Findings

Charge Characteristics

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Precis

Charge:  

A Complaints Assessment Committee charged that the Doctor was guilty of disgraceful conduct in that during a consultation with a patient he:

1. Failed to provide an explanation to the patient as to why he performed a number of internal examinations on her and failed to take account of and be sensitive to the distress that such examinations were causing her; and/or
2. Performed a final internal examination which was unnecessary and for which there was no reasonable medical justification; and/or
3. Performed the final internal examination in such a way that the patient's clitoris was stimulated for which there was no medical justification; and/or
4. Subsequently failed to ensure the confidentiality of patient details including the patient's name and address.

Background: 

On 9 September 1998 the patient attended an accident/medical clinic as her own GP was unavailable at a time that was convenient to her. The patient had been feeling unwell for approximately one month and, by the date of the consultation had lumps in her groin and armpits as well as a headache. She had recently completed a course of antibiotics prescribed by her GP.

The details of the history-taking and reporting were contested. The doctor stated that he gained the impression that the patient was sexually active. However, the patient was adamant that she made it quite clear from the outset that she had never had sexual intercourse.

After taking the patient's history the Doctor proceeded to a physical examination of the patient. There were effectively, three stages to the physical examination. At the first stage of the examination the Doctor examined the patient's arms, neck and axilla area. The Doctor asked the patient to undress for this part of the examination. The Doctor examined the patient's breasts, apparently to check for any abnormal pathology, or signs of infection or cancer. The Doctor then examined the patient's groin area where he detected enlarged and tender multiple lymph-nodes on both sides of the patient's groin.

It was the patient's evidence that the Doctor then looked at her vagina and felt between her legs. The patient alleged that the Doctor moved her underpants to one side and inserted his finger into her vagina without warning her that he intended to do an internal examination. The patient further asserted that the Doctor told her that he could not see any genital warts. It was the Doctor's evidence that during this stage of the examination he did not touch or insert his finger into the patient's vagina. He denied that he would have stated at this point that he did not see any genital warts as he did not undertake any inspection of the patient's genital area until later in the examination.

The Doctor then told the patient that it was necessary to perform a pelvic examination. The Doctor said, as he believed that the patient was sexually active, such examination was necessary to examine her for any STDs or cancer. The Doctor asked the patient whether she had had such an examination before, and she told him that she had not. The Doctor said that he explained to the patient that the examination would involve a digital internal examination as well as taking a smear. It was the Doctor's evidence that he did not detect any concern on the patient's part about his carrying out such an examination and, if he had done so, he would not have proceeded without further explaining or clarifying what was involved.

The Doctor left the consultation room and asked a nurse to attend the examination as a chaperone and to assist him. This stage of the consultation was referred to at the hearing as 'the second stage' of the examination. The nurse provided the Doctor with a medium sized speculum and lubricating jelly. However, the Doctor had some difficulty inserting the speculum and asked the nurse to get a smaller one. The Doctor had difficulty inserting the smaller speculum. At this point the Doctor again asked the patient whether she had had sex before and to which she responded that she had not. He asked the patient whether she was a virgin and she said that she was. The Doctor then took two "blind" swabs by taking vaginal wall swabs.

It was the Doctor's evidence that, while writing his findings and labelling the swabs, the patient spontaneously volunteered the information that while she had not had sexual intercourse, she had slept with her boyfriend and that she had had some penile contact short of penetration. The Doctor said that, as a result of this information, it was necessary for him to complete the pelvic/internal examination, that he had abandoned after the unsuccessful attempt to carry out a speculum examination, for the purposes of excluding an STD as the cause of the lymphadenopathy.

This evidence was disputed by the patient. She said that she did not volunteer this information but that while she was putting her clothes back on after 'the second stage' of the examination she was interrupted by the Doctor and asked to remove her jeans and get back onto the examination table.

It was alleged that the Doctor failed to wear gloves for the internal examination. The Doctor denied this allegation. The patient also alleged that while he was examining her the Doctor rubbed her clitoris in a way that felt as if he was trying to arouse her. This allegation was denied by the Doctor although he did accept that because of the way in which he carried out the examination it was possible that he may have touched the patient's clitoris inadvertently.

