But how far does the taboo extend? Suppose a state medical board seeks to discipline a physician for having an affair with a patient, but both the patient and the physician insist that the patient consented to the relationship. Should the board dismiss the proceeding?
Obviously, not if the patient is a minor. Consent is not a defense to a charge of statutory rape or sexual imposition on a minor.
But what if the patient is a competent adult?
The American Medical Association Council on Ethical and Judicial Affairs states categorically that "[s]exual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct" (Opinion 8.14). In an article in JAMA announcing the policy, the Council rejected the position that sexual relationships should be permitted with the patient's consent on the ground that "the relative position of the patient within the professional relationship is such that it is difficult for the patient to give meaningful consent to such behavior."
It is interesting that the AMA categorically condemns sexual relationships to which patients allegedly consent. The American Bar Association, for example, although taking a dim view of these relationships, does not absolutely rule out the possibility that a client has given effective consent:
The lawyer may be called upon in a disciplinary or other proceeding to show that the client consented, that the consent was freely given based on full and reasonable disclosure of the risks involved, and that any ensuing sexual relationship did not in any way disadvantage the client in the representation; that is, the attorney's judgement remained independent, the representation proceeded free of conflicts, the privilege was not compromised and the other ethical obligations to the client were fulfilled.
Moreover, courts have indicated that, despite the physician's greater power within the relationship, they are willing to consider on a case- by-case basis whether to uphold agreements between patients and physicians in which the patient agrees not to sue the physician for malpractice.
Why then does the AMA absolutely prohibit sexual relationships with consenting adult patients? Perhaps it would be too expensive or time-consuming to scrutinize the propriety of these relationships and the effectiveness of consent on a case-by-case basis. For example, the Supreme Court of the United States has upheld maximum age limits for police officers against the challenge that they violate the Constitution by depriving the officers of the ability to show that they in fact are physically capable of doing the job past the age cut-off. Or perhaps the AMA feels that there simply are no circumstances in which a patient could give valid consent.
What about sexual relationships after the patient-physician relationship has ended? You would think that these would be OK, so long as the physician did not abuse the relationship. But the AMA takes the position that ending the professional relationship may not be enough: a relationship still may violate professional ethics "if the sexual contact occurred as a result of the use or exploitation of trust, knowledge, influence, or emotions derived from the former professional relationship." When would this be the case? The only other guidance that the AMA gives is of little help:
Relationships between patients and... physicians may also include considerable trust, intimacy, or emotional dependence. The length of the former relationship, the extent to which the patient has confided personal or private information to the physician, the nature of the patient's medical problem, and the degree of emotional dependence that the patient has on the physician, all may contribute to the intimacy of the relationship. In addition, the extent of the physician's general knowledge about the patient (i.e., the patient's past, the patient's family situation, and the patient's current emotional state) is also a factor that may render a sexual or romantic relationship with a former patient unethical.
Is the idea that the more intimate the former patient-physician relationship, the less ethical a subsequent sexual relationship? Or is it the other way around?
Some commentators have suggested that the way to deal with sexual relationships with former patients is to impose a minimum waiting period following the termination of the patient-physician relationship. Appelbaum and his colleagues, for example, propose three to six months. This suggestion raises some peculiar practical problems, however. If the patient and physician, for example, have discovered a yen for each other, what kind of relationship are they permitted to engage in while waiting for the mandatory period to expire? In any event, the AMA rejects this idea, citing research that shows that patients continue to have strong feelings about psychotherapists for five to ten years after the therapeutic relationship ends. For further reading on some of the legal ramifications of sexual relations with patients, I suggest:
- J. Barker, "Comment: Professional-Client Sex: Is Criminal Liability an Appropriate Means of Enforcing Professional Responsibility?" 40 U.C.L.A. Law Rev. 1275 (1993).
- T. Dobash, "Note: Physician-Patient Sexual Contact: The Battle Between the State and the Medical Profession," 50 Wash. & Lee Law Rev. 1725, 1729 (1993).