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Dr James Melia and Ms Sinead Lay explore some common misunderstandings and omissions that can result in allegations of sexual assault from a patient
Medical Protection frequently supports members who discover they have been accused of carrying out an inappropriate intimate examination.
Even highly experienced clinicians can unexpectedly find themselves the subject of such an allegation following what they believed was a routine consultation.
Given the personal and sensitive nature of intimate examinations, a complaint of this kind can escalate to an allegation of sexual assault.
In some cases, matters are reported to An Garda Síochána and may give rise to a criminal investigation. Concerns may also fall to be considered by the Medical Council.
In this article we explain why these complaints can arise, and the steps a clinician can take to minimise risk.
Consent
In many cases of this nature, a concern arises because the patient feels that the examination, or part of it, was unnecessary or not clearly linked to their presenting complaint, and that they therefore did not provide valid consent.
In Irish law, sexual assault is an offence under section 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as revised). Section 9 of the Act provides that a person consents to a sexual act only where he or she freely and voluntarily agrees to engage in that act.
The Act further makes clear that consent is not present where a person is mistaken as to the nature or purpose of the act. Consent may be withdrawn at any time and a failure to resist does not of itself constitute consent.
For clinicians, the practical significance of this framework is clear. It is not enough that a patient does not object to an intimate examination. The doctor must ensure that the patient understands what is proposed and why it is clinically indicated.
Where a patient later asserts that they did not understand the purpose of the examination, that misunderstanding may form the basis of a complaint or allegation, despite the absence of any improper intent.
Clear consent is therefore essential. For intimate examinations, consent should never be assumed or implied. Doctors should take time to explain sensitively what the examination involves and why it is clinically indicated for that particular patient.
In many cases the rationale will be obvious. However, in some situations the purpose of the examination may not be immediately clear to the patient. For example, a patient may not understand why examination around the breast is necessary to assess the apex beat, or may expect an external inspection of a lump rather than an internal examination. In such circumstances, a clear explanation in advance can prevent misunderstanding.
It is important to ask the patient if they have any questions and advise them that they should let you know if they are uncomfortable and the examination can be stopped at any time. You should also be alert to any non-verbal cues, which may indicate that the patient would prefer not to continue with the examination.
In addition to obtaining consent from the patient prior to the examination, it can often be helpful to describe or explain in brief terms what you are doing during the examination. This is especially important if the patient cannot see the examination.
The Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (the ‘Guide’) also advises doctors to respect patients’ dignity by giving them privacy to undress and dress and keeping them covered as much as possible.
Doctors should not help the patient to remove clothing unless they have been asked to do so.
Chaperones
As the Guide states, a chaperone can act as a safeguard for both the doctor and the patient during an intimate examination.
Doctors should ask the patient if they would like a chaperone to be present and record their wishes, and should be sensitive to what a patient may perceive as intimate.
If a chaperone is not available, the doctor should confirm if the patient wishes to proceed or make alternative arrangements, as long as the delay would not adversely affect the patient’s health.
A chaperone should be trained (ie, familiar with the procedure) and aware of how to raise any concerns. For this reason, a patient’s friend or family member should not act as a chaperone; however, they can still be present to provide support if needed.
If the patient declines a chaperone, but you feel it is important that one is present, you should take time to explain your reasons clearly to the patient in a way they can understand.
In most cases if a clinician has explained that they would feel uncomfortable or it was inappropriate to continue without a chaperone most patients will agree to have one present.
If the patient continues to decline despite this, or a chaperone is not available, the clinician should consider whether it is clinically safe to delay the examination until either a chaperone or another clinician who would be willing to examine without a chaperone is available.
Record-keeping
The importance of having clear records in these cases cannot be underestimated. You should record the outcome of any discussions around using a chaperone, including if an offer was made and declined.
If a chaperone is used, the record should include their name and role.
Case study
Dr G, a female GP, consulted with a 33-year-old patient who presented with a complaint of a vaginal lump and a history of a previous cervical polyp. Dr G explained that an internal examination was clinically indicated and offered a chaperone, which the patient declined.
While collecting equipment, another staff member offered to act as a chaperone, but Dr G indicated that the patient had declined. Dr G recorded “chaperone not required” in the clinical notes and proceeded with the examination.
No abnormality was identified. Towards the end of the consultation, Dr G asked the patient to indicate the area of concern to ensure nothing had been missed. The patient undertook a self-assessment in front of Dr G, but was unable to identify a palpable internal lump. The consultation concluded with reassurance and appropriate safety-netting advice.
The following day, the patient contacted the practice to complain. She stated that she felt violated by the examination and, in particular, experienced the request to undertake a self-assessment in front of the doctor as having a sexual undertone. She disputed that she had declined a chaperone and reported the matter to An Garda Síochána.
In light of Garda involvement, Medical Protection advised the member on the process of engaging with An Garda Síochána and the considerations arising from a potential criminal investigation. Members should be aware that criminal matters require independent legal representation.
Medical Protection also advised the member regarding any potential regulatory obligations, including whether disclosure to the Medical Council might arise depending on how the matter progressed.
No criminal charge followed.
Dr G subsequently reflected on her communication and documentation. In particular, she recognised that the entry “chaperone not required” did not capture the substance of the discussion or clearly demonstrate that a chaperone had been offered and declined. She also reflected that, in similar circumstances in future, she might consider arranging for a chaperone to be present despite an initial decline, where this was appropriate and clinically safe.
Allegations of this nature can be distressing and professionally challenging. Early contact with your medical defence organisation can provide practical guidance and support, helping you to navigate the clinical, regulatory, and legal considerations that may arise.
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