When approached by third party organisations with requests for information relating to a patient’s gender history, you might be uncertain about what to do and what should be considered prior to disclosure. Padma Reddy, case manager at Medical Protection, and Dr Heidi Mounsey, medicolegal consultant, have all the relevant guidance
When considering requests for information relating to a patient’s gender history, it is particularly important to know that it is unlawful to disclose the gender history of a patient without their consent.
Patients should never be asked to produce a gender recognition certificate to prove their trans status. Trans people are not required to obtain a gender recognition certificate: many simply choose not to while others may not yet meet the eligibility criteria (for example, they have not lived in their acquired gender for a period of two years). In addition, the general guidance on medical confidentiality and information governance apply to all patients regardless of whether they have a gender recognition certificate or not.
The relevant legislation to refer to when considering a request for disclosure about a patient’s gender history is the Gender Recognition Act 2004.
Guidance on the Act’s application in terms of disclosure can be found at section 22 of the Act:
“It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.”
Information relating to an application for a gender recognition certificate is protected information if it is acquired in a professional capacity and should therefore not be disclosed without consent.
However, the Gender Recognition Act 2004, at section 22 (4), also sets out those situations when it would not be an offence to disclose protected information:
“But it is not an offence under this section to disclose protected information relating to a person if —
(a) the information does not enable that person to be identified,
(b) that person has agreed to the disclosure of the information,
(c) the information is protected information by virtue of subsection (2)(b) and the person by whom the disclosure is made does not know or believe that a full gender recognition certificate has been issued,
(d) the disclosure is in accordance with an order of a court or tribunal,
(e) the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal,
(f) the disclosure is for the purpose of preventing or investigating crime,
(g) the disclosure is made to the Registrar General for England and Wales, the Registrar General for Scotland or the Registrar General for Northern Ireland,
(h) the disclosure is made for the purposes of the social security system or a pension scheme,
(i) the disclosure is in accordance with provision made by an order under subsection (5), or
(j) the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.”
Further specific exemptions apply to medical professionals, which would allow protected information to be disclosed. These can be found at Section 5 of Statutory Instrument 2005 No.635, which states:
“It is not an offence under section 22 of the Act to disclose protected information if—
(a) the disclosure is made to a health professional;
(b) the disclosure is made for medical purposes; and
(c) the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.”
To aid clinicians, the GMC has provided useful guidance, Trans healthcare, regarding the care of transgender people. Under the section titled Disclosing gender history the guidance states:
“It is unlawful to disclose a patient’s gender history without their consent.
“When communicating with other health professionals, gender history doesn't need to be revealed unless it is directly relevant to the condition or its likely treatment.
“The gender status or history of trans and non-binary people should be treated with the same level of confidentiality as any other sensitive personal information.”
The GMC also recognises that there can be occasions when disclosure may be necessary, either in the public interest or to allow safe care to be provided, and refers to its guidance on Confidentiality, which states at paragraphs 30 and 31:
“If a patient objects to particular personal information being shared for their own care, you should not disclose the information unless it would be justified in the public interest, or is of overall benefit to a patient who lacks the capacity to make the decision.
“You should explain to the patient the potential consequences of a decision not to allow personal information to be shared with others who are providing their care. You should also consider with the patient whether any compromise can be reached. If, after discussion, a patient who has capacity to make the decision still objects to the disclosure of personal information that you are convinced is essential to provide safe care, you should explain that you cannot refer them or otherwise arrange for their treatment without also disclosing that information.”
It is important to note that it can be a crime under the Gender Recognition Act 2004, with a fine of up to £5,000 on conviction, for any individual who has obtained the information in an official capacity to disclose that a person has a gender recognition certificate or to do anything that would make such a disclosure. Therefore, good information governance is important to avoid unlawful disclosures of a person’s trans status that could leave medical professionals open to legal proceedings as well as inadvertently ‘outing’ trans patients.
