Gross negligence manslaughter (GNM) has received a large amount of media attention. Doctors are naturally concerned that any outcome that results in the death of a patient may lead to a criminal investigation in relation to an allegation of GNM. However, our experience indicates that GNM cases are rare: criminal allegations against doctors are more likely to be sexual assault than GNM.
Whether allegations proceed or not, we know members involved go through a significantly distressing period during and pending the outcome of the police investigation. At Medical Protection, we share our knowledge, experience and expertise with you to provide professional support that we hope you find valuable.
In the article we look at the themes and contributing factors leading to sexual assault allegations.
We have analysed the support Medical Protection has provided UK doctors in relation to more than 600 criminal cases from 2008 to 2017. Requests for assistance in relation to criminal matters are split across all the common membership grades. The majority of the requests for assistance concerned matters that fell within the scope of the benefits of membership.
Cases in which assistance with the criminal matter fell outside the scope of the member benefits included allegations relating to driving offences (of varying severity), personal misconduct (outside the clinical setting), and accessing extreme and/or child pornography.
Criminal cases allegations: an overview
Alleged sexual assault in the clinical setting involving patients – common themes and contributory factors
Analysis of criminal cases that arose in the context of a clinical examination highlighted key themes:
- The patient misunderstanding the purpose of the examination
- The patient misinterpreting touching
- Inappropriate comments and/or behaviour of a sexual nature by the doctor
- Historical allegations of sexual assault.
Misunderstanding the purpose of the examination
Our analysis indicated that the nature and purpose of the examination was misunderstood by some patients making an allegation. Chest examinations in female patients were the most frequent examinations giving rise to such misunderstandings.
Examination of the patient's breasts with an inadequate explanation (for example, in one case the allegations arose when a breast examination was undertaken as part of pill check [the allegation was historical and related to a time when a breast examination may have been undertaken in the context of a routine pill check]), abdomen, groin, lower back/spine and eye examinations (see case study 1 below) have all led to allegations. In addition, vaginal examinations when the patients consented for rectal examinations have led to misunderstandings.
Case study 1
Locum GP Dr A saw a patient, Ms F, who was complaining of a problem in her right eye. Dr A explained that he needed to look at the back of the eye; he turned out the light in the consulting room and performed a fundoscopy. While Dr A was leaning forward, his tie inadvertently (and unbeknown to Dr A) came into contact with Ms F’s blouse. She left the consultation thinking that Dr A touched her inappropriately and made a complaint.
Advice – Dr A should have given a clear explanation as to what the examination entailed and confirmed the patient was content for him to proceed before going ahead. Inadvertent contact of this nature can easily be misconstrued, especially in this particular context. Dr A should have been alive to this possibility and taken reasonable steps to minimise such risks (for example, by explaining why he put the light out, why he had to be so close, and tucking his tie in). If any inadvertent contact does occur during the course of an examination, an apology and an acknowledgement should be offered immediately.
- This case is based on a real-life scenario, with some facts altered to preserve confidentiality
Misinterpretation of touching
The reports of inappropriate touching most commonly originated in the outpatient, GP surgery, out-of-hours, or colonoscopy settings. One case followed manual manipulation therapy; another, a doctor putting his hand in the patient’s underwear to examine for a hernia. Allegations occurred in cases where a chaperone was absent but also some where a chaperone was present.
Inappropriate comments and/or behaviour of sexual nature
Patients have reported that their doctor made inappropriate sexual comments during the consultation and/or the examination. Inappropriate behaviours of a sexual nature have also been reported.
Historical allegations of sexual assault
In our analysis there were allegations made from consultations up to 40 years ago. Some of these were single incidents. Others were serial allegations of inappropriate sexual behaviour. Some were reported by more than one patient and sometimes by patients and practice staff.
The contributory factors included:
- Examination of vulnerable patients
- A chaperone not being present
- Inappropriate use of a chaperone.
Examination of vulnerable patients
Young (teenagers and early 20s) female patients were most likely to make allegations. Experience indicates that the majority of allegations were brought by a female patient against a male doctor. Patients with past histories of domestic abuse, mental health difficulties or who had made such allegations in the past were over-represented. A few cases involved examination of women in the postnatal period, and some where there were language difficulties.
