Lawyers for nurse in trans case criticise ‘irresponsible’ health board

Lawyers for a nurse who complained about sharing a hospital changing room with a trans doctor have condemned an NHS Fife statement on the case as “irresponsible”.

The health board published the four-page document online while evidence was being heard in a case brought by nurse Sandie Peggie.

The statement alleged the employment tribunal had triggered “a threat of physical harm and sexual violence” against NHS staff.

The matter was raised before the tribunal adjourned for the weekend and Judge Alexander Kemp said he would assess it before making any public comment.

A Police Scotland spokesperson said: “We have received information and it is being assessed.”

The statement posed a number of questions in the form of headlines and then attempted to answer them.

Topics covered ranged from NHS Fife’s role in the case to the restriction of public access to live proceedings.

It also revealed the tribunal had cost almost £259,000 as of 30 June – of which the health board was liable for £25,000.

When the statement was mentioned at the end of evidence, Ms Peggie’s junior counsel Charlotte Elves said it caused “some concern”.

She added it was “irresponsible and potentially unsafe in terms of what we know”.

Jane Russell KC, representing NHS Fife, said: “Unfortunately because this hearing has taken place in public, Fife’s witnesses have been exposed to a very unsafe environment and I’m afraid threats have been made to them as have threats been made to me.”

Judge Kemp said: “No participant whether witness, representative or participant should be intimidated and if that has happened its a matter for the criminal courts and Police Scotland.

“Obviously matters of defamation are not within our jurisdiction.”

Earlier, the tribunal heard a transgender doctor was “distressed” and sobbed while telling a senior colleague about a confrontation with a nurse over the use of female changing rooms.

Dr Elspeth Pitt told an employment tribunal Dr Beth Upton appeared pale and was “very shaken” when they met in a corridor at the Victoria Hospital in Kirkcaldy at the end of their shift.

Sandie Peggie and Dr Upton had earlier had a disagreement after the nurse told the doctor they should not be in the same changing room.

After the exchange on Christmas Eve 2023, Dr Upton complained to NHS Fife about Ms Peggie’s behaviour and the nurse was suspended on 3 January 2024.

On Friday the tribunal heard from Dr Pitt, who is a consultant in emergency medicine with NHS Fife.

She recalled being approached by Dr Upton about midnight, at the end of that day’s work.

The pair then moved from the corridor to a well-being room, which was a short walk from the changing room.

Dr Pitt, who was on call through the night into Christmas morning, was asked what state Dr Upton was in.

The consultant replied: “She looked very shaken and she was visibly distressed and upset.”

Dr Pitt added Dr Upton looked “quite pale” and “startled”.

The consultant was then told there had been a “very upsetting incident”.

Dr Pitt added: “She was really upset.

“She had felt very fearful and that point felt cornered.”

The tribunal said the encounter with Ms Peggie had “become very unpleasant and painful for her”.

Dr Pitt added: “The gist was that Sandie felt that Dr Upton should not be in the changing room.”

The consultant said she was told the tone of the disagreement was “aggressive” and “unkind”.

Dr Pitt said she mainly listened to Dr Upton but said she would report the matter and signposted the complainer to a British Medical Association (BMA) peer support network.

The consultant said she was not sure of the next steps but encouraged Dr Upton to get some rest and family time.

Dr Pitt told the tribunal she sent an email from her car to Dr Upton’s supervisor and the charge nurse.

The tribunal also heard an informal monthly meeting between senior consultants and senior nurses – held some time before the Christmas Eve incident – was made aware concerns had been raised about Dr Upton having access to the female changing room.

Dr Pitt said: “At one of those meetings before December, a member of senior nurses had said there had been a concern raised about Dr Upton using that changing room but that our understanding was that she was entitled to, that’s what we had been informed.

“We were not told of the specifics, that was to be aware that people had a concern.”

Ms Peggie’s junior counsel, Charlotte Elves, later raised an email sent on 29 December 2023 from Dr Kate Searle, Dr Upton’s line manager.

It said “we all support her and condemn the actions of Sandie”.

Dr Pitt said it would have been sent to around 20 senior consultants, and described it as “information sharing”.

The consultant said: “When I read ‘condemn the actions’ it was that we heard she had been verbally attacked.

“The way I would always think is anyone would condemn a behaviour that causes someone to feel unsafe or disrespected, that does not mean we condemn the person.”

She also told the tribunal Dr Upton’s sex was “just not something we talked about”.

On Wednesday, Ms Peggie was cleared of gross misconduct following disciplinary proceedings by the health board.

She had been accused of misconduct, failures of patient care and misgendering Dr Upton.

NHS Fife said an internal hearing found there was “insufficient evidence to support a finding of misconduct”.

The tribunal continues on Monday.