Criminality in consultations

Medical Protection provides assistance in about 30 cases a year in the UK where doctors are involved in allegations of criminal activity arising from their day-to-day work. Dr Emma Davies, Medicolegal Consultant at Medical Protection, looks at why these issues happen and what we can do to assist you.

Allegations of gross negligence manslaughter are thankfully rare, but we are regularly seeing cases of allegations of sexual assault/misconduct or physical assault arising from patient encounters.

The term sexual assault refers to sexual contact or behaviour that occurs without explicit consent of the victim. Sexual misconduct is uninvited or unwelcome behaviour of a sexual nature, or which can reasonably be interpreted as sexual, that causes offense, embarrassment, harm, humiliation or intimidation. Sexual misconduct includes causing offence by what we say as well as what we do.

Physical assault beyond the obvious can include physically restraining another person. As the need for physical restraint is extremely uncommon in the context of general practice I will focus on sexual assault/misconduct.

Complaints and allegations may be made to the practice, NHS England, the police, the regulator or direct to the police. If made to the practice, they 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.

Understanding how unfounded allegations come about can help reduce the risk of it happening to you or your practice.

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 help put patients at ease this may not the appropriate time to deploy it – put another way, ‘read the room’ before you speak!

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.

Case study

Miss B wrote a letter of complaint to the practice and the police 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 they took a long time and she had to hold her discarded clothing to cover herself up. Dr A then told her to stand up and face them so they could listen to the front. Miss B stated she was shaking as she felt very vulnerable and uncomfortable about the whole experience and that Dr A’s behaviour was sexually motivated.

Dr A contacted Medical Protection and we instructed a solicitor who assisted in preparing a detailed statement for the police investigation, and advised and accompanied Dr A when being interviewed by the police. The police did not charge Dr A but they did refer the matter to the GMC and in turn Dr A was advised to make NHS England aware of the GMC involvement.

Our medicolegal consultant worked with Dr A to reflect on what happened and why, as well as supporting Dr A through what was a very stressful and emotionally difficult time. Dr A engaged with NHS England and together with Medical Protection an action plan was agreed. Dr A reviewed the relevant GMC guidance and undertook some targeted CPD in professional boundaries. They identified changes to practice and agreed to a voluntary undertaking, which included 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, as well as keeping a log of all chaperoned examinations.

The GMC were satisfied that Dr A’s actions were not sexually motivated and that they had been engaging with NHS England, had fully reflected on the incident and made changes to practice, and they closed their case with no further action.