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  Decision No: 01/84C
Practitioner: Dr Beris Ford
Characteristics of Charges : Inappropriate examination
Lack of informed consent
Inappropriate assistance with clothing
Inappropriate request to remove clothing
Inappropriate communication
Additional Orders: Denied application to permanently stay three charges.
Application granted to permanently stay two charges: 
00610184cfindingsstaylaw
Complainants granted permanent name suppression:
00610184cfindingsstayadd
Decision: 00610184cfindings
Penalty Decision: 00610184cfindingssup
Appeal: CAC appealed Decision - appeal upheld in respect of charge relating to Ms D and Mrs S - referred matter back to the Tribunal in respect of charge relating to Ms W (CAC v Dr B Ford (District Court, Wellington, MA 103/02, 1 May 2003, Thompson DCJ))
Addendum to Decision: 0184cfindingsadd

Please also see 00/61C (one other charge against Dr Ford which was heard at the same time as the four charges below)

Charge:  

A Complaints Assessment Committee laid four charges against Dr Ford. The charges were laid at the level of professional misconduct (Ms D and Ms W) and conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner's fitness to practise medicine (Ms R and Mrs S).

Ms D:

Charge

The particulars were as follows:

  1. When Ms D was presenting with a persistent sore throat Dr Ford performed a breast examination which was inappropriate and unnecessary.
  2. At the end of the examination he watched as she undressed and assisted to do up her bra.
  3. In telling Ms D that she would have to have a breast examination given the symptoms with which she presented, he did not obtain her informed consent for that examination.

Background

It was the patient's evidence that this was the only occasion on which she saw Dr Ford and that she went to see him for a sore throat. At the time of the consultation she was 18 years old and went to see Dr Ford because she was living in Whangarei at the time and her own GP was some distance away.

Finding

The Tribunal found Dr Ford guilty of conduct unbecoming a medical practitioner and that conduct reflects adversely on his fitness to practise medicine.

The Tribunal was satisfied Particular 1 was established and on its own warranted sanction. The Tribunal considered that, notwithstanding the then current practice of conducting opportunistic examinations in some cases, the carrying out of breast examinations in the circumstances of Ms D's consultation was inappropriate and unnecessary; it was not warranted as an opportunistic examination, it was not requested, Ms D was not a regular patient, no explanation was given, and Dr Ford was not involved in her gynaecological care.

When considering Particulars 2 and 3 the Tribunal was satisfied that they were not established. The Tribunal's finding in relation to Particular 2 was unanimous. In relation to Particular 3, the finding was a finding of the majority of the Tribunal members.

In relation to Particular 2, Dr Ford conceded that he may assist a patient to dress if she was having difficulty, particularly if the patient was elderly for example and the Tribunal considered it extremely difficult to make a finding adverse to Dr Ford in relation to such assistance, which he may or may not have provided to Ms D some 18 years ago. The Tribunal was satisfied it would be unsafe to make any finding adverse to Dr Ford in circumstances where he does not recall the consultation in any detail and his motives for offering such assistance as is now complained of, may have been quite innocent.

The majority of the Tribunal also applied that reasoning in relation to Particular 3, particularly in the circumstances that present in relation to this charge. All of the medical practitioners who gave evidence at the hearing acknowledged that accepted practice in relation to the giving of information to patients, and obtaining their consent to carry out examinations, is now very different to practices which were acceptable in 1984. It was the minority view (two Tribunal members) that what was at issue in relation to Particular 3 was not so much the giving of information about risks, or the duty to inform the patient or draw to their attention some danger or risk which may be inherent in the care and/or treatment offered. Rather, the allegation was that Dr Ford offered no explanation at all prior to carrying out an intimate examination on a young woman who:

  1. was not a regular patient;
  2. with whom he did not have an established doctor/patient relationship;
  3. without a chaperone;
  4. without giving her any explanation; and
  5. which the Tribunal is satisfied was unnecessary and inappropriate.

The minority considered on that basis, the 1984 standards against which Dr Ford's conduct should be judged were not so significantly different to those which are currently accepted. It was, therefore, the minority view that Dr Ford's conduct in this regard fell below the standards reasonably expected of an experienced general practitioner.

Please see Appeal section below for further information on this charge.

 

Ms W:

Charge

The particulars were as follows:

  1. Dr Ford performed an unnecessary and inappropriate breast examination on Ms W who was then aged 16 who had consulted him for a prescription for the contraceptive pill.
  2. During the examination Dr Ford made an inappropriate comment that "a nipple would become erect in this way if it was aroused" or words to that effect.

