Louise Sweet QC “Safeguarding, chaperones, and sexual allegations”

In February 2020, the general practitioner Manesh Shah, received three life sentences for sexually assaulting his patients. The assaults involved carrying out “invasive examinations for his own gratification.” [1] Shah also breached General Medical Council (GMC) guidelines on the use of chaperones during intimate examinations. He was found guilty of a total of 90 sexual offences.

Shocking as this is, fortunately, doctors who cross their professional boundaries in this way are rare, though each one brings shame not just to the individual doctor, but vicariously to the whole profession. Violations undermine the trust patients have in health professionals and can cause psychological harm, compromising ongoing medical care long into the future. It breaks a founding ethical principle of medicine, dating back to the Hippocratic Oath. Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free. Hippocratic Oath, 274 AD.

It is difficult to know how many doctors have crossed a sexual boundary as they are unlikely to self disclose. The experience of the courts as well as studies show patients are reluctant to come forward, due to embarrassment, fear, or even misplaced loyalty towards the doctor. [2] Studies give a wide range; between 0.2% and 10%, of doctors admitting to a sexual relationship with a patient and around 1.6% are sanctioned. [3] These doctors are more likely to work in general practice, psychiatry, and obstetrics and gynaecology, reflecting the greater likelihood of physical contact and/or psychological intimacy.

A striking feature of the literature into sexual boundary violations is the absence of “red flags,” meaning doctors had no special features which could be identified through screening tests or involved patients who were vulnerable as well as those who were not. [4] There are some consistent factors, however. Almost all are older male doctors, not board certified [this was an American study], and not in senior consultant positions or were in non-academic medical work settings. These five common variables accounted for over 70% of all cases, and the vast majority of individuals with all five do not commit sexual boundary violations.

While the use of a chaperone cannot prevent a doctor who is determined to abuse their patient, through for example, conducting an intimate examination when none is required, or gaining sexual gratification from the process, the presence a chaperone would reduce the risk. No less importantly, the presence of a chaperone similarly reduces the risk of a false sexual allegation, whether they be motivated by malice or misunderstanding.

All medical consultations, examinations, and investigations are potentially distressing and intrusive. This is the case for both male and female patients and whether or not the examiner is of the same gender. Consultations involving dimmed lights, the need for patients to undress, or for intensive periods of being touched may make a patient feel vulnerable. An appropriately carried out examination may be misinterpreted as sexualised by a patient who has no medical training and little understanding of the purpose behind the examination.

The presence of a chaperone therefore protects both clinician and patient.

The use of chaperones has changed considerably over the last forty years. A survey of male GPs in 1983 found only 13 per cent always used one and 25 per cent said they never did. Reasons given for non use included inconvenience and habit. Many of the doctors said they felt the presence of a third party would be detrimental to the doctor-patient relationship though just as many said they believed the chaperone’s presence would be beneficial. [5]

Times have changed. Since 1996 the GMC issued guidance for conducting intimate examinations, and Care Quality Commission (CQC) inspects against the requirement to offer, record, and use chaperones during their inspections.

Current GMC guidance provides the following advice [6]:

When you carry out an intimate examination, you should offer the patient the option of having an impartial observer (a chaperone) present wherever possible. This applies whether or not you are the same gender as the patient. A chaperone should usually be a health professional and you must be satisfied that the chaperone will: be sensitive and respect the patient’s dignity and confidentiality, reassure the patient if they show signs of distress or discomfort, be familiar with the procedures involved in a routine intimate examination, stay for the whole examination and be able to see what the doctor is doing, if practical, be prepared to raise concerns if concerned about the doctor’s behaviour or action. A relative or friend of the patient is not an impartial observer and so would not usually be a suitable chaperone, but you should comply with a reasonable request to have such a person present as well as a chaperone.

The guidance suggests the chaperone is there to support the patient, to bear witness to the examination and ensure that it is done appropriately. These multiple roles are not always possible nor practical. In reality, the only way a chaperone can truly determine whether the doctor/nurse is carrying out a proper examination is to be close to the examiner (so if a cervical smear is being done, the individual needs to be behind the shoulder of the doctor, bent down to have eye line of the genitalia).

