Balancing rights: Responding to discriminatory requests in healthcare

Cases reported in the New Zealand media last year have highlighted the tensions that can arise when patients make requests about who provides their care. 

At North Shore Hospital, staff faced fallout after a patient requested not to be treated by Asian health workers.¹ At Waitākere Hospital, a patient’s racially abusive behaviour led to staff refusing to continue care until the situation could be managed safely.²

These incidents have prompted important conversations about how health providers can respect patient preferences while also protecting staff and upholding legal and ethical obligations under the Code of Health and Disability Services Consumers’ Rights (the Code). 

Right 7(8): Preferences – ‘Where practicable’ 

Right 7(8) states: 
‘Every consumer has the right to express a preference as to who will provide services and have that preference met where practicable.’ 

This recognises that consumers can express personal, cultural or clinical preferences. For example, a patient may prefer a clinician of the same gender for an intimate examination. However, the phrase ‘where practicable’ is critical. It means that not all requests can or should be met, particularly where they would breach the rights of others or conflict with other laws. 

Clause 5: Balancing legal duties 

Clause 5 of the Code clarifies that: 
‘Nothing in this Code requires a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment.’ 

This means that a provider is not required to comply with a request that would place them in breach of obligations under the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993, the Employment Relations Act 2000, or the Health and Safety at Work Act 2015. 

Right 7(8) does not, and was never intended to, require a health provider to agree to a request that would breach these laws. However, there will be occasions where competing rights must be carefully assessed and balanced. 

When gender-based requests are appropriate 

Not all requests about who provides care are discriminatory. Gender-specific preferences for intimate examinations or personal care are recognised as legitimate under Right 7(8) and can be accommodated where practicable. Such requests may relate to privacy, cultural norms, religious beliefs or previous trauma and should be considered on a case-by-case basis.

Similarly, trauma-informed care may justify certain requests, such as a survivor of sexual assault preferring care from female clinicians. This differs from excusing racism or exclusionary behaviour on the grounds of psychological pathology; a mental health condition does not justify discriminatory behaviour. 

Where the request cannot be met, for example due to staffing or clinical urgency, providers should explain the reasons clearly, offer options such as a chaperone or support person, and document the discussion and outcome. 

Responding to potentially discriminatory requests 

When a patient makes a request that appears discriminatory, such as asking not to be treated by staff of a particular ethnicity, the recommended approach is to respond respectfully to seek clarification. 

Some suggested steps include: 

• Enquire respectfully about the reason for the request: “This is a discrimination-free workplace. Can you help me understand the reason for your request?” 

• Assess urgency: if the situation is urgent or life-preserving, explain that the request cannot be accommodated without compromising timely care. 

• Consider underlying causes: if the request may stem from trauma or psychological distress, explore this and consider referral for specialist support. 

• Determine reasonableness: assess whether there are genuine clinical, cultural or psychological grounds for the request. 

• Respond transparently: explain that all staff are qualified and that discriminatory requests cannot be met, while offering emotional or cultural support options. 

• Debrief and document: ensure the clinical team understands the management plan and that support is available for affected staff. 

Staff rights and workplace safety 

Staff have the right to a safe and respectful workplace. When discriminatory requests are made, it is important that staff are informed of the request so they can make professional decisions, either to participate in the care or to withdraw where this would compromise their wellbeing. This approach both protects staff and upholds patients’ rights to considered, compassionate care. 

Managers should ensure debriefing and follow-up support is available and document all steps taken. 

HDC guidance and context

The Health and Disability Commissioner has confirmed that Right 7(8) should not be interpreted in a way that requires providers to act unlawfully or to accommodate discriminatory preferences. 

The HDC’s decision in Management of elderly woman with pressure sores and foot ulcers being nursed at home (pages 77–78) provides helpful context. In that case, the Commissioner noted that Right 7(8) exists to protect meaningful, person-centred choices in care, not to endorse preferences that undermine the rights of others or the quality and safety of services.³

Mrs A, an elderly woman with dementia, received 24-hour home care arranged through a nursing agency directed by registered nurse Mr B. Over 15 months she developed severe pressure sores and ulcers. 

Mrs A repeatedly expressed discomfort about a particular caregiver, Ms L. On 4 January 2001, through her welfare guardian Mr J, she requested that Ms L no longer provide her care. Later that year, after an incident where Ms L cut her fingernails too short causing bleeding, Mrs A again objected. Despite these requests, Ms L remained rostered. 

The Commissioner found there was no evidence that Mr B or the agency acted on or investigated Mrs A’s preference. This failure breached Right 7(8) of the Code, which gives consumers the right to express a preference as to who will provide care and have that preference met where practicable. 

The Commissioner noted that Mrs A’s concern was not directed at all caregivers, but only at Ms L. Additionally, Ms L was noted to not manage Mrs A’s difficult behaviour, sometimes responding to Mrs A’s aggression by ‘screaming back’ and causing Mrs A to be distressed. Given the narrow scope of her request, it was practicable for the agency to have reassigned that caregiver. The failure to do so, and to document or respond to Mrs A’s distress, contributed to an overall pattern of substandard care and a lack of respect for her dignity. 

In finding a breach, the Commissioner emphasised that responding to a vulnerable patient’s expressed discomfort about an individual caregiver is a fundamental part of providing respectful and appropriate care. 

Considerations for providers 

• Acknowledge and explore: Ask about the reason behind a patient’s request and listen respectfully. 

• Explain limits: Clarify that discriminatory requests cannot be upheld, but explore practical ways to support the patient’s comfort and safety, offer support persons. 

• Support staff: Inform involved team members of any request so they can use clinical judgment to decide whether to continue involvement. 

• Escalate if needed: Refer complex or recurring issues to an ethics or clinical governance group for review. 

• Document thoroughly: Record the discussion, decisions, and any support or referrals offered.⁴

Conclusion

Responding to potentially discriminatory requests requires balance, empathy, and clarity. While consumers have the right to express preferences, providers must ensure that all actions remain lawful, equitable, and consistent with a safe workplace for staff. 

By focusing on open communication, shared understanding, and practical solutions, providers can uphold both consumer and employee rights. 

For advice or support when managing these complex situations, Medical Protection advisers are available to assist members. 

References: 

1 Jones, Nicholas. Racism Fallout at North Shore Hospital After Patient Request to Avoid Asian Staff. RNZ, 5 October 2024. https://www.rnz.co.nz/news/national/529889/racism-fallout-at-north-shore-hospital-after-patient-request-to-avoid-asian-staff 

2 Davison, Isaac. Racially Abusive Patient at Waitākere Hospital Refused Care by Health Workers. NZ Herald, 24 October 2024. https://www.nzherald.co.nz/nz/racially-abusive-patient-at-waitakere-hospital-refused-care-by-health-workers/G4PMJRBQERFUHLXKAYKPXUZIJE/. 

3 Management of elderly woman with pressure sores and foot ulcers being nursed at home, Health & Disability Commissioner, 15 November 2004, Case 02HDC08905, Health and Disability Commissioner, NZ. https://www.hdc.org.nz/decisions/search-decisions/2004/02hdc08905/ 

4 Health New Zealand Waitematā. Patient Requests — Possible Discriminatory Requests (Clinical Practices Policy), Waitematā, Te Whatu Ora.