Requests from transgender patients
Transgender patients themselves may also make requests regarding their medical records or treatment, or for information that they would like to be provided to a third party. Common scenarios where members have called us for advice include:
A request to change a patient’s gender on their medical record
The GMC, in its guidance Trans healthcare, is clear that such a request is to be respected. It is not a requirement for the patient to have a gender recognition certificate or an updated birth certificate prior to doing so.
Guidance issued by Primary Care Support England (PCSE) is also clear on this matter and states: “Patients may request to change gender on their patient record at any time and do not need to have undergone any form of gender reassignment treatment in order to do so.”
PCSE also provides useful information on the process of registering a patient who has changed their gender, which can be accessed at: https://pcse.england.nhs.uk/services/registration
In summary, when a patient changes gender, they will be assigned a new NHS number and should be registered as a new patient at the practice, with previous medical information being transferred into a new medical record. The practice must inform the patient that a request to change gender will result in a new NHS number being issued and that this process is not reversible. Should the patient wish to revert to their original gender, a third NHS number would be issued. The practice will need to confirm to PCSE that this has been discussed with the patient.
It is important to be aware that if the patient is changing their gender from female to male, cervical screening becomes the responsibility of the practice. The GMC advises that patients should be informed they would not automatically be contacted regarding such screening, and the implications discussed with them.
A request from a patient to support changing their gender on a passport
In order to change gender on a passport, the Passport Office states:
“Send one of the following when you apply for a passport:
• a Gender Recognition Certificate
• a new birth or adoption certificate showing your acquired gender
• a letter from your doctor or medical consultant confirming your change of gender is likely to be permanent
If you’re sending a letter from your doctor or medical consultant and you’re changing your name, you’ll also need to supply both of the following:
• evidence of your change of name (such as a deed poll)
• evidence that you’re using your new name (for example a payslip, or a letter from your local council).”
If approached for such a letter, it may be prudent to sensitively explore with the patient their commitment to their acquired gender, and offer to refer them to specialist services if this has not already occurred. While a clinician may not feel they can confidently state that a patient’s gender change is likely to be permanent, it may be possible to couch a letter in terms such as: “I am not aware of a reason why the change in gender would not be permanent.”
In all the above scenarios, should a clinician feel they cannot comply with the request from the patient (for example, they do not feel they have sufficient expertise in the matter or they have insufficient knowledge of the patient) then a referral to a colleague should be made, with this being explained to the patient.
A request for bridging hormones
Trans patients often face a lengthy wait for an initial appointment with a gender specialist, which may cause distress and deterioration in their mental health. Some patients may seek to purchase products online from unregulated sources while they are awaiting an appointment and may confide in a clinician that they are doing so.
Under these circumstances it is important to discuss the risks of self-medicating and to understand the patient’s preferences and concerns. In Trans healthcare, the GMC suggests that a harm reduction strategy in such circumstances may be appropriate, whereby a clinician initiates hormone therapy prior to specialist assessment, if it is considered that the potential risk in doing so is lower than the risk of the patient obtaining medications via an unregulated source.
The GMC states that such bridging prescriptions may be issued in cases where all the following criteria are met:
- the patient is already self-prescribing or seems highly likely to self-prescribe from an unregulated source (over the internet or otherwise on the black market)
- the bridging prescription is intended to mitigate a risk of self-harm or suicide, and
- the doctor has sought the advice of an experienced gender specialist* and prescribes the lowest acceptable dose in the circumstances.
*An experienced gender specialist is someone who will have evidence of relevant training and at least two years’ experience working in a specialised gender dysphoria practice such as an NHS GIC.
The benefits and risks, and possible side effects, of the proposed treatment should be explained to the patient, along with when and how to seek further help (eg in the event of adverse effects); the likely duration of the treatment; and arrangements for ongoing review, such as additional consultations and blood tests.
Should you be in doubt whether it would be appropriate to disclose the gender history of a patient without their consent, or if you have any other queries relating to the subjects in this article, please contact Medical Protection’s medicolegal advice line on 0800 561 9090.