Failure to explain examination and failure to offer opportunity to have a chaperone present

In relation to physical and intimate examinations the Guide to Professional Conduct and Ethics for Registered Medical Practitioners, 2009 acknowledges that clinical assessments of patients often involve physical examinations as well as relevant history taking. The Guide advises that:

  • The practitioner should explain what this examination will entail and seek permission from the patient before making a physical examination.
  • Where an intimate examination is necessary, the practitioner should explain to the patient why it is needed and what it will entail.
  • The doctor should inform the patient that they can have a chaperone present if they wish.

A patient’s decision as to whether or not they wish to have a chaperone present should be recorded in the patient’s notes. 
Failure by practitioners to act in accordance with the above guidance can result in complaints being submitted to the Medical Council. The majority of these cases involve patient discomfort with the manner in which an examination was undertaken or consent issues regarding the lack of information that was provided regarding the procedure prior to commencement.

In one such case which was heard by the Fitness to Practise Committee (“FTPC”) a doctor faced a number of allegations regarding a physical examination of a patient’s legs and breasts. The examinations in question took place within a hospital setting. In respect of the examination of the patient’s limbs it was alleged that the practitioner‘s face was unnecessarily or inappropriately close to the patient’s face and the patient could feel the practitioner's stomach against her body.

In relation to the breast examination the patient alleged that the practitioner had carried out an examination of her breasts without offering her the opportunity to elect to have a chaperone present. The allegation also included reference to the fact that the practitioner had failed to explain to the patient that the examination would be commencing, the reason for the examination and crucially that he had failed to ensure that the patient understood these reasons.

In respect of the manner in which the breast examination was conducted the complainant alleged that the practitioner had pulled up her bra thereby exposing her breasts; and failed to react adequately or at all when he was aware or ought to have been aware that the patient was uncomfortable with the manner in which he was conducting the examination.

The doctor also made efforts to pursue a relationship of a romantic nature with the patient which involved the doctor obtaining contact details from the patient’s medical records and telephoning her on a number of occasions for purposes unrelated to her medical care.

Having considered all of the evidence, the role of the “FTPC” is to decide whether the facts have been proved beyond reasonable doubt and, if so, whether the facts as proved amount to either professional misconduct, poor professional performance or other grounds as may have been set out in the notice of inquiry.

Professional misconduct is defined in paragraph 2.1 of the Ethical Guide as:

a) Conduct which doctors of experience, competence and good repute consider disgraceful or dishonourable; and/ or
b) Conduct connected with his or her profession in which the doctor concerned has seriously fallen short by omission or commission of the standards of conduct expected among doctors. Poor professional performance is defined by the Medical Practitioners Act 2007:

‘Poor professional performance, in relation to a medical practitioner, means a failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of any kind practised by the practitioner.’

In the above case the “FTPC” found the doctor to be guilty of professional misconduct. Any sanction to be imposed on a doctor’s registration is a matter for the Medical Council. The FTPC therefore referred its report to the Council which decided to cancel the practitioner’s registration pursuant to section 71(f) of the Medical Practitioners Act, 2007.

The above case is a somewhat extreme example of inappropriate behaviour on the part of a doctor, and not all cases will involve the added element of harassment which occurred in this case. In cases involving inappropriate examinations or the failure to address the chaperone issue which result in a finding of professional misconduct or poor professional performance the Council may decide to impose a condition on the practitioner’s registration. A condition of this nature may, for example, prohibit the doctor from carrying out physical examinations on a named gender without a chaperone. It is interesting to note that many cases involving inappropriate examinations will be argued on the basis of one person’s word against another and for this reason the presence of a chaperone or a record that the patient was offered the opportunity to elect to have a chaperone present is essential best practice.