A chaperone not being present
Patients have made allegations of sexual assault against doctors undertaking abdominal and vaginal examinations in the out-of-hours setting without a chaperone. Within normal working hours, examinations including chest, shoulder, groin (see case study 2) or testing for perineal sensation without a chaperone have also led to allegations.
Case study 2
Mr B, a consultant vascular surgeon in the outpatient clinic, examined a 74-year-old female patient’s abdomen and identified a pulsatile mass.
Mr B checked both femoral and distal pulses. Mr B usually had a nurse with him in the outpatient clinic, but on this occasion, the nurse had phoned in sick on the morning of the clinic, so Mr B was conducting the clinic alone.
A week later, Mr B was shocked to receive a letter of complaint from the daughter of the patient, who alleged that he unexpectedly and without explanation put his hands down her mother’s pants.
When a clinician is focused on the clinical findings, it is often easy to proceed to an aspect of the clinical examination that the patient was not expecting, without pausing to provide an explanation as to the nature and purpose of the examination and to seek the patient’s consent.
In this case, while an examination of the femoral pulses was clearly clinically indicated, the patient had no way of anticipating what the examination would involve and misinterpreted Mr B’s legitimate clinical intentions.
In this case, matters were compounded by the fact that Mr B was running the clinic in the absence of nurse support.
- This case is based on a real life scenario with some facts altered to preserve confidentiality
Inappropriate use of a chaperone
Some allegations of sexual assault have occurred when a chaperone is present. During vaginal examinations, including cervical smears or perianal examinations, the chaperone either left the room for a short period (for example, to get further equipment) or was positioned behind the curtains. In some cases the doctor used an inappropriate chaperone (for example, a teenager patient’s mother or the doctor’s wife).
Top tips to minimise the risk of an allegation of sexual assault arising in the context of a clinical consultation
This is not an exhaustive list of recommendations, but key learning points from our analysis include:
- Think about aspects of the examination that a patient may perceive to be intimate.
- Make sure that you fully explain the nature and purpose of any examination and obtain the patient’s consent before you proceed.
- Make sure you continue to explain the nature and purpose of the examination as the examination proceeds. If the nature of the examination changes (for example, your clinical findings may prompt you to do an examination that you may not have initially contemplated, such as checking for lymph nodes, feeling pulses, etc), it is important to pause, explain your findings and the nature of any further examination that may be required, and to obtain the patient’s consent before you proceed.
- Conduct any examination that may be perceived to be intimate in the presence of a chaperone (unless the patient objects to the presence of a chaperone) – please refer to the section below for more detailed guidance in relation to the use of chaperones.
- While allegations brought by patients of the same gender as the examining doctor are less common, the same principles apply in relation to the approach to examinations that the patient may perceive to be intimate.
The role of a chaperone may include:
- Comforting and reassuring the patient
- Assisting the doctor with the procedure and/or examination
- Protecting the doctor against unfounded allegations of sexual assault.
The experience of Medical Protection is that it is rare for an allegation of inappropriate touching to arise when a chaperone has been present. In circumstances when such allegations arise, the testimony of the chaperone is often pivotal to the doctor’s defence.
Medical Protection has been involved in cases when an allegation has been brought in the presence of a chaperone, in circumstances when the chaperone has been not as well placed to assist, for the following reasons:
- The chaperone was positioned outside the curtain, hence the examination was undertaken out of the view of the chaperone
- The allegation arose at a time when the chaperone had left the consultation to collect some equipment
- A vaginal examination was allegedly undertaken when the patient had consented to a rectal examination, and the chaperone was not positioned in a way that would allow them to determine which examination was undertaken.
A doctor is afforded the best protection against an unfounded allegation of sexual assault by the presence of a trained chaperone who has a clear view of the procedure/examination.
In practical terms, the positioning of the chaperone will be determined by the nature of the examination/procedure, the competing functions of the chaperone/clinician, the physical constraints of the consulting room and the consent of the patient. It may not always be possible for the chaperone to be positioned in a place that will provide them with a clear view of the procedure/examination.
What do I do if a chaperone is unavailable?
There may be occasions when a chaperone is unavailable (for example, in the context a home visit, due to staff sickness, etc). In such circumstances, the doctor should first consider whether or not, on a clinical basis, the examination is urgent.
- If the examination is not urgent, then it might be possible to simply rearrange the appointment for a time when a chaperone will be available.
