Examination anxiety: avoiding harassment claims

23 October 2018 | Harry McCay, BComm, LLB, Senior Solicitor, Avant Law, ACT

“It looked like being a routine consultation with a young woman who had an intermittent swallowing complaint that needed assessment. After taking a detailed history I explained that I would need to examine her neck, something I had done many times in my 20-plus years in medicine.

“Shortly into the examination she started having breathing difficulties which might have been an asthma attack. I reached for my stethoscope and said I was going to listen to her chest. Standing close, I did a normal four quadrant auscultation to assess what was happening and then examined her neck from behind.

“Nothing appeared too amiss and her breathing normalised. I completed my examination, provided a diagnosis and explained the treatment. The young woman left without comment.

“The following week I received a letter from the Medical Board wanting to take immediate action to suspend my registration due to an allegation of sexual misconduct. I was dumbfounded, shocked and in a state of disbelief. After decades of work with an impeccable record, a complaint had been made that threatened my career.

“I was given only four days to respond so immediately contacted Avant for help.”

Addressing the allegation

On receiving the call from our member and hearing the account above, we realised prompt action was required. Dr Jay* could face having his registration suspended for up to 18 months while the complaint was investigated, and we successfully argued against this.

The complainant alleged Dr Jay had touched her inappropriately by placing the stethoscope between her breasts and pushed himself up against her. As the local solicitor, I visited Dr Jay with the medical advisor to obtain a detailed account of the consultation and the situation. We also spoke with the practice manager and the receptionist, and took photos of the consulting room.

We sought a short extension from the Board to allow more time to respond to the allegations, which Dr Jay strenuously denied. In this time we obtained supporting information from a nurse, another specialist and a GP.

In providing a detailed written response to the Board within the timeframe, we ensured they had the right information when considering whether to suspend Dr Jay. By attending the Medical Board with Dr Jay, we were able to support him make his oral submission responding to the allegations and provided comments on the material gathered by the AHPRA investigator.

The investigation concluded there was insufficient evidence to substantiate the allegations made by the patient. The Board ultimately decided not to impose any sanctions and that no further action was required.

Case comment

Dr Peter Henderson, MB, Ch B., FRANZCOG, FRCOG, Senior Medical Advisor and Claims Manager, ACT

Since the publication last year of the Paterson Report into the use of chaperones, the Medical Board has become less likely to approve conditions involving the use of chaperones and, therefore, more likely to suspend a practitioner’s registration during the investigation stage. Our member’s untarnished career, and the likelihood that the young woman misconstrued pressure from medical equipment pushed against her as he examined her neck, suggested this was a case of a patient who perceived the examination to be inappropriate when it was in fact quite appropriate.

The medical and legal teams at Avant have a great deal of experience with cases similar to the one above, enabling us to quickly marshal local resources and respond. We also appreciate the focus which the Medical Board has on patient safety and the sort of material and submissions to put to a body such as the Medical Board, and those which are unlikely to be considered relevant.

Tips to avoid complaints like this

Helen Turnbull, BA, LLB, Special Counsel – Professional Conduct, Avant Law, NSW

  • Ask the patient if they would like someone else to be present, such as a friend or a nurse.
  • Be aware of the patient’s disposition – if the patient appears unusually nervous or anxious have a third party present, where possible.
  • If you feel uncomfortable for whatever reason do not proceed with the examination – you can say no
  • Consider how the patient might be feeling about what’s happening.
  • Talk to them about the examination beforehand, what will happen and why and gain their consent.
  • Continue to explain what you are doing as you examine the patient – ‘I will now…’
  • Make comprehensive medical records.

The Medical Board of Australia’s Sexual boundaries: Guidelines for doctors provides more comprehensive information to assist in avoiding complaints of this nature.

More information

Download our factsheets: Dealing with professional misconduct complaints or Connecting with patients

Complete our Active Learning Module: Communication and consent

This article was previously published in Connect Issue 10. 

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