Background

Ms W saw Dr Ford only once when she was about 16 years old. At that time she wanted to go on the contraceptive pill and because she was afraid that her family doctor would tell her parents that she was on the pill, she went to see Dr Ford.

Finding

The Tribunal was satisfied that the particulars of the charge were established but, overall, the charge was not established.

The Tribunal considered the professional standards against which Dr Ford must be judged were those which were accepted at the time of the events giving rise to the charge. The Tribunal accepted that it was considered good practice for all women to have a breast examination and an internal examination when the oral contraceptive pill was prescribed.

The Tribunal was satisfied that Dr Ford did carry out the breast examination and he did make the comment alleged in Particular 2, and that both particulars were established. However, the Tribunal was not satisfied that the established particulars warranted the sanction of an adverse finding.

Please see Appeal and Addendum to Decision sections below for further information on this charge.

 

Ms R:

Charge

The particulars of the charge were as follows:

  1. When Ms R presented with a sore throat Dr Ford required her to take off all her clothes apart from her underpants which was both inappropriate and unnecessary.
  2. After performing an examination and Ms R had dressed, Dr Ford commented that "she was developing nicely" or words to that effect.

Background

Ms R was 16 years old when she consulted Dr Ford on the occasion giving rise to the charge. At that time he was her family doctor but this was the first occasion on which she visited Dr Ford on her own. Previously she had been accompanied by her mother. Ms R went to see Dr Ford because she had a sore throat.

In the course of the consultation Dr Ford asked her to take her clothes off so he could examine her. Ms R was wearing her school uniform at the time and she was shocked and embarrassed by Dr Ford's instruction. She did not know why she needed to take off her clothes for a sore throat but was too shy and embarrassed to object. Dr Ford did not offer any explanation, nor did he offer her any privacy. Ms R lay on the examination bed for the examination, during which time she was fully exposed to Dr Ford being clothed only in her underpants. In carrying out the examination Dr Ford checked the glands under Ms R's arm but did not examine her throat in any way or carry out any other examination. As she was getting dressed he made the comment that she was "developing nicely". Ms R never returned to see Dr Ford.

Finding

The majority of the Tribunal were satisfied that Dr Ford was guilty of conduct unbecoming a medical practitioner and that conduct reflects adversely on his fitness to practise medicine. One member of the Tribunal departed from the majority because, notwithstanding that he was satisfied that the factual basis of the charge was established and that Dr Ford's conduct towards Ms R was inappropriate, he was not satisfied that the threshold for a professional disciplinary offence was reached.

The Tribunal was satisfied both particulars were established and that Dr Ford's conduct towards Ms R was insensitive, and, given her symptoms unnecessary and inappropriate. The Tribunal considered, even in 1984, patients especially young, vulnerable, female patients were entitled to have their privacy and particular needs respected.

 

Mrs S:

Charge

  1. When Mrs S was presenting with ear pain Dr Ford asked inappropriate and unnecessary questions about her sex life "so you enjoy sex then" or words to that effect.
  2. Against the patient's wishes Dr Ford insisted on carrying out an examination for melanoma which required her to undress the top half of her body. In the context of a consultation for ear infection this examination was unnecessary and inappropriate.
  3. In carrying out this examination Dr Ford failed to obtain the patient's informed consent.

Background

Mrs S went to see Dr Ford with ear pain. Dr Ford checked her ears and said they both seemed fine. He suggested that she should see a dentist for a dental examination and she agreed.

Dr Ford then proceeded to ask questions of a more general and sexual nature, particularly about her late husband and they discussed his death from melanoma. Mrs S alleged that Dr Ford insisted in carrying out an examination for melanoma although this was against her wishes. Dr Ford's nurse came in to the consultation room as a chaperone during the examination.

Finding

The Tribunal found Dr Ford guilty of conduct unbecoming a medical practitioner and that conduct reflects adversely on his fitness to practise medicine.

When considering Particular 1, the Tribunal was satisfied that Dr Ford did make the alleged comments and that they were inappropriate and offensive.

In relation to Particulars 2 and 3, Dr Ford was adamant that he carried out a chest examination and listened to her heart and lungs because she had complained of a cough and dizziness. He claimed Mrs S misunderstood the whole purpose of the examination of her chest.

