23/10/2026
NHS England has, on 15 October 2026, revised its Guidance in respect of Privacy, Dignity, and Safety in Hospital Accommodation, reaffirming its commitment as set out in the NHS Constitution to ‘single and same sex accommodation’ and how this should be taken forwards. At the same time NHS England also provided separate Guidance on the provision and use of NHS staff facilities. In this article, we focus on NHS England’s Privacy, Dignity and Safety in Hospital Accommodation Guidance the aim of which is stated as ensuring “care is safe, effective and respectful of each person’s privacy, dignity and wellbeing”.
Background
The landmark ruling in For Women Scotland v Scottish Ministers (2025) UKSC 16, held that the terms “women” and “sex” under the Equality Act 2010 means “biological woman” and “biological sex”, not gender or sex acquired or certified through a Gender Recognition Certificate.
Whilst the judgement was limited to the definitions in the Equality Act 2010, a wide range of different issues and organisational functions subsequently needed to be considered, including but not limited to, the operation of single sex services such as bathrooms, changing rooms, hospital wards and accommodation; and how to balance competing interests within these environments and services.
Statutory Guidance was produced by the Equality and Human Rights Commission (“EHRC”) who updated its Code of Practice for Services, Public Functions and Associations. This was published on 5 August 2026. The Code of Practice applies to public bodies and organisations which exercise public functions (such as the provision of NHS healthcare) and associations. The Code of Practice provides interpretation and expectation for how such organisations should comply with their legal duties in line with the Equality Act 2010, considering the landmark case. We previously examined the Code of Practice in respect of key changes for single sex and separate sex services.
Privacy, Dignity and Safety in Hospital Accommodation: NHS England Guidance 2026
NHS England’s revised Guidance supersedes its 2019 document: Delivering Same Sex Accommodation. The updated Guidance outlines how NHS funded care organisations (including NHS funded patients in independent Providers) are expected to deliver services and make decisions in this context. It also outlines reporting requirements for same sex accommodation breaches as well as the roles and responsibilities for ensuring that the Guidance is appropriately implemented by and embedded within the NHS.
Importantly the Guidance re-affirms the NHS Constitution pledge for same sex accommodation and outlines how NHS organisations should manage same sex accommodation requirements in light of the For Women Scotland judgement and EHRC’s Updated Code of Practice.
Key areas which contribute to privacy, dignity and safety
Whilst the NHS has a duty to all patients, there are many factors to consider when deciding where to place a patient, and to manage their care. Inevitably there will be difficult and sensitive issues which require careful balance and judgement.
NHS England’s Guidance is clear that in every situation any individual’s “clinical need” should always come first along with “safeguarding patients from the risk of harm, abuse or neglect”; and this should be the overarching driver in any decision making. Likewise, decisions should also encompass regular communication and be taken in partnership with an individual as far as possible. Key factors to consider are: (i) what are a patient’s clinical needs, (ii) what is safe and fair (on a case-by-case basis), and (iii) how can the privacy and dignity of patients be respected?
NHS England suggests that there are four key areas of focus which contribute to privacy, dignity and safety more widely. These are in respect of staff skills so that there is familiarity with processes, confidence to consider risk, to liaise and communicate with patients and to use professional judgement in this context. The Guidance also considers the care environment including ensuring privacy for conversations, identifying the needs of all affected patients, identifying all available options and considering where a patient or patients can be cared for safely and respectfully. Communication is also a key area of focus including assessing the communication and accessibility needs of patients, supporting shared decision making as far as possible, maintaining regular communication so that people are kept updated, and documenting decisions so that they are clear. The fourth key area is one of Measurement - the Guidance also emphasizes that recording and monitoring accommodation decisions and breaches helps organisations understand whether standards of care are being met and how services can improve. This means that the expectation is that NHS providers should:
Appropriately update and apply its policies
Report patient safety issues and same-sex accommodation breaches as required
Use any reports of breaches and other information to improve services
Same sex hospital accommodation: what does this mean?
In line with the Supreme Court’s judgement and updated EHRC Code of Practice: NHS England’s Guidance is clear that single-sex services, such as hospital accommodation, should be provided on the basis of ‘biological sex’. The Guidance outlines that this means in respect of services:
Women should not have to share sleeping accommodation with men.
Men should not have to share sleeping accommodation with women.
Women should not have to share toilet or bathroom facilities with men.
Men should not have to share toilet or bathroom facilities with women.
Women should not have to walk through an area occupied by men to reach toilets or bathrooms, excluding corridors.
Men should not have to walk through an area occupied by women to reach toilets or bathrooms, excluding corridors.
NHS England’s Guidance also indicates that “to maintain hospital accommodation as single sex under the Equality Act 2010, trans people and others with the protected characteristic of gender reassignment should be accommodated in line with their biological sex”; while also balanced and ensuring that clinical needs are met, and privacy, dignity and safety are maintained for all (as far as possible).
Where it is not clinically appropriate to deliver care to a patient on a ward or bay that aligns with their biological sex, organisations should identify alternative arrangements, based on an assessment of the specific circumstances in each instance, and balancing the individual patient’s needs with wider clinical requirements for alternative accommodation including single rooms (for example in respect of patients receiving end of life care).
