Criminal allegation against doctors

The allegations of a criminal nature against doctors are rare. When such allegations are made, these can broadly be divided into two categories: 

1) Those arising from a doctor’s personal life (eg, alleged drink driving offences).

2) Those arising from the doctor’s professional work (eg, allegations of inappropriate contact during a consultation/ gross negligence manslaughter).

Allegations arising out of a doctor’s personal life

Doctors can become subject to criminal investigation which is unrelated to their clinical practice. Although there are no specific obligations to report convictions, the Medical Council may exercise disciplinary jurisdiction over any registered person who has been convicted in Malaysia or elsewhere of any offence punishable with imprisonment (whether in itself only or in addition to or lieu of a fine) as stated in the section 29 of the Medical Act 1971 (Amended 2022).

There is also an obligation for doctors to obtain early legal advice when the doctor has knowledge or information of any impending criminal, civil or ethical proceedings against them, and definitely before responding on his own to the patient’s legal counsel. This is with reference to 11.9 of the Good Medical Practice 2019.

Doctors also need to consider if they are contractually required to report to their employer.

Allegations arising out of a doctor’s professional life

Gross negligence manslaughter

It is very rare for doctors to be charged with gross negligence manslaughter let alone be convicted of this. In order for a doctor to be convicted of gross negligence manslaughter, it is necessary to prove that:

· The doctor owed a duty of care to the patient

· There was a breach of that duty of care

· It must have been reasonably foreseeable to the doctor that the breach would result in a serious and obvious risk of death. [R v Rose (Honey Maria) [2017] EWCA Crim 1168]

· The breach resulted in (or significantly contributed to) the death of the patient

· The breach was “grossly negligent” and as such constituted a crime.

Medical Protection members can request assistance with allegations of gross negligence manslaughter arising from their clinical practice. Any member who becomes aware of the possibility of any such allegation need to contact Medical Protection as a matter of urgency for support and advice from the outset.

Sexual assault/ inappropriate touching

This type of allegation is the commonest criminal allegation arising out of a doctor’s professional life seen at Medical Protection. Such matters can start as simple complaints made directly to a doctor, hospital or clinic but may escalate to criminal matters with the police. As soon as a doctor becomes aware of any such allegation, they should contact their indemnifier.

In Medical Protection’s experience, allegations of inappropriate touching can often arise out of misunderstandings about the nature of an examination. In addition, patients can have differing views around what constitutes an intimate examination. It is important therefore to ensure that any planned examination is clearly explained to a patient including what the purpose of the examination is and what is involved. The patient’s consent to that examination is very important, too.

One example of when a misunderstanding or misinterpretation might arise during a consultation is when it is necessary to examine the hernial orifices. If the patient believes they are to have their abdomen examined, they might then be surprised and concerned if a doctor examines for a hernia without explaining what this will involve and why it is necessary. Clear explanation can help to avoid any misinterpretation but also ensures the patient has given their informed consent for the examination.

Under the Code of Professional Conduct 2019, it is clear that a chaperone must be present when consulting or examining a patient particularly of the opposite sex. The chaperone must be physically present with visual and aural contact throughout the proceedings. Patients may refuse the presence of a chaperone and this needs to be clearly documented in the patients’ records.

Clear documentation of the examination undertaken, including who was present during the examination, is helpful in explaining the doctor’s approach if challenged in the future.

Doctors should also consider the language and behaviour that they use during their interactions with patients. They must be mindful to maintain a professional boundary between themselves and a patient.

The stated approach can help to avoid misunderstandings that might lead to allegations of inappropriate touching.

Media

A doctor’s involvement in criminal matters can be of significant interest to the media and Medical Protection can offer advice and support on how to deal with this and minimize reputational damage. In the event that a member is contacted by a media outlet, Medical Protection would advise them to refrain from commenting and contact their indemnifier straight away.

Wellbeing

Any allegation of a criminal nature can have a significant impact on a doctor’s own wellbeing. It is very important that doctors look after their own health during investigations. This might involve seeking advice from healthcare professionals involved in their care, but Medical Protection also offers its members access to a confidential counselling service as a source of support. More information can be found at: medicalprotection.org/malaysia/wellbeing.

Summary

It is important that doctors consider steps that they can take to mitigate against the risk of an allegation arising out of misunderstanding by ensuring effective communication, consent and record keeping. Doctors are advised to seek legal advice as soon as possible in the event they become aware of an event that has resulted in, or might result in, an investigation by the police.