The Tribunal was satisfied that although the factual basis of the particulars was established, it was not able to determine, to a requisite standard of proof, that the examination was "unnecessary and inappropriate". Given that Mrs S complied with Dr Ford's instruction to disrobe and to get on to the examination table, the majority of the Tribunal members were not satisfied that Dr Ford failed to obtain Mrs S's proper informed consent prior to carrying out the examination. Two Tribunal members departed from the majority. The minority considered that, notwithstanding the examination occurred in 1999, some 15 years after Ms D's consultation, the Tribunal was satisfied that Dr Ford did not offer Mrs S any explanation for the examination, or, especially, for requiring Mrs S to remove her bra. It is the minority view that, while Mrs S acquiesced and permitted Dr Ford to examine her, she did not give her "informed consent". The minority members considered there is a difference between "consent" and mere acquiescence. Mrs S could not give her "informed consent" because she was given no "information" about the reason for the examination, or why it was necessary to take her bra off.

Please see Appeal section below for further information on this charge.

 

Overall Finding in relation to all four charges:

The charges laid against Dr Ford in relation to Ms D, Ms R and Mrs S were established and, in respect of each of those charges, Dr Ford was guilty of conduct unbecoming and that reflects adversely on his fitness to practise.

The charge laid against Dr Ford in relation to Ms W was not upheld and the Tribunal was satisfied that Dr Ford is not guilty of the charge notwithstanding that certain of the particulars of that charge were established.

 

Penalty:

The Tribunal ordered as follows:

  1. Dr Ford be censured in relation to each of the three established charges.
  2. Dr Ford to pay fines in the following amounts:
  1. as to the charge concerning Ms D: $450.00 (maximum $1,000);
  2. as to the charge concerning Ms R: $600.00 (maximum $1,000);
  3. as to the charge concerning Mrs S: $2,000.00 (maximum $20,000).
  1. For a period not exceeding three years from the date of the penalty decision, Dr Ford is to practise medicine only in accordance with the conditions set out below:
  • Dr Ford is required to have a chaperone present for all intimate examinations undertaken on female patients and is to ensure that the entitlement all patients have to have a chaperone or support person present during consultations if they wish, is notified to them by means of a notice to that effect in the reception area and all consultation rooms used by him at his practice rooms, and any after hours practice or medical centre attended by him.
  • Dr Ford is to provide an explanation of the purpose of the examination to the patient concerned in the presence of the chaperone or support person;
  • Except in an emergency situation, in the event that a female patient declines a chaperone and/or a support person to be present, or no appropriate person is available or willing to act in this capacity, then Dr Ford is to refer the patient to another practitioner. That is, the intent of these conditions is that Dr Ford is not to perform intimate examinations on female patients in the absence of either a chaperone provided by him, or a support person whom the patient requests to accompany her, for example, a parent, friend, partner or spouse;
  • Dr Ford is to be referred to the Medical Council's Health Committee for assessment and such assistance as the Committee may consider necessary;
  • Dr Ford is not permitted to undertake any teaching in general practice, either to his peers or junior practitioners. The Tribunal is satisfied that given the nature and circumstances of his offending, it is not appropriate for him to be undertaking such a role in a professional context.
  1. Dr Ford to pay costs in the sum of $36,769.87.
  2. Dr Ford to be referred to the Medical Council's Sexual Misconduct Assessment Team to undergo evaluation and any subsequent counselling, treatment and/or monitoring that the Team may consider necessary and appropriate. Any report of the Sexual Misconduct Assessment Team to be referred to the Medical Council's Health Committee for such assistance as the Committee may consider necessary.
  3. A report of the Tribunal's Substantive Decision and the Penalty Decision is to be published in the New Zealand Medical Journal.

 

Appeal:

The CAC appealed the Tribunal Decision in respect of the charges relating to Mrs S, Ms D and Ms W.

The District Court upheld the appeal in respect of charges relating to Mrs S and Ms D.  Judge Thompson DCJ found that there was no informed consent and agreed with the minority of the Tribunal that Particular 3 was established in both charges.  There was however, no alteration made to the overall findings and the charges were upheld at the level of conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioners fitness to practise medicine.

In respect of the charge relating to Ms W the judge referred the matter back to the Tribunal to clarify its findings of fact.  If the Tribunal meant that both Particulars were established, he invited the Tribunal to reconsider its decision that there be no adverse finding in relation to this charge.  (CAC v Dr Ford (District Court, Wellington, MA 103/02, 1 May 2003, Thompson DCJ)).

 

Addendum to Decision:

The Tribunal clarified that it was satisfied that:

  1. Dr Ford did examine Ms Ws breasts when she consulted him for a prescription for the contraceptive pill;
  2. Ms W was a credible witness;
  3. Dr Ford did make the inappropriate comment complained of by Ms W.

However, in the context of that consultation and on the basis of the evidence given by the expert witnesses, the Tribunal was not satisfied that its findings of fact warranted the sanction of an adverse finding.