Sexual Harassment and Doctors

Sexual Harassment and Legal Advice for DoctorsSexual Harassment, Sexual Misconduct – Legal Advice and Representation for Doctors 

While doctors are deeply respected in society, not all live up to the high standards expected of them. One of those standards is to treat everyone with respect and dignity. Each year a number of doctors are disciplined by their employers and the GMC for conduct said to be sexual harassment. In many instances, the allegations are found proved, and a sanction will follow. In employment settings, this could be a 12 month warning (with a requirement to go on diversity and respect courses) or dismissal for gross misconduct. At the GMC, a doctor might be given a warning, conditions of practice, or a suspension. In very serious cases of sexual harassment, a doctor will be erased from the medical register.

Sexual harassment does not have to be sexually or romantically motivated to be classed as highly inappropriate. It might arise due to the doctor being unthinking, or over-familiar. It maybe that the doctor has failed to take on board how recipients of certain types of behaviour might feel.

While most perpetrators are men, some women are also found to be at fault, each year. While toxic masculinity is often the cause, arising from males growing up in a culture that favours mostly men, fundamental stupidity can also be the cause.

The UK government takes sexual harassment at work as being a very serious matter indeed. So serious, that it is expressly held to be unlawful, pursuant to the Equality Act 2010. Section 26 of the Act reads as follows:

Harassment

(1) A person (A) harasses another (B) if—

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of—

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if—

(a) A engages in unwanted conduct of a sexual nature, and

(b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if—

(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b) the conduct has the purpose or effect referred to in subsection (1)(b), and

(c) because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are—

        • …..

        • sex;

        • ….

The above legislation applies to many protected characteristics, but we have focussed for the purposes of this article on harassment related to sex, or sexual harassment. “Sex” in the context of section 26 is generally interpreted as being related to male or females. However, it should be noted that being trans is also a protected characteristic, as is sexual orientation.

From the above legislation, it becomes clear that where a doctor behaves towards somebody of the opposite sex, and they create a situation (even unintentionally) whereby the other person feels discomforted or harmed, the charge of “sexual harassment” might well be made out. (The perpetrator can be entirely without intent (or unthinking) but still have sexually harassed another.)

Examples might include a male doctor saying to a female colleague each day, “hello sweetheart”, or commenting “you always look so gorgeous when you wear your hear like that”. Other examples might be more intrusive and inappropriate, such as. “I bet you look good in a bikini”, or “you have such a shapely figure”. Such talk is often unwanted and unwarranted, but how is the recipient able to convey that feeling, without creating a scene? In short, the recipient should not have to raise it as an issue because the words should not have been spoken in the first place. Dignity in the workplace should mean we can each go to work and not be exposed to such talk. While not everyone might be offended, and some talk might be situational and not harassing in some contexts, there is a risk that unguarded language will be construed as being sexual harassment.

As you will appreciate, the above examples, while at first blush being less serious than some other types of conduct, can still have an unpleasant effect on the recipient, such that they feel insecure and upset in the work place, and even feel that their personal safety is at risk

Some sexual harassment is much more serious, and targetted. Inappropriate comments can escalate, and become sinister and bullying. Words can and often do lead to inappropriate, and non-consensual, touching. Touch is often perceived as a violation by the recipient, even if the touch is not obviously sexual or anatomically inappropriate.

Some examples to illustrate the point: a male doctor who stood so close to females that they could feel his penis touching against them. There was probably nothing intentional on the part of the doctor, but his over-familiarity put him in such close proximity to the women he worked with that they felt sickened and violated when his anatomy came into contact with their hips or legs.

Of course, some touching is intentional and could objectively be said to be highly inappropriate. Some types of touch will always be considered to be gross misconduct, and lead to dismissal. Consider for example a male doctor in the workplace, who reaches over and grabs the breast of a female colleague, randomly and for no obvious reason. Such behaviour can also have criminal justice repercussions.

Consider, also, the male doctor who asks for sexual favours in return for the signing off a junior colleague’s end of year review. Or, the doctor who texts, without consent, a colleague some highly sexualised text and picture messages, including pictures of his erect penis and videos of him masturbating. Consider the case of the female doctor who repeatedly pinched the bottom of a male healthcare assistant; he objected and she persisted all the same. She was mortified when he complained to his employer.

Consider the case a male doctor who persistently texted female colleagues to go out socially with him. He did not mean anything by it, he said; he was just lonely. Yet he was not texting male colleagues to go out socially with him. The women felt harassed, despite on occasions having replied that they would possibly meet up with him. They did not want to meet him but they also did not feel able to say no, they claimed. He argued that if they had said “no” he would have stopped texting them, but that failed to take into account that women do not always feel that they are in a position to say “no”, due to power imbalances in the workplace of in society more generally.