There is also the wider issue of whether a chaperone needs to be competent to not just observe the procedure in question, but also to ensure it is appropriate given the clinical scenario. This would require the health professional to discuss ahead their reasons why the examination is required and for the chaperone to have the skills, knowledge, and expertise to determine whether it was needed. This is a big ask.

Common sense would dictate that, in most cases, it is not appropriate for a non-clinical member of staff to comment on the appropriateness of the procedure or examination, nor would they feel able to do so. Most guidance also presupposes that there will be a pre-planned examination in an outpatient consulting room or GP surgery, with sufficient space for an observer (or two) and where “spare” staff are available.

Guidance makes no reference to urgent or emergency situations, or, as in general practice, where it is unusual to know ahead why the patient is attending or whether an intimate examination might be required. Interrupting a busy practice nurse or health care assistant (who have their own booked clinics) to observe a GP may cause long delays. Furthermore, GPs carry out home visits and might need to examine a patient where no one else is present. Even if a relative were available it is not always possible, or indeed appropriate, to ask them to remain. Doctors, nurses, physiotherapists and many other healthcare professionals consult with patients at all times, day and night. Their care may well require examination of genitalia, breasts or rectum. The paediatrician called urgently to the ward to examine the testes of a child with abdominal pain, the accident and emergency doctor examining his female patients’ chest for possible pneumonia, the night nurse tending to the post caesarean woman, the surgeon reviewing his patient’s postoperative breast operation are all unlikely to be accompanied by another health professional. The system could become paralysed if each had to wait for another to bear witness.

It is important that we have a practical chaperone policy in healthcare, one that protects both the doctor and the patient. Patients, in the main want chaperones to “hold their hand” during an embarrassing or uncomfortable examination. Healthcare professionals want to provide evidence (if it is needed) that they are conducting themselves appropriately and responsibility. There are tensions with a busy clinical practice. Perhaps one solution is virtual chaperones? Using digital recording and body webcams to provide a record of the consultation. This creates its own issues of intrusion, safe storage, and agreements made on the lifespan for keeping recordings to grapple with.

Good practice will always find a clinician will go back to basics. To be ever conscious of patient discomfort that is inevitably provoked by an (appropriate) intimate examination. To make sure patients are provided adequate information as to why the examination or procedure is required, and that the clinician provides careful and sympathetic explanation as to what they are doing. We need to respect the patient’s wishes to have someone present during the consultation, and ensure a chaperone is routinely present unless there is good reason for one not being there. Reasons for absence must be properly documented. [7] In the modern climate of clinical practice this is what the regulator expects. The absence of a chaperone for an intimate examination, without good reason, in the face of a sexual allegation will reflect adversely on the clinician. Proven sexual allegations lead to inevitable erasure from the register or in a criminal context, as a gross breach of trust, demands immediate and lengthy imprisonment. [8,9] They cause incalculable damage to the reputation of the medical professional as a whole.

Safeguarding the patient safeguards the doctor: their reputation, their practice, and may even safeguard the doctor from the very worst to contemplate, criminal allegations.

Article jointly written by Louise Sweet QC and Dr Clare Gerada.

References:

1. Sentencing remarks of Judge Anne Molyneux QC. The Old Bailey 7 February 2020
2. Galletly C. Crossing professional boundaries in medicine: the slippery slope to patient sexual exploitation. Medical Journal of Australia. 2004;181(7):380-383.
3. Sansone, RA. Sansone LA. Crossing the Line Sexual Boundary Violations by Physicians. For more, see NCBI article.
4. James M. DuBois JM, Heidi A. Walsh HA, Chibnall JT, Anderson EE, Eggers MR, Fowose M, and Ziobrowski H Sexual Violation of Patients by Physicians: A Mixed-Methods, Exploratory Analysis of 101 Cases Sexual Abuse 2019, Vol. 31(5) 503–523
5. For more, see the BJGP article.
6. For more, see the GMC article.
7. Good Medical Practice ‘Intimate examination and Chaperones’ 2013 reads “You should record any discussion about chaperones and the outcome in the patient’s medical record”
8. Sanctions Guidance 2018 s109 f identifies “offences of a sexual nature” as justifying immediate erasure from the register
9. Abuse of trust is always an aggravating factor for sexual offences that places sentence in a higher category imposing lengthier sentences. For more, see Sentencing Council guidelines.


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Barrister Louise Sweet

Louise Sweet QC

Silk: 2016

Call: 1994