September 03, 2010
   
Add to Google
email a friend print Bookmark and Share




Fall is the time to get a flu vaccine. Even if vaccines cannot protect one completely against all forms of the flu virus, they usually resu More >

Follow us on Twitter. Become a fan on Facebook. Receive updates via E-mail and SMS:







Would you like to ask our staff a question? >
Join the discussion and leave a comment on this article >

Sexual Relationships with Patients

Maxwell J. Mehlman, J.D.
 
Sexual relationships with patients are problematic, not only because they may be unethical and may compromise patient care, but because they may lead to civil actions for damages, criminal actions, and disciplinary proceedings by state medical boards.(1) While concern focused originally on relationships between patients and psychiatrists, it is now generally recognized that the problem extends to non-psychiatric physicians as well.

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."(2)

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.(3)



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.(4)

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.(5) 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."(6) 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.(7) 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).



 
 
Add Comment
NOTE: We regret that we cannot answer personal medical questions.

Name


Comment

Characters remaining:



Readers Comments
(4) Comments have been made

Able to Read
"Concurrent with the physician-patient relationship". Concurrent means at the same time. That is why the policy goes on to state "At a minimum, a physician's ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient." It does state that there may be additional reasons not to ever start a relationship (psychiatry is one example). Read the actual AMA policy E8.14 rather than this somewhat edited and self serving interpretation.
Posted Fri, Aug. 20, 2010 at 10:53 pm EDT
 
Disgusted
It doesn't seem right that people choose to have affairs and then want to sue the other person because of their own poor choices. Stop having sexual relationships with your caregivers. If you have one come on to you, say no, get another doc and then turn them in. Have that much responsibility for yourself. You shouldn't sell your houses, risk your jobs, or otherwise put inappropriate trust in any other human being. Don't give up your life in exchange for the chance of commitment; get the commitment first.
Posted Sat, May. 22, 2010 at 11:59 am EDT
 
Audrey
I had a two year relationship with my childhood psychiatrist. I gave up my house and disability benefits to move in with him and get married. He abruptly ended the relationship in a very abusive manner throwing me out with nowhere to go. He says that he only used me for sex and had no other interest. The resultant exacerbation of my psychiatric illness has caused me to lose my job. What are my rights? How can I prevent another from being hurt.
Posted Mon, Apr. 26, 2010 at 2:43 am EDT
 
dhickman
I need guidance. I have lost my job due to a relationship with my doctor. I have proof of affair. Want help.
Posted Wed, Apr. 14, 2010 at 10:12 pm EDT



The Doctor Will See You Now   |   LEGAL RESTRICTIONS AND TERMS OF USE OF THIS SITE. USE OF THIS SITE IS YOUR AGREEMENT TO THESE TERMS.
Copyright 2010 interMDnet Corporation. All rights reserved.
About Us | Privacy Policy | Disclaimer | System Requirements