A similar situation arises in relation to same sex sexual harassment. In one example: a female doctor kept saying “hello gorgeous” to young, pretty women colleagues. This was considered to be sexual harassment and inappropriate conduct, by her Trust, and constituted gross misconduct. Her colleagues no longer wished to work with her and there was nowhere else suitable to deploy her. Dismissal becomes the obvious disposal of such concerns.

All of the examples in this article are based on the cases that we have dealt with at Doctors Defence Service. If you are a doctor who is facing allegations of sexual harassment at work or elsewhere, and it is being investigated by the police, your employer or the GMC, we can advise and represent you. Call us without obligation to discuss how we can assist you. We can advise on defence approaches, including denials and admissions, and remediation.

Case Law - Sexual Misconduct

In Okpara v General Medical Council [2019] EWHC 2624 (Admin) the appeal judge rejected the appeal of the doctor who challenged findings of sexual misconduct towards a nurse. The sanction of erasure was upheld.  The appeal judge summarised the GMC allegations that had been found proved, as follows, but also observed that allegations 6a and 6b had been found not proved. The Okpara judgment set out the allegations at paragraphs 6 through to 15.

 

    1. The allegations were as follows. I have numbered the allegations per the paragraph numbers of the fact-finding determination where they are set out.

Allegation 2 (the touching incident)

    1. Dr Okpara was alleged to have said to Ms A that he liked her bottom, or was obsessed with her bottom, or words to that effect. It was also alleged that he pulled suggestive faces at Ms A, touched her bottom with his hands, tried to link his legs with hers whilst sitting next to her at a desk, stood closer to her than was necessary, and made unnecessary physical contact. All of this is said to have happened in the period covered by the following dates: 19 May 2014-16 May 2015, 2 December 2015-12 December 2015 and 4 May 2016-9 August 2016.

Allegation 3(a) and (b) (the drinks invitation)

    1. It was alleged that on an occasion prior to 16 May 2016, Dr Okpara invited Ms A out to ‘drink champagne’ and then gave her his telephone number.

Allegation 3(c)-(d) (the incident in a relatives’ room)

    1. Shortly after the drinks incident, Dr Okpara was alleged to have led Ms A into a relatives’ room in the hospital after asking to speak to her confidentially about a patient. That was a pretence. He then shut the door, stood in front of it, pressed his hand against the door, told Ms A that he wanted a hug, or words to that effect, ignored Ms A’s comments that she felt threatened, and said ‘if you give me a hug I’ll let you out’, or words to that effect.

Allegation 4 (the blood sample incident)

    1. On an occasion prior to 16 May 2015, whilst Ms A was in the process of taking blood from a patient, Dr Okpara was said to have walked in and drawn the curtain around the patient’s bed, stood behind Ms A, and remained standing with his groin touching Ms A’s bottom.

Allegation 5 (the underwear incident)

    1. Dr Okpara was alleged to have offered to buy Ms A underwear. Ms A was said to have ‘laughed it off’ by ‘walking away’ saying ‘the way to a girls heart isn’t through underwear its through diamonds and channel [Chanel]’ (sic).

Allegation 6(a)-(b) (the Facebook incident) [Found not proved]

    1. Ms A alleged that during a night shift on 10 – 11 June 2016, the Appellant came and sat next to her whilst she was using a computer and sent her a ‘friend request’ on Facebook (the well-known social networking website). He is then alleged to have said ‘Are you not going to accept ?’ It was not in dispute that Ms A accepted that request. However, Ms A alleged that the Appellant watched, and waited for her to go to her phone and accept the friend request he had just sent to her.

Allegation 6(c)-(n) (the sluice room incident)

    1. Later the same night, the Appellant was alleged to have sent a message to Ms A stating ‘thanks gorgeous’ following her acceptance of his invitation to become friends on Facebook. He then followed her into a sluice room (where bodily fluids and other bio-waste is disposed of). He was said to have stood behind her, placed his arms around Ms A’s waist trapping her arms by her sides, and placed his groin against her bottom, and then placed his one hand down the waist of Ms A’s trousers and touched the right side of her bottom with the cup of his hand and commented on her underwear. He was then alleged to have smelled her neck, made groaning noises and ignored her request for him to desist. He was alleged to have said ‘please just a little longer’ and ‘it’s ok you just have this effect on me’ (or words to that effect).

Allegation 7 (the staff room incident)

    1. It was alleged that during a night shift at 3am on 8 August 2016 when Ms A was eating her meal in the staff room Dr Okpara came in and stood behind her and placed his hand on her shoulder and his groin against the back of her torso. He ignored her request to stop, and said, ‘Why ? I’m just standing here. When you like someone it’s hard not to be this close’, or words to that effect.

Allegation 8

    1. This was an over-arching allegation that the conduct in [2]-[6] and [7(b)-(e)] was sexually motivated.

 

(09 October 2019) 

The Okpara case is a useful illustration of how the GMC will present allegations of alleged sexual harassment.

Articles on Sexual Harassment (External Links)