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SEX WITH PATIENTS? DOCTORS SHOULD KNOW BETTER

By Edward E. Hollowell and Mark A. Bernat, MD, JD, Mitchell Warner, P.A.

The physician-patient relationship is the "lynch pin" between physicians and their patients and patients and their physicians. Because both physician and patient are involved in the physician- patient relationship, violating patient boundaries can jeopardize patient care and the physician's ability to practice medicine. Although certain boundaries in the physician-patient relationship are defined by custom, laws and regulations, some boundaries may be defined by common sense. The challenge facing every physician is to know the appropriate boundaries for each aspect of the physician-patient relationship. Thus, the burden for knowing about and complying with boundaries is borne solely by the individual physician.

Mutual trust forms the cornerstone of the physician-patient relationship. Patients must know that their needs are paramount. Physicians and their patients act upon the trust and confidence that they have in each other which is founded upon the physician- patient relationship.

Through its Position Statements, the North Carolina Medical Board [hereinafter The Board] has provided both general and specific guidelines which, if strictly observed, should protect physicians from overstepping the boundaries and the relative "safety" which the boundaries provide. In May 2000, The Board published a Position Statement stating the interests and health of the people of the North Carolina are best served when the physician-patient relationship, founded on mutual trust, is considered sacred. The Board further elaborated that the crucial elements of the physician-patient relationship, and the inherent underlying trust, include communication, patient privacy, confidentiality, competence, patient autonomy, compassion, selflessness, and appropriate care, all of which should always be foremost in the hearts, minds and actions of physicians.

Because of the unique relationship between physicians and their patients, one aspect of the human experience which frequently invites violation of established boundaries is that of inappropriate sexual contact and intimacy. It is more than obvious that sexual interactions between physicians and their patients detract from the goals of the physician-patient relationship. Bringing sexual conduct into the physician-patient relationship may:

Exploit the patient's vulnerability;
Obscure the physician's objective judgment concerning the patient's health care; and
Be detrimental to the patient's well- being.

The Board's Position Statement is clear and unequivocal it will not tolerate a physician entering into a sexual relationship with a patient, consensual or otherwise. Such behavior and conduct is extremely unprofessional and provides a basis for suspension or revocation of a physician's license. The Board extends this position to apply to midlevel health care providers, nurse practitioners, rnidwives and emergency medical technicians authorized to perform medical acts. Disciplinary actions taken by The Board are posted on The Board's website and becomes part of the public domain, they are also published by The Board and released to news media, to state and federal governments and to medical and professional organizations. Besides being violative of The Board's Position Statement, inappropriate sexual conduct is prohibited by The American Medical Association's ethical guidelines. Such conduct by physicians may open a physician to civil suits or possible criminal liability if minors are involved.

Guidelines that prohibit sexual contact between health care providers and patients often rely on the argument that such relationships violate the ethical principles of respect for both autonomy and beneficence. Although some may argue that a patient's valid consent for a sexual relationship with their physician overrides such principles, mutual consensual participation will never excuse a physician's duty to adhere to professional ethical standards of conduct. Professional virtues such as self-effacement and self-sacrifice always obligate the physician to set aside any personal feelings and forego acting on feelings of sexual attraction toward patients.

Since erotic feelings sometimes arise in physician-patient relationships, despite prohibitions against sexual involvement between physicians and their patients, what can the prudent physician do to protect the physician-patient relationship? Consider the following:

Consciously establish behavioral limits for your professional relationships.
Examine your own sexual feelings rationally, and respond to a patient's sexual overtures in a firm, but nonjudgmental manner.

If such steps do not work, the provider should seek appropriate consultation and terminate the professional relationship, especially if sexual feelings create an imminent compromise of a patient's care.

One of the most basic precautions that a physician can take to avoid baseless allegations of improper sexual contact is to always have another person in the examination room when examining a person of the opposite sex. By adhering to this practice without deviation or compromise, physicians will eliminate virtually all of the opportunities to become inappropriately involved with a patient.

Although much of this discussion has focused on, presumably, violations of sexual boundaries in the physician-patient relationship between adults, it is important to consider other types of relationships. The relational boundaries between the physician and the patient have expanded to include other patient family members as well. The Committee on Bioethics for the American Academy of Pediatrics has stated that pediatricians must also strive to maintain appropriate professional boundaries in their relationships with patients' family members. The Academy insists that pediatricians should avoid any type of behavior that patients and parents might misunderstand as having sexual or inappropriate social meaning.

Compliance with boundaries in physician-patient relationships begins with a knowledge of what the boundaries are. If you are "fuzzy" on what constitutes appropriate behavior, a review is in order. A firm personal commitment to refraining from exceeding established boundaries is the key factor to maintaining appropriate relationships. Finally, avoiding situations which may create opportunities for inappropriate sexual contact is crucial. In the event an unexpected or unforeseeable situation presents itself, physicians in such situations should, having recognized the dangers of the situation, "FLEE" because any improper involvement or behavior resulting in a sexual boundary violation can cause irreparable devastation to physicians personally, their families and ultimately their professional careers.

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The Medical Law Alert is a publication of the Mitchell Warner Health Law Group. Its purpose is to provide general information about significant legal developments, and should not be construed as legal advice on specific factual scenarios. For more information on the issues discussed in this publication, please contact Edward E. Hollowell at (800) 662-7403. The Editor gratefully acknowledges the contributions of Mark A. Bernat, MD, JD, in the preparation of this Medical Law Alert.