The Doctor stated that when he heard, the next day, that there had been a complaint he was completely surprised and astonished. He received the telephone call at his home and immediately told his wife of the complaint. The Doctor returned to work and ascertained the identity of the patient who had made the complaint. The following evening the Doctor's wife went to the patient's house and tried to speak to the patient. The patient was not at home at the time and the Doctor's wife spoke to the patient's mother.

Both the Doctor and his wife gave evidence that the Doctor did not know that his wife was going to visit the patient's residence. It was the Doctor's wife's evidence that once she was told who the patient was she obtained her address from the telephone book. It was her evidence that she did not see the patient's medical notes at any time.

Finding:

The Tribunal found the Doctor guilty of conduct unbecoming and that conduct reflected adversely on his fitness to practise medicine.

When considering Particular 1 the Tribunal was satisfied that, while the Doctor's explanation to the patient as to why he was performing the examinations which he did may have left much to be desired in the circumstances, it was not satisfied that the Doctor failed to provide "an explanation" to the patient.

The Tribunal found that the evidence given by both the patient and the Doctor was consistent in so far as the patient did not disclose the distress that was caused to her by the examination in the course of the consultation. It found that the patient was very distressed by the examinations; that her distress was genuine, and that she made her distress known to her parents immediately afterwards. However, the Tribunal considered that it could not find the Doctor guilty of failing to take account of, and be sensitive to, distress that does not appear to have been disclosed to him. Therefore, the Tribunal found that Particular 1 was not established.

When considering Particular 2, the Tribunal was satisfied that while virtually all of the examinations conducted by the Doctor, including the breast examination, the failed speculum examination and the 'final internal examination' were clinically unwarranted on the basis of the patient's presenting symptoms and the circumstances of the consultation, the final internal examination was certainly unnecessary and there was no reasonable medical justification for undertaking that examination.

However, the Tribunal was also of the view that the Doctor's conduct in carrying out the final internal examination was conduct that reflected a lack of confidence and/or competence on the part of the Doctor, rather than sexual or moral impropriety.

By the time of the 'third stage' of the examination, the Doctor had already thoroughly examined the patient and, if he was concerned about the possibility of an STD, the Tribunal considered he could have pursued that inquiry without conducting another internal examination. In addition, the patient could have been referred to her own GP for any further examinations which the Doctor considered were necessary. Therefore, the Tribunal found that Particular 2 was established.

In relation to Particular 3, the Tribunal's finding reflected its overall finding that the Doctor's examinations of the patient were not conducted for sexual gratification, or were prurient, but rather reflected the Doctor's 'textbook' approach to the patient's presenting symptoms. The Tribunal found that any touching of the clitoris in the course of the final internal examination was inadvertent, and therefore, Particular 3 was not established.

The Tribunal, when considering Particular 4, accepted that any person in the Doctor's position would reasonably tell his or her spouse about the complaint. Having relayed that information to his wife at the time, the Tribunal considered it is equally understandable, having ascertained which patient it was who made the complaint, he might also discuss that with his wife.

The Tribunal was satisfied that the Doctor's disclosures were limited and they did not cause the patient any particular prejudice or harm. On that basis, while the Particular was established in a very narrow way, the Tribunal found that it did not warrant the sanction of an adverse finding in relation to this aspect of the charge.

The Tribunal came to the conclusion that, given its finding as to the absence of any sexual misconduct or prurient intent, and because only one of the four particulars of the charge was established, the Doctor was guilty of conduct unbecoming and that reflects adversely on his fitness to practise. The Tribunal recorded that it considered that the Doctor's conduct fell on the 'borderline' of professional misconduct and conduct unbecoming that reflects adversely on his fitness to practise medicine. The Tribunal also recorded that, in this present case, it considered that the so called 'rider' to conduct unbecoming was particularly applicable.

Penalty:

The Tribunal ordered that the Doctor be censured, fined $500, and that for 2 years he is only to practise medicine under the following conditions:

1. he receive supervision, advice and assistance from an Educational Supervisor appointed by the Medical Council of New Zealand to the satisfaction of the Council;
2. he is to participate in regular peer review of his practice to the satisfaction of the Medical Council and/or his Educational Supervisor for a period of not less than 2 years;
3. he meet the cost of the Educational Supervisor; and
4. that a report be given to the Tribunal at six monthly intervals to ensure the Tribunal is aware of progress and that the supervision by the Educational Supervisor is being undertaken.

The Tribunal further ordered a notice of the hearing be published in the New Zealand Medical Journal.