BOUNDARY ISSUES AND PHYSICIAN SEXUAL

MISCONDUCT

LEARNING OBJECTIVES• To recognize and define professional sexual

misconduct

• To distinguish between sexual violation and sexual impropriety

• To recognize “red flag” situations to heighten awareness

• To become familiar with the laws and rules governing the physician/patient relationship

ONLY THE PROFESSIONAL HAS A PROFESSIONAL CODE

TO VIOLATE.

THE PATIENT HAS NO SUCH CODE.

PROFESSIONAL SEXUAL MISCONDUCT

• GENERAL DEFINITION:

• THE OVERT OR COVERT EXPRESSION OF EROTIC OR ROMANTIC THOUGHTS, FEELINGS, OR GESTURES BY A PROFESSIONAL TOWARD A PATIENT, CLIENT, TRAINEE, SUPERVISEE OR STAFF THAT ARE SEXUAL OR MAY BE REASONABLY CONSTRUED AS SEXUALLY DEMEANING OR DEMONSTRATES A LACK OF RESPECT FOR THE PERSON’S PRIVACY.

2 PRIMARY LEVELS OF SEXUAL MISCONDUCT

• SEXUAL VIOLATION

• SEXUAL IMPROPRIETY

SEXUAL VIOLATION

• MAY INCLUDE PHYSICIAN-PATIENT SEX, WHETHER OR NOT INITIATED BY THE PATIENT, AND ENGAGING IN ANY CONTACT WITH A PATIENT THAT IS SEXUAL OR MAY BE REASONABLY INTERPRETED AS SEXUAL, INCLUDING BUT NOT LIMITED TO:

SEXUAL VIOLATION - CONTINUED

• SEXUAL INTERCOURSE• ORAL TO GENITAL CONTACT• ORAL TO ANAL CONTACT, GENITAL TO

ANAL CONTACT• KISSING IN A ROMANITIC OR SEXUAL

MANNER• TOUCHING BREASTS, GENITALS, OR ANY

SEXUALIZED BODY PART FOR ANY PURPOSE OTHER THAN APPROPRIATE EXAMINATION OR TREATMENT

SEXUAL VIOLATION - CONTINUED

• TOUCHING THE BREASTS, GENITALS, OR ANY SEXUALIZED BODY PART WHEN THE PATIENT HAS REFUSED OR WITHDRAWN CONSENT

• ENCOURAGING THE PATIENT TO MASTURBATE IN THE PRESENCE OF THE PHYSICIAN OR MASTURBATION BY THE PHYSICIAN WHILE THE PATIENT IS PRESENT

• OFFERING TO PROVIDE PRACTICE RELATED SERVICES, SUCH AS DRUGS, IN EXCHANGE FOR SEXUAL FAVORS

SEXUAL IMPROPRIETY

• MAY COMPRISE BEHAVIOR, GESTURES, OR EXPRESSIONS THAT ARE SEDUCTIVE, SEXUALLY SUGGESTIVE, OR SEXUALLY DEMEANING TO A PATIENT, INCLUDING BUT NOT LIMITED TO:

SEXUAL IMPROPRIETY - CONTINUED

• DISROBING OR DRAPING PRACTICES THAT REFLECT A LACK OF RESPECT FOR THE PATIENT’S PRIVACY, DELIBERATELY WATCHING A PATIENT DISROBE, ETC.

• SUBJECTING A PATIENT TO AN INTIMATE EXAMINATION IN THE PRESENCE OF MEDICAL STUDENTS OR OTHER PARTIES WITHOUT THE CONSENT OF THE PATIENT OR WHEN CONSENT HAS BEEN WITHDRAWN.

SEXUAL IMPROPRIETY – CONTINUED

• EXAMINATION OR TOUCHING OF THE GENITALS WITHOUT THE USE OF GLOVES

• USING THE PHYSICIAN/PATIENT RELATIONSHIP TO SOLICIT A DATE

• INITIATION BY THE PHYSICIAN OF CONVERSATION REGARDING SEXUAL PROBLEMS, PREFERENCES OR FANTASIES OF THE PHYSICIAN

• EXAMINING THE PATIENT INTIMATELY WITHOUT CONSENT

SEXUAL IMPROPRIETY - CONTINUED

• INAPPROPRIATE COMMENTS ABOUT OR TO THE PATIENT, INCLUDING MAKING SEXUAL COMMENTS ABOUT A PATIENT’S BODY OR UNDERCLOTHING, MAKING SEXUALIZED OR SEXUALLY DEMEANING COMMENTS TO A PATIENT, CRITICIZING THE PATIENT’S SEXUAL ORIENTATION, POTENTIAL SEXUAL PERFORMANCE, SEXUAL LIKES/DISLIKES WHEN NOT CLINICALLY INDICATED

GENERAL TRUTHS

• No matter how difficult or boundary testing the patient may be, IT IS ALWAYS the professional’s responsibility to maintain appropriate boundaries or if unable to do so – refer the patient for competent help or counsel.