Where clinical needs and same-sex accommodation requirements cannot both be met, clinical need must take priority, and “staff should take extra care to protect the privacy, dignity and safety of all patients” in these settings. However, neither a trans person, nor any individual with a protected characteristic should be put a position where there is no service that they can use.
Further, the delivery of same sex accommodation is not a valid reason for patients to receive care in a non-designated clinical space (i.e. in the corridor) nor for an individual patient’s care to be compromised.
When the use of mixed-sex accommodation is unavoidable, every effort should be made to provide accommodation that meets all necessary legal requirements and Guidance as soon as possible. Staff should also take extra care to ensure the privacy and dignity, of all patients affected in the interim.
In every instance, the patient, (and / or their relatives and their carers where appropriate) should be informed of (i) the reasons why patients of different sexes are being accommodated together, and (ii) what is being done to address the situation and the expected timeline for doing so.
Any placement decision and the reasons for it should be clearly recorded where a breach occurs, as well as any discussion(s) with patients. The breach should also be reported in line with the Guidance.
Breaches of same sex accommodation: three scenarios
NHS England’s Guidance (including in respect of same sex accommodation) is outlined to always apply in some settings. This includes all inpatient ward care in acute and community hospital settings, all mental health inpatient units (noting separately some potential for mixing in scenarios within psychiatric intensive care units), areas where a procedure is taking place and a patient will require a period of recovery, and areas where patients with infectious diseases are being cared for together (although see below).
There are also settings where the Guidance does not apply including A&E departments and urgent treatment centres, adult critical care units (levels 2 and 3 in line with the Intensive Care Society’s standards) and areas where active treatment is being delivered – ie radiotherapy, renal dialysis and so on. Specifically, NHS England’s Guidance in respect of same sex accommodation states that it does not apply in respect of:
any units or wards that are exclusively responsible for the care of children and young people (unless a reasonable request is made by an individual child or their parent for their care to be delivered in a single-sex environment and it would be clinically and operationally appropriate to do so). This includes paediatric and children’s wards or units and paediatric intensive care.
instances where admitted patients are being cared for in the same area to help manage an outbreak of infectious disease within the healthcare setting (but only when moving the patients to a single-sex setting would be detrimental to the patient’s recovery or lead to an increased risk of infection for other patients). Patients who are admitted with a known infection should continue to be accommodated on a single-sex basis, as well as being isolated by infection
instances where a patient is receiving end-of-life care and the sole reason for moving would be to achieve a single-sex service.
In some settings, NHS England’s Guidance in respect of same sex accommodation is indicated to apply only when a decision has been made to transfer or discharge the patent, but the patient continues to remain on the unit four hours after the decision was made. Such settings outlined are: (a) enhanced care (level 1 as per the Intensive Care Society’s standards) where patients require more detailed observations or interventions than can be met on a general ward and (b) any units where a patient is being assessed, treated or observed, such as an acute medical unit (AMU) and medical assessment units (MAU) or surgical assessment units (SAU).
Reporting
All breaches of same-sex hospital accommodation must be reported through the Strategic Data Collection System. Each occurrence should be counted once for national reporting purposes, regardless of duration. There are some frequently asked questions within the Guidance to help explain how breaches should be counted in respect of some more challenging scenarios. Local monitoring should also take place to support Board oversight and to drive ongoing service improvement.
Next steps
Going forwards NHS organisations must:
Consider NHS England’s Guidance documents alongside all relevant legal frameworks, and review local policies, practices and environments as needed.
Ensure that local decisions on facilities for patients and staff are lawful, proportionate, evidence-based and clearly documented, while maintaining privacy, dignity, safety and respect for all. Decisions should be consistent and have appropriate escalation when difficult issues arise.
Have a clear plan to address any areas where change is required and for monitoring and reporting.
Ensure appropriate staff training - staff should understand what is expected of them and know where to seek advice on complex cases.
Continue to work to deliver the NHS Constitution’s pledge to eliminate mixed-sex accommodation
How we can help
We are proud to have a specialist multi-disciplinary team spanning our Health & Care Regulatory, Employment, and Litigation & Advisory departments, dedicated to advising on matters related to complex gender identity and philosophical belief. This team brings a unique combination of experience and skill from across the health, social care, local authority and independent sectors. We can help to review policies considering these changes and advise on any issues arising under the Equality Act 2010 as well as provide training to staff.
We have a broad depth of knowledge across complex legal queries, human rights, data protection / records management, substantive policy reviews and training in respect of all aspects of both the Gender Recognition Act 2004 and Equality Act 2010. In particular, the team advises NHS acute Providers, mental health Providers, and Integrated Care Boards, as well as Local Authority and private Providers in relation to the provision of health and social care to individuals, including on hospital wards, in prisons, and in wider public and private care settings, as well as dealing with challenging legal queries for sensitive gender related matters in relation to the same.
Consulting legal experts across all relevant fields brings a unique and innovative perspective to clients to meet the wide-ranging challenges faced organisationally. Our team understands the practical way the relevant legal frameworks and Guidance impact with a range of issues faced, and the combined skill set of specialist lawyers brings a rich offering and benefit to both our public and independent sector clients.
If you wish to discuss the issues within this article, please contact Jane Bennett, Associate, Julia Jones Partner, or Stuart Marchant, Partner.
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