Examination of patients is essential to a clinician's role, including intimate examinations, and examinations of vulnerable patients. Examinations are routine for clinicians, but many patients are unfamiliar with the process, and can find them distressing. The GMC's Good Medical Practice states at 47 "You must treat patients as individuals and respect their dignity and privacy", and appropriate use of chaperones can help achieve that.

Chaperones are also an aspect of risk management. While sadly there are clinicians who violate a patient's trust during an examination, there are also patients who will make unmeritorious allegations against an innocent clinician. Regardless of whether the patient has genuinely misinterpreted an innocent action, or is maliciously making a false allegation for gain, the presence of a reliable witness can be valuable protection for clinicians.

Incision members have access to detailed written guidance materials on this important topic, and this article contains extracts. Incision members also have access to a 24/7 medico-legal/notifications helpline so that they always have access to guidance on individual incidents, or tailored guidance for their specific practice.

What is the key guidance?

The key guidance is in the GMC's 2013 guidance note "Intimate examinations and chaperones" Intimate examinations and chaperones (gmc-uk.org). But what about video or other remote consultations, given the significant increase in remote consultations in recent years? NHS England published, "Key principles for intimate clinical assessments undertaken remotely in response to COVID-19" key_principles_for_intimate_clinical_assessments_undertaken_remotely_in_response_to_covid19_v1-(1).pdf (gmc-uk.org)  It recommends that you should update your chaperone and safeguarding policies to include remote consultations, and confirms that the GMC guidance applies to video consultations. It also addresses some practicalities by commenting, "a chaperone could be present with the practitioner (either virtually or in the same room) [to] witness the nature and extent of the video examination that was undertaken. The chaperone should be visible to the patient."  Also, "if a chaperone is not available (for example because you are remote working) or declined by the patient, use your professional judgement and carefully consider whether a remote examination method should proceed."

The CQC's guidance is within their guidance on GPs, but much it would apply equally to clinicians - GP mythbuster 15: Chaperones | Care Quality Commission (cqc.org.uk). This highlights the importance of chaperones receiving the right training, and that non-clinical staff who carry out chaperone duties, "may need a DBS [Disclosure and Barring Service] check".

Clinicians who only examine patients in private clinics or hospitals managed by others (independent clinicians with practising privileges) should familiarise themselves with the chaperone policy in each hospital or clinic they work at, and know which staff can be available to fulfil that role. Clinicians who examine patients in their own clinics, and Clinic managers, will be responsible for ensuring that their clinic has a robust chaperone policy, including clear and timely communication to patients that they are entitled to one.  The clinician or Clinic manager will also need to ensure that there are suitable people in the clinic with the training to be able to carry out the role, and for making sure that the chaperone is ‘impartial’ and empowered to speak up on the patient’s behalf."  In the very last paragraph of the article amend the penultimate sentence to read, "Such an allegation can lead to police investigations or GMC investigations (for GMC-regulated clinicians), and potentially CQC investigations into Clinics.

Plain English?

Is the word "chaperone" in the healthcare context is overdue for a 21st century plain English overhaul? Is this somewhat antiquated word always understood by patients? Would "Dignity and Safeguarding Attendant" better describe this vital role? Let us know about any alternative phrases coming into use, or your own suggestions!

What about insurance?

The presence of a chaperone cannot necessarily prevent an allegation of inappropriate behaviour or assault, but their witness evidence should make it much easier for the clinician to prove their version of events. Such an allegation can lead to police investigations or GMC investigations. The Incision policies contain cover for the cost of legal advice and representation in police or GMC investigations, and all clinicians should check that they have this vital type of cover.

Nobody likes to contemplate the possibility of being subject to a police investigation. The thought of an arrest or police involvement might be particularly worrying for surgeons or doctors, because they have their personal and professional reputation and their GMC registration to protect. An alleged criminal act can potentially result in multiple jeopardy for a surgeon or a doctor. The criminal allegation could lead to a GMC investigation, regardless of whether the alleged incident was in the surgeon/doctor's private life, NHS practice or private practice.  If the alleged criminal incident involves a patient's death, then there would likely be an Inquest. The alleged criminal incident can also give rise to a civil claim for compensation, as most criminal acts are also a breach of the civil law. If a police investigation proceeds to a full criminal trial, then the worst-case scenario is imprisonment for the surgeon, which would in turn very likely result in their removal from the GMC Medical Register and the effective end of the surgeon's career.

