nominated person’ (found in Part 8, on Patient Representation). This applies particularly in cases where a person is single, as opposed to someone with a legal spouse or registered partner.

Some LGBT people may have had their children in the context of a heterosexual relationship, and, if they were married at the time of the birth, the biological father will automatically have parental responsibility.

The biological mother has parental responsibility whether she is married or not.

Although the term next-of-kin is frequently used in health care, including on documentation, many health care professionals will only discuss a patient’s issues with ‘next of kin’, the concept is – unofficially – presumed to mean a blood relative or (heterosexual) spouse.

Many lesbians and gay men also have children outside the context of heterosexual relationships and marriage. The partner of a lesbian mother may have parental responsibility if they live together and she has applied through the court for a ‘residence order’ under the Children Act 1989. This would normally include

For day-to-day care of clients without a registered partner or spouse, the ethical 3

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ROYAL COLLEGE OF N URSI NG

or ‘significant others’, nurses need to tell patients the reason for the request and how the details will be recorded. They also need to ascertain from patients who they wish information to be given to and who they might wish it to be withheld from. This applies to medical information given to visitors, and information given to anyone on the telephone.

The situation is more complex if the patient is unable to state their views – because, for example, they are unconscious – and there is conflict with other relatives. Nursing staff should not make judgements themselves. If there is a disagreement between relatives and a friend or partner of the patient, a compromise should be sought.

Guidelines should be devised to deal with this kind of situation, remembering that even if the patient is conscious, such conflict may develop.

The British Medical Association and the Association of British Insurers2 have issued guidelines which make asking and recording a person’s sexual orientation relatively redundant. They state: In order to prevent people from being deterred from seeking advice and getting tested for HIV and other sexually transmitted infections (STIs), […] doctors do not have to reveal all aspects of their patients’ history [… nor] disclose single incidents of STIs, or even multiple episodes, provided there are no long term health implications.

In addition, insurance companies should not ask whether an applicant for insurance has taken an HIV or Hepatitis B or C test, had counselling in connection with such a test, or received a negative result.

granting authority to the non-biological parent to make health decisions and consent to treatment on behalf of the child.

Gay men and lesbian women can also foster and adopt children, and like non-married heterosexual couples, can also do so as a family unit, a couple, as opposed to the former practice of only allowing it for a single person (Note that these changes in the law refer to England & Wales and Northern Ireland; Scotland is currently under review. For information on all, see the Stonewall website under References).

A gay man who has fathered a child could also apply for a residence order if he lives with the child, or he could be granted parental responsibility by the birth mother, in the same way as a heterosexual woman grants such rights to the father of the child, if she is not married to him.

A court order, like a residence order, clarifies whether an individual has parental responsibility and gives nurses clear authority to recognise such relationships. However, in practice, many lesbian and gay parents may not have sought such a court order.

Any person who is involved with a child would expect to be included in their care if the child was in hospital or being nursed in the community. It is in the child’s interest that such relationships continue uninterrupted.

Confidentiality, access, information and documentation When eliciting information about partners

2 See the General Practitioner’s Report (GPR) – BMA and Association of British Insurers at www.bma.org.uk and related material at www.abi.org.uk

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L E S B I A N , G A Y , B I S E X U A L A N D T R A N S G E N D E R P A T I ERNOTYSA LA N CO D L CL LE IGEEN TOSF N U R S I N G

Nurses also need to recognise that some LGBT people will not feel comfortable using various sexuality terms to label or define themselves to others and some will have concerns about such information being documented. Nurses should never make a record of a patient’s sexual orientation without their prior permission. This should include discussing what the information will be used for and who will have access to it.

can find out about these services by contacting their local gay and lesbian switchboard.

Conclusion Nurses need to: ✦ be sensitive about the way they request information from patients, using language which is neither offensive or embarrassing

Dealing with death

✦ ask for a contact person to whom information should be given, rather than using the term ‘next-of-kin’. They should also find out the names of those people the patient wishes or does not wish to have contact with

Provisions within The Human Tissue Act of 1961 allow a non-relative to receive a body, arrange a funeral and give permission for a post-mortem to be carried out.

According to the Act, if a person dies in hospital, the hospital authority has lawful possession of the body and the hospital administrator has legal authority to direct that organ or tissue transplantation takes place. This is provided that reasonable inquiries have been made which show that neither the deceased person nor his or her surviving relatives would object. It is possible that a same-sex partner or partner of a transsexual person could authorise transplantation and that the hospital administrator would also take the views of blood relations. Obviously, if the same-sex partner is a registered civil partner, or a spouse of a transsexual person, then they would have the same legal rights and obligations as a heterosexual married person.

✦ challenge heterosexist, homophobic, biphobic and transphobic attitudes and behaviour in nursing colleagues, other health care or clerical staff, other patients and service users ✦ make it safe for lesbian, gay, bisexual and transgender patients, and LGBT parents of children to be open about their relationships, so that families can be supported during times of illness or crisis. This includes respect for privacy and confidentiality ✦ and remember! There are many new laws that have been enacted since 1997 that promote and achieve sexuality equality and outlaw discrimination.

Nursing practice should reflect this by treating clients and their significant others with dignity and respect, irrespective of their gender or sexual orientation.

Nurses should recognise that when a samesex partner has been bereaved they may not receive the same support and recognition as a heterosexual partner, but specialist counselling services are available. Nurses 5

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References British Medical Association and Association of British Insurers Guidance from the Ethics Department (2003) General Practitioner’s Report, London: BMA. Cited at: www.bma.org.uk and www.abi.org.uk Department of Health (2004) Draft Mental Health Bill, London: The Stationary Office House of Lords (2003) Equality Bill, London: The Stationary Office McFarlane L (1998) Diagnosis: Homophobic. The experiences of lesbians, gay men and bisexuals in mental health services, London: PACE (Project for Advocacy, Counselling and Advice).

Parliament (1961) Human Tissue Act, London: HMSO. Parliament (1975) Sex Discrimination Act, London: HMSO. Parliament (1983) Mental Health Act, London: HMSO. Parliament (1989) Children Act, London: HMSO. Parliament (2004a) Civil Partnership Act, London: HMSO. Parliament (2004b) Gender Recognition Act, London: HMSO. Parliament (2005) Disability Discrimination Act, London: HMSO. Royal College of Nursing (2001) Sexual health strategy. Guidance for nursing staff, London: RCN. Publication code 001 524.

April 2003 Published by the Royal College of Nursing 20 Cavendish Square London W1G 0RN 020 7409 3333 The RCN represents nurses and nursing, promotes excellence in practice and shapes health policies.

Useful websites The Gender Trust www.gendertrust.org.uk Mind – for better mental health www.mind.org.uk Project for Advocacy, Counselling and Education (PACE) – promoting lesbian and gay health www.pacehealth.org.uk RCN Sexual health skills distance learning course www.rcn.org.uk/sexualhealthlearning Stonewall – equality & justice for lesbians, gay men and bisexuals www.stonewall.org.uk

Publication code 002 017