- If the examination is clinically indicated on an urgent basis, but the doctor has enough information from the history to indicate that the patient would require an assessment by a colleague from the appropriate specialty in any event (with the expectation that they would have access to a chaperone), then it may be appropriate simply to refer the patient to the relevant colleague (for example, a GP or surgeon who suspects that patient might have a gynaecological emergency).
- If the examination is urgent but hospital admission/involvement from a colleague from the appropriate specialty is not indicated on the history alone, there may be occasions when a doctor goes ahead in the absence of a chaperone. In such circumstances, the patient’s consent should be obtained and recorded. In addition, the fact that the patient was examined in the absence of a chaperone should be recorded, together with the rationale for the same.
What do I do if the patient declines a chaperone?
The patient may decline a chaperone and, in such circumstances, it may be entirely appropriate for the doctor to proceed with the examination (albeit the doctor should record that a chaperone was offered and declined).
There may be occasions when the patient declines a chaperone but the doctor may feel that it would be wise to have a chaperone present for their own protection (for example, an intimate examination on a young adult of the opposite gender; a vulnerable patient with mental health problems).
In such circumstances:
- The doctor should state that they would prefer to have a chaperone, explaining that the role of the chaperone is in part to assist with the procedure and provide reassurance.
- The doctor should explore the reasons why the patient does not wish to have a chaperone and address any concerns they may have.
- If the patient still declines, the doctor will need to decide whether or not they are happy to proceed in the absence of a chaperone. This will be a decision based on both clinical need and the requirement for protection against any potential allegations of improper conduct.
- The doctor should consider whether or not it would be appropriate to ask a colleague to undertake the examination (although the chaperone issue may still prevail).
- The doctor should always document that a chaperone was offered and declined, together with the rationale for proceeding in the absence of a chaperone.
- Consult and follow GMC guidance, Intimate examinations and chaperones
- Establish there is a need for an examination that may be perceived to be intimate and discuss the nature and purpose of the examination with the patient.
- Provide the patient with an opportunity to ask questions about the proposed examination.
- It may be appropriate to involve an interpreter to overcome language barriers.
- Make sure that the patient understands the nature and purpose of the examination before you proceed.
- Seek and record the patient’s consent.
- Offer a chaperone to all patients for examinations that may be perceived to be intimate.
- If the patient declines a chaperone, record this decision in the notes.
- If the patient declines a chaperone and as a doctor you would prefer to have one present, explain to the patient that you would prefer to have a chaperone present and, with the patient’s agreement, arrange for a chaperone.
- Be aware and respect cultural differences.
- Religious beliefs may also have a bearing on the patient’s decision whether to have a chaperone present.
- Give the patient privacy to undress and dress.
- Use drapes where possible to maintain dignity.
- Explain what you are doing at each stage of the examination and what you propose to do next, ensuring that the patient consents before you proceed.
- Keep the discussion relevant and avoid personal comments.
- Record the identity and designation of the chaperone in the patient’s notes.
- Record any other relevant issues or concerns immediately after the consultation.
- Keep the presence of the chaperone to the minimum necessary period (for example, there may be no need for them to be present for any subsequent discussion of the patient’s condition or treatment).
An allegation of inappropriate touching can lead to:
- A complaint
- A complaint to the police
- A complaint to the GMC
- A claim
- A combination of the above.
While the Medical Protection data shows that it is relatively rare for a doctor to be convicted of such an allegation, the investigations can often take a considerable amount of time and a significant personal toll on the doctor (and sometimes their family).
Several simple steps can be taken to minimise the risk of becoming the subject of such an allegation and these can be summarised as follows:
- Think about aspects of the examination that a patient may perceive to be intimate.
- Make sure that you fully explain the nature and purpose of any examination and seek the patient’s consent before you proceed.
- Be mindful of scenarios when the patient may misunderstand the nature and purpose of the examination and/or there may be a risk of inadvertent touching.
- Follow the relevant chaperone policy.
Finally, if you become the subject of such an allegation, please contact Medical Protection on 0800 561 9090 at the earliest available opportunity.
GMC, Intimate examinations and chaperones (April 2013)
Dr John Jolly provides advice and educational support to help members reduce their risk of experiencing medicolegal cases. He is a former associate postgraduate dean and consultant obstetrician and gynaecologist, having joined Medical Protection in 2015.
Dr Richard Stacey has had significant experience of assisting doctors who have been the subject of an allegation of sexual assault.