Few police investigations get as far as a full trial, but even at the earliest stages, surgeons/doctors can find police investigations incredibly stressful.  Therefore, Incision has produced this guide to give Incision members an overview of the earliest stage of the police investigation process, to demystify it and also to highlight how the Incision insurance policies and the Incision medico-legal helpline can assist you.

Overview of the initial stages of a Police investigation

What can lead to a Police investigation?

Anyone can report a potentially criminal act to the Police, on an urgent (999) or non-urgent (101 and various other routes) basis. Therefore, a Police investigation could be triggered by a report from a private individual, or a colleague or other individual health professional or sometimes the management of a clinic or hospital after investigating an incident themselves.

It is not possible to list out every potential criminal allegation that could be made against a surgeon/doctor, arising out of their private and professional lives, especially if you include road traffic offences. But in our experience the types of criminal investigation that a surgeon might be subject to include the following:

• Gross negligent manslaughter – where the patient died and it is alleged that this was due to extremely gross negligence on the part of the surgeon/doctor;
• Sexual assault – this category could encompass alleged rape (e.g., where a doctor thought he was having a consensual sexual relationship with a patient) through to alleged sexual touching during a clinical examination;
• Theft – for example of clinical equipment, restricted drugs or even patients' belongings;
• Possession and/or consumption and/or supply of illegal/recreational drugs;
• Road traffic offences involving dangerous driving or driving under the influence of drugs or alcohol.
• Actual Bodily Harm or Grievous Bodily Harm, assault or being drunk and disorderly – for example at or after a social event.

How will you know that an investigation has started?

You may first learn of the investigation when the police contact you on a non-urgent basis to ask you to attend an interview at a Police station. They should identify themselves as the police and explain to you what alleged incident they are investigating. 

Alternatively, you could be arrested immediately by a police officer. You will know if you are being arrested because the Police are under an obligation to give you key information – they must identify themselves as the police, tell you that you’re being arrested, tell you what crime they think you’ve committed, explain why it’s necessary to arrest you and explain to you that you’re not free to leave. There are more details at Police powers of arrest: your rights - GOV.UK (www.gov.uk).

Can I get legal advice?

If you are arrested by the Police, then one of your legal rights is free legal advice (there are other rights you should be aware of, summarised in the link below). You can get free independent advice from the duty solicitor at the station, who is available 24 hours a day, or the police can contact the Defence Solicitor Call Centre (DSCC), or you can ask the Police to call your own solicitor. There are more details at Being arrested: your rights: Legal advice at the police station - GOV.UK (www.gov.uk)

If you ask for legal advice, the police can’t usually question you until you’ve got it (although there are some exceptions).  However, sometimes the police will commence a formal interview, and ask you at the beginning whether you would like a legal representative.

We provide more detail on how best to protect your interests by obtaining the right sort of legal advice below.

How long can I be held and what are my rights at the station?

You can be held for up to 24 hours before the Police have to charge you with a crime or release you (although there are various exceptions to this rule). You have rights that must be strictly observed, including the right to tell someone where you are, to have medical help if you’re feeling ill and to see the rules the police must follow (‘Codes of Practice’).  There are more details at Being arrested: your rights - GOV.UK (www.gov.uk).

Do I need legal advice?

Yes – getting proper legal advice before you are questioned by the police is absolutely crucial. This applies both to situations where the Police invite you to the station on a non-urgent basis for questioning, or where you are suddenly arrested.

Surgeons and doctors are often by nature very public-spirited people, and many might feel that the morally right thing to do is to cooperate fully with the Police and answer all questions put to them straight away even without the benefit of legal advice. Many might assume that the best way to protect their own interests is to answer all questions put to them without legal advice, to show transparency.  Some might also feel impatient to be released from custody and want to waive their right to legal advice just to try to hurry things up and be released.

All these approaches might be understandable because being involved in a criminal investigation is inherently stressful.  But if you are ever unlucky enough to be arrested or invited for questioning by the Police it is of paramount importance to put any such feelings aside and obtain legal advice before you are questioned by Police.  Even if you consider the alleged criminal act to be relatively trivial, the reality is that it is not always in your best interests to rush to cooperate with Police questioning, and there could be major ramifications for your professional life and your GMC registration. You need legal advice, every time.

