|Additional Orders:||Doctor granted permanent name
Complainant granted permanent name suppression: 03107cfindings
Charge struck out: 03107cfindings
On 26 May 2003, a Complaints Assessment Committee charged the Doctor with disgraceful conduct in a professional respect. The particulars of the charge alleged that on 6 January 1983 the Doctor:
An application was filed on behalf of the Doctor to have the charge struck out or stayed. The application was opposed by the CAC.
The Tribunal ordered that the first particular be struck out on the grounds of general prejudice, and that the second and third particulars be struck out on the grounds of specific prejudice.
In the Tribunalís view there was one crucial matter which strongly suggested the Doctor would suffer specific prejudice in trying to defend the second and third particulars of the charge. The event which raised a serious issue of specific prejudice was the fact the complainantís mother was dead and could no longer provide crucial evidence about key matters.
The Tribunal considered the fact the Doctor, and four other witnesses may have difficulty in recalling events said to have occurred 20 years ago were not factors which satisfied the criteria for specific prejudice when considering an interlocutory application to strike out/stay the charge. Before the Tribunal could be satisfied that the witnesses in question do not have an ability to recall specific matters the witnesses would need to give evidence to the Tribunal. The Tribunal would then be able to assess the extent (if any) to which the witnessesí memory have been impaired.
The Tribunal considered the recollection of the complainantís mother of what the complainant said immediately after the consultation on 6 January 1983, and her understanding of the discussions held with another doctor on 7 January 1983 would be crucial in assisting the Tribunal determining the second and third particulars of the charge. Similarly, the Tribunal considered her evidence, if it could have been obtained, may have been very significant in assisting the Doctor defend the charge. As she was no longer alive, the Tribunal was satisfied there was a serious risk of prejudice to the Doctor.
The Tribunal believed that the delays on the part of the complainant created general prejudice in relation to the Doctorís ability to defend the first particular of the charge.
The first particular was not struck out by the Tribunal on the grounds of specific prejudice because there was no suggestion the complainantís mother could have provided any assistance in determining whether or not the Doctor conducted the vaginal examination on 6 January 1983 without wearing gloves.
In striking out the first particular of the charge on the grounds of general prejudice the Tribunal was conscious that it should be extremely cautious before invoking its jurisdiction to strike out a charge on this ground. The reasons why the Tribunal invoked its jurisdiction to strike out the first particular of the charge on the grounds of general prejudice were:
Reasons for Delay
The Tribunal believed it important to convey to the complainant that it understood the reasons why she delayed complaining to the Police and the Medical Council. The Tribunal sympathised with the complainant and appreciated that it is not an easy matter for any woman to raise issues of alleged sexual abuse. The Tribunal wished to make it clear the fact the charge was struck out should not be construed as a criticism of the complainant. The charge was struck out without the Tribunal reaching any conclusions about the facts.