• Crossing boundaries by a professional is ALMOST ALWAYS a power differential.

GENERAL TRUTHS - CONTINUED

• Sexual misconduct usually begins with relatively minor boundary violations to include place/space, money, gifts/services, clothing and language.

• The professional must refrain from obtaining personal gratification at the expense of the patient.

• No level of training confers immunity from sexual misconduct by a professional.

ISSUES TO CONSIDER

• Understand there are boundaries which prevent against dual relationships

• Improper prescribing to friends

• Doctor/patient confidentiality requirements

• Creating a professional atmosphere in the office – which extends to staff

• Respect of a patient

ISSUES TO CONSIDER - CONTINUED

• Ambiguity in the doctor/patient relationship (Ex. hugging, etc.)

• Unethical requests by patient (Ex. falsification of documents, etc.)

• Creating an atmosphere of trust so the medical care and healing can occur.

• The power always rests with the doctor and the patient is vulnerable, even if the patient initiates the unethical act.

“RED FLAG” SITUATIONS

• Doctor starts talking to patient about their personal life

• Doctor checks their personal appearance before a particular patient arrives

• Patient is scheduled at end of the day to “allow for more time”

• Doctor allows staff to leave early while he/she interact with a particular patient

“RED FLAG” SITUATIONS - CONTINUED

• Doctor offers patient food or drink• Doctor exchanges gifts or hugs with a

patient• Doctor offers free care to a particular

patient• Doctor calls patient at home when the

condition does not warrant it• Doctor meets the patient outside the office

MEDICAL BOARD AUTHORITY

• TITLE 43 OF THE OFFICIAL CODE OF GEORGIA ESTABLISHES THE BOARD TO REGULATE THE PRACTICE OF MEDICINE

• THE BOARD HAS A STATUTORY MANDATE TO PROTECT THE PUBLIC.

OCGA TITLE 43

• TITLE 43 OF THE GEORGIA CODE PROVIDES AUTHORITY TO THE BOARD TO REVOKE, RESTRICT, OR OTHERWISE DISCIPLINE A PHYSICIAN’S LICENSE BASED ON UNPROFESSIONAL CONDUCT BY THE LICENSEE.

UNPROFESSIONAL CONDUCT

• WITHIN THE RULES AND REGULATIONS OF THE BOARD, UNPROFESSIONAL CONDUCT IS DEFINED.

• RULE 360-3-.02(8) DEFINES SEXUAL MISCONDUCT

RULE 360-3-.02(8)

• Committing any act of sexual intimacy, abuse, misconduct, or exploitation of any individual related to the physician’s practice of medicine regardless of consent. This rule shall apply to former patients where the licensee did not terminate in writing the physician/patient relationship before engaging in a romantic or sexual relationship with the patient and/or….

RULE 360-3-.02(8) CONTINUED

• ….where the licensee used or exploited the trust, knowledge, emotions or influence derived from the prior professional relationship. The Board will consider the physician/patient relationship terminated if the physician has not evaluated or treated the patient for a period of at least two (2) years.

RULE 360-3-.02(12)

• This rule concerns the examination of a patient’s genitalia. It states:

• Unprofessional conduct is further defined as conducting a physical examination of the breast and/or genitalia of a patient of the opposite sex without a chaperone present.

POTENTIAL OUTCOMES

• UPON A FINDING THAT A PHYSICIAN HAS ENGAGED IN UNPROFESSIONAL CONDUCT, TO INCLUDE SEXUAL MISCONDUCT, THE BOARD IS EMPOWERD TO TAKE A VARIETY OF ACTIONS AGAINST THE LICENSEE.

POTENTIAL OUTCOMES - CONTINUED

• ORDER THE PHYSICIAN TO UNDERGO A COMPREHENSIVE MENTAL/PHYSICAL EVALUATION

• EMERGENCY/SUMMARY SUSPENSION OF LICENSE

• REVOCATION

• PROBATION/MONITORING

ISSUES TO CONSIDER BY THE BOARD WHEN

DECIDING APPROPRIATE ACTION

• PATIENT HARM• SEVERITY OF IMPROPRIETY• CULPABILITY OF LICENSEE• PSYCHOTHERAPEUTIC RELATIONSHIP• AGE OF PATIENT (MINOR, ETC.)• NUMBER OF TIMES BEHAVIOR OCCURRED• PERIOD OF TIME RELATIONSHIP EXISTED

ISSUES TO CONSIDER BY BOARD - CONTINUED

• INAPPROPRIATE TERMINATION OF PHYSICIAN/PATIENT RELATIONSHIP

• RESULTS OF MENTAL/PHYSICAL EVALUATION