Guidance if you are arrested without prior warning

Being arrested without prior warning is potentially the most difficult situation you can face.  We hope this never happens to you, but if you do this guidance might help:

• Exercise your right to tell someone where you are straight away – a spouse, close family member, close friend or colleague might be best. You will need to let them know that it is possible that you could be held for up to 24 hours, and therefore they need to inform anyone who needs to know. They will need to help ensure that any caring responsibilities you may have for children or other dependents (including pets) are managed another way. Equally, they may need to inform any hospital or clinic where you work so that any clinical care to patients that you should have been providing over that time can be rearranged or managed another way. There is not always a strict limit to the number of calls you can make – there is no rule saying that you are limited to literally just one phone call. So, if you need to make more than one call to make sure that both the necessary people are informed in both your personal and professional life, then you should insist on making more than one call.
• Exercise your right to get legal advice straight away – Your Incision policy does not cover the cost of legal advice at the Police station if you are suddenly arrested. Therefore, you will either need to i) rely on the duty solicitor or the DSCC, or ii) call a law firm with expertise in both criminal and healthcare regulatory law.  If you need to rely on the duty solicitor or DSCC, be sure to inform them that you are a GMC-regulated surgeon or doctor, and therefore the criminal investigation could in due course be followed by a GMC fitness to practice investigation.  Ask your solicitor for advice as to whether it is possible to delay the Police questioning until you can be represented by lawyers with a dual specialism in criminal law and healthcare regulatory law.  If that is not possible, ask for advice about whether it would be better to go ahead with an interview under caution without the benefit of specialist healthcare regulatory advice, or alternatively to give a purely 'no comment' interview (where you answer all questions with the words "no comment" so that any future interview can be carried out with the benefit of specialist legal advice. Despite the wording of the police caution, ("You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."), it won't necessarily count against you if you give a no comment interview, because a solicitor can submit a statement on your behalf at a later date.
• If possible, call the Incision medico-legal helpline for guidance – The difficulty here is that someone being held in custody is not allowed to discuss the full facts of the case over the phone with a third party (even a medico-legal adviser). However, if you can call them, then you can simply inform them of the fact that you have been arrested and on suspicion of what offense, and the team will be able to start the process of informing your insurers, and they could put you in touch with specialist lawyers who may be able to advise and represent you.

Guidance if you are contacted on a non-urgent basis and invited for questioning

This is a much easier situation to manage.  Simply take down as many details as possible from the Police, do not make any comments or start giving your side of the story to the officer.  Then call the Incision medico-legal helpline immediately.  Your Incision policy does include cover for the cost of legal representation at a police interview that you are invited to in advice, so your insurers will be able to appoint lawyers to advise and represent you.

When to notify your Incision insurers?

The terms and conditions of your Incision insurances includes a requirement to inform ("notify" is the insurance jargon) your insurers about problems promptly.  Notifying at the right time is in your interests because it avoids potential problems with cover, but also gets you access to the right medico-legal (and full legal) advice and assistance when you need it.  There is never any benefit to waiting to see whether the matter develops into anything serious.

You need to notify your Incision insurers as soon as you know or suspect that a criminal allegation may be made against you.  You should do that regardless of whether you think the allegation will have any merit, and regardless of whether the alleged incident was in your NHS or private practice, or indeed in your personal life. 

For example, it may be that your hospital is investigating an alleged criminal incident, or a patient or family member makes an allegation or threatens to report you to the Police.  Even if you think they have no good reason to refer you, and even if it seems like an empty or 'heat of the moment' threat, you should contact Incision straight away to protect your insurance position.  If you anticipate or suspect that the Police could get involved, you should contact Incision as soon as possible. 

Contacting Incision as soon as you can foresee that a Police investigation could start is doubly important, because of the 'multiple jeopardy' aspect. The Incision medico-legal team will assess whether the incident may also result in any other proceedings involving you, such as a GMC investigation, a claim for compensation or Inquest proceedings, and will protect your position by also notifying the parts of your Incision policies that deal with those other sorts of proceedings.

Perhaps more importantly, contacting the Incision medico-legal team as soon as you can foresee a problem means that you will get medico-legal support (and formal legal advice and representation, within the terms of your Incision insurances) at the time you need it, if and when matters progress.  This will give you the best possible prospect of getting through any such Police investigation with your professional reputation (and sanity) intact, and with expert and sympathetic advice and support every step of the way.