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Reducing the risk of unfounded allegations of sexual misconduct

By Dr Emma Davies and Dr Rachel Birch - 05th Nov 2023

sexual miscondcut

Dr Emma Davies and Dr Rachel Birch delve into the common underlying reasons for these unfounded allegations and how they can be avoided.

While gross negligence manslaughter allegations are fortunately infrequent in Ireland, at Medical Protection, we do regularly encounter cases involving allegations of sexual violence or assault stemming from patient interactions. Understanding how unfounded allegations come about can help reduce the risk of it happening to you.

In Ireland, sexual violence criminal charges include rape, aggravated sexual assault, sexual assault, and sexual harassment. The term “rape” refers to unlawful sexual intercourse that occurs without explicit consent of the victim. Aggravated sexual assault involves serious violence, or the threat of serious violence, or is such as to cause severe injury, humiliation or degradation of a grave nature to the victim. Sexual assault involves a less serious threat of violence, but there is intentional assault and an aura of indecency. Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, which has the effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.

There are three different categories of assault charge: Assault; assault causing harm; and assault causing serious harm. In all three categories, the use or expected use of force is an important element. The main focus of this article will be on unfounded charges of sexual violence within the context of a patient encounter.

Complaints and allegations may be made to An Garda Síochána, the practice or hospital, or the Medical Council. If a complaint is sent to you directly, this should always be taken seriously and investigated robustly for the sake of both the victim and the alleged perpetrator. Allegations can come from patients of all ages, gender, and sexuality.

Poor communication and inadequate consent

What we may think of as routine or necessary may not be apparent to the patient. A patient may not understand why a presentation of painful calves when walking could indicate the need for palpation of a femoral pulse or listening to their heart – both are intimate areas of the body and are not the place where the pain is. Taking time to explain your thought process, rationale for examination and what the examination will involve is an essential part of consent.

Failing to offer a chaperone

Patients will differ in what they deem to be an intimate examination and for some just being touched or having to be in close proximity may be very difficult, especially for vulnerable people. There may also be cultural reasons why a patient may find an examination distressing. For all intimate examinations and for examinations where your patient appears particularly nervous or embarrassed you should offer a chaperone. The chaperone should be suitably trained, familiar with the examination and be able to see what the doctor is doing (if practical). If a patient declines a chaperone, but you feel uncomfortable in proceeding and the examination is not time critical you could defer the examination to someone else. You should make clear notes about the discussion around chaperones and the presence of a chaperone in the consulting room.

Poor understanding of dignity

Patients should be offered a space to be able to undress in private and have something available to keep them covered as much as possible. You should not remove a patient’s clothing or start helping them undress unless you have their specific permission to do so.

Behaviour and attitude

Patients need to know that they can trust their doctor; maintaining a professional attitude and taking into account the sensitivities the patient may have are essential. Making personal remarks or going “off topic” can lead to patients misinterpreting intentions. Whilst humour can sometimes help put patients at ease this may not be the appropriate time to deploy it – put another way, “read the room” first.

Maintain awareness of the power dynamic between doctor and patient. If a patient asks you to stop during an examination, you should abide by their wishes. You should also be alert to non-verbal communication, which may indicate that the patient does not want to continue with the examination.

Medical Council ethical guidance

Doctors should explain to patients the purpose of any examination and what is involved, and seek their consent, prior to any examination.

The dignity of the patient should be respected, and they should be given privacy to undress and dress, as well as allowing them to keep covered as much as possible during the examination.

Doctors must offer a chaperone for an intimate examination, noting this in the patient’s medical record. They should also record if a chaperone was present, had been refused or was not available, but the patient was happy to proceed.

In the event that a patient expresses concern about the conduct of or need for an examination, doctors are advised to contact their medical defence organisation for further advice.

Case scenario

Miss B made a complaint to the gardaí following a consultation with Dr A. She stated that Dr A had asked her to take off her top and go behind the curtain. When Dr A listened to her chest at the back, she alleged that he took a long time and she had to hold her discarded clothing to cover herself up. She reported that Dr A then told her to stand up and face him so he could listen to the front. Miss B stated that she was shaking as she felt very vulnerable and uncomfortable about the whole experience and that Dr A’s behaviour was sexually motivated.

The gardaí attended Dr A’s practice and asked him to attend an interview under caution the following day. At that stage, Dr A was not provided with any details of the allegations, but was advised only that they were investigating criminal allegations in the context of Dr A’s consultation with Miss B.

Dr A contacted Medical Protection and discussed the case with a medico-legal consultant, who instructed a solicitor who assisted in preparing a detailed statement for the gardaí investigation and accompanied Dr A when being interviewed by the gardaí. The gardaí did not charge Dr A and accepted Dr A’s account of the clinical examination in the context of symptoms of a chest infection.

Later that month, Dr A received correspondence from a case officer at the Medical Council, informing them that Miss B had made a complaint regarding the consultation. Whilst she had written that she was satisfied with the gardaí investigation and now did not feel that Dr A’s actions were sexually motivated, nevertheless she sought an apology for the distress she had experienced and reassurance that this will not happen to another more vulnerable patient.

The medico-legal consultant outlined the process to Dr A, in particular that he would shortly be invited to respond to the preliminary proceedings committee (PPC) of the Medical Council regarding Miss B’s concerns. They provided advice and assistance to Dr A in preparing a factual chronology of the consultation and a response to the patient’s concerns.

Since the incident, Dr A had reflected on the fact that he had not explained the purpose of the examination, which the patient had considered to be personal in nature. Dr A was keen to learn from this incident and had undertaken some targeted continuing professional development as well as discussing the case with his partners. As a result, they had implemented a chaperone policy at the practice, ensuring an appropriately trained chaperone was available for any examination that may be perceived as intimate or may be distressing or feel personal to patients. He made reference to this in his response, as well as offering an apology for the distress that Miss B had experienced.

The PPC were satisfied that Dr A’s actions were not sexually motivated and they closed their case with no further action. Dr A was very grateful to have received Medical Protection’s support throughout the whole stressful and difficult time.

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