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How to deal with sex orientation rules

A practice protocol about the new regulations could prevent discrimination claims, says Andrew Firman

Don't get caught out 

Recruitment advertising
Scenario: you wish to recruit a GP partner and intend to place an advert which, as well as promoting your practice, emphasises features of the surrounding area. 

Advice: avoid trying to sell a particular lifestyle, for example, by mentioning 'excellent local grammar schools nearby'. This can suggest you are targeting a particular type of person.

Hiring out practice rooms
Scenario: aware that you have a general group promoting adoption which meets on your premises, a group that seeks to explore the issues around adoption of children by gay and lesbian couples asks if it could meet at a similar time on a different day. 

Advice: one of your partners who has strong religious views, says this must be on a day when she is not at the practice. The day offered is not suitable for attracting attendance. 

If it is self-evident that what is being offered is inferior to what the other group enjoys, a claim could be substantiated. 

GPs are used to offering their services to patients irrespective of sexual preference or persuasion and all employees have enjoyed their own protection against discrimination on the grounds of sexual orientation since late 2003. So how will the latest the Sexual Orientation Regulations affect GPs?

From 30 April 2007 it will be illegal in England, Wales and Scotland for providers of goods, services, facilities, premises, education or public functions to discriminate against the recipients on the grounds of their sexual orientation. Similar regulations have been in force in Northern Ireland since 1 January.

The government faced various challenges to the regulations in their original intended format from, in particular, faith-based groups.

Although the proposed regulations have at last been published, these challenges are partly the reason why the guidance is still not with us. What follows are the likely main issues for GPs.

Who will be protected?
The definition of sexual orientation for the purpose of the Sexual Orientation Regulations covers gay, lesbian, transsexual and heterosexual people.

Each group has the right to protection from discrimination on the grounds of their orientation.

Reference to a person's sexual orientation includes the orientation that a person is believed to have.

What will count as discrimination?
Direct discrimination is the less favourable treatment of a person on grounds of sexual orientation. Indirect discrimination is more difficult to define: it would occur if, for example, a GP is unable to reasonably justify applying a provision, criterion or practice to a patient to their disadvantage, which the GP also applies (or would also apply) equally to those of a different sexual orientation.

Do the new rules apply to colleagues?
They do not affect the way a GP treats colleagues because workplace relationships are outside their remit. Employees and partners in GP practices already have the right not to be discriminated against on grounds of their sexual orientation.

How do the rules affect patient treatment?
Until now, in order to comply with the GMC's Good Medical Practice (2006 edition) guidance, a registered doctor has been duty bound to treat patients as individuals and not discriminate against them. From 30 April, patients also have the statutory right not to be discriminated against by their GP on the grounds of their sexual orientation. GP partners could face a discrimination claim if, say, a gay patient complains that they have been offered a lesser quality service than that provided to heterosexual patients. This could include a GP declining on religious conscience grounds to recommend a same sex couple as potential adoptive parents. 

While proving a such a claim might be difficult, do not underestimate the time that could be taken up in responding to it. Consider introducing a surgery-wide protocol aimed at preventing such problems.

What about groups using the surgery?
If you offer part of your surgery premises for use by outside groups, turning down a request from a gay or lesbian interest group or granting it on inferior terms, could land you with a claim for sexual orientation discrimination. See box, above.

What about recruitment ads?
It will be unlawful to publish or 'cause to be published' an advertisement which indicates an intention to commit an act of discrimination. If you place an advert for the provision of services that directly or indirectly targets those of a particular sexual orientation only, then you may face a claim under the regulations.   

Mr Firman is a partner specialising in employment matters at medical specialist solicitors Carter Lemon Cameron in London; andrewfirman@cartercamerons.com 

Resources 

The government's Women and Equality Unit is due to publish guidance on the regulations soon.

www.womenandequalityunit.gov.uk

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