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26 July 2019 | Comment | Article by Alan Collins

Doctors and sexual assault – who is liable?


There is no professional relationship more defined by trust and vulnerability than that of the doctor and patient. A patient is at a significant disadvantage in the balance of power as total trust must be placed in one’s doctor.

For this reason, the relationship between the doctor and patient (and that of the patient and the hospital or general practice) is defined by a special, more onerous “duty of care” than the one which defines ordinary everyday relationships. The duty is “non-delegable”. Therefore, the performance of the duty cannot be discharged by entrusting its performance to an apparently competent independent contractor. For example, a doctor’s surgery can’t escape liability for negligent treatment provided by a locum doctor.

However, when it comes to the criminal (rather than negligent) acts of a medical practitioner, the law attaches liability to the surgery or the hospital (i.e. the employer) of the medical practitioner for the wrongdoing. In a clinical context, it is considered to be fair, just and reasonable to do so.

Sexual abuse in a clinical context can take a wide variety of forms. Given the power imbalance, it might be difficult to even realise you have been sexually abused at first. For example, patients can be subjected to invasive and unnecessary treatment, such as vaginal or rectal examinations which serve no clinical purpose. This is a sexual assault. So too is unnecessary filming or photography of body parts.

It is always necessary to act quickly, as you only have three years to make your claim (if you are over 21 years of age) or until your turn 21 years of age if you were a minor at the time of the abuse. However, if you are outside of this time frame, you still have options, but you need to seek expert advice.

The abuse team at Hugh James has successfully represented survivors of sexual abuse at the hands of medical practitioners in lawsuits against the NHS, the surgery and the insurer of the surgery.

If you have been subjected to unnecessary and invasive treatment, or any form of sexual assault, in the course of medical treatment then you have a legal right to seek redress. The abuse team at Hugh James can provide you with free, no-obligation, confidential expert advice about your options.

Author bio

Alan Collins is one of the best known and most experienced solicitors in the field of child abuse litigation and has acted in many high profile cases, including the Jimmy Savile and Haut de la Garenne abuse scandals.  Alan has represented interested parties before public inquiries including the Independent Jersey Care Inquiry, and IICSA (Independent Inquiry into Child Sexual Abuse).

Internationally, Alan works in Australia, South East Asia, Uganda, Kenya, and California representing clients in high profile sexual abuse cases. Alan also spoke at the Third Regional Workshop on Justice for Children in East Asia and the Pacific in Bangkok hosted by Unicef and HCCH (Hague Conference on Private International Law).

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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