Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

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:

1. …conducted a vaginal examination of the complainant … without wearing gloves; and
2. In the course of the examination the Doctor inappropriately manually stimulated the complainant’s clitoris and then later in the examination when placing the speculum in the vagina slid the instrument in and out of the vagina and manually stimulated her clitoris, without any clinical or medical justification; and
3. In the course of the examination the Doctor inappropriately asked the complainant if what he was doing ‘felt good’ or words to that effect.

An application was filed on behalf of the Doctor to have the charge struck out or stayed. The application was opposed by the CAC.

Finding:

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.

Specific Prejudice

In the Tribunal’s 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 complainant’s 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 witnesses’ memory have been impaired.

The Tribunal considered the recollection of the complainant’s 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.

General Prejudice

The Tribunal believed that the delays on the part of the complainant created general prejudice in relation to the Doctor’s 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 complainant’s 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:

• The complainant’s long delay in bringing this issue to the attention of the appropriate authorities created serious difficulties for the Doctor in defending the charge. The Tribunal considered it would be almost impossible for the Doctor to recall whether he did or did not wear gloves during the examination he performed on 6 January 1983.
• It would appear questions first arose about whether or not the Doctor wore gloves when conducting the vaginal examination when the complainant was interviewed by the CAC. The complainant did not appear to have specifically raised this issue in her letter of complaint. While this fact was not in itself determinative, it was a consideration the Tribunal took into account in assessing the overall prejudice which the Doctor would suffer.
• Whilst the Tribunal considered it was very important that medical practitioners wear gloves when conducting vaginal examinations, if the Doctor did not do so on this occasion then his omission would definitely not constitute disgraceful conduct in a professional respect.

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.