14th Greek Australian Legal and Medical Conference
Cape Sounion, Greece 2013

Is there as much need for Protection as Health Professional Boards and Tribunals seem to believe?

Introduction

I am suggesting that the rule that doctors and other health professionals must not have sexual relationships with their patients or former patients has become too inflexible, and that, in spite of decisions stating that determinations of regulatory health professional bodies are not concerned with punishment, but with protection of the public1, they often appear to be punitive rather than protective.

Recent Australian research2 confirms that there appears to less concern with health being put at risk by incompetent or dangerous treatment, than there is with the alleged effect on community confidence of any sort of sexual relationship with a patient.

Of course, the community should be protected from health professionals engaging in predatory or exploitative sexual behaviour. However the rules are not framed in terms of predatory or exploitative behaviour, but as an absolute ban on sexual relations between health professionals and their patients, even after the professional relationship has ceased. I believe this approach does not accord with community expectations.

Caring, sincere, affectionate relationships between mature people may result in the health professional losing his or her career. The community may be deprived of the valuable skills and services of the health professional, for no reason other than a personal relationship, of which a regulatory body disapproves.

When community standards have become more flexible as to acceptable sexual behaviour over the last fifty years, why have the rules as to consenting sexual relationships with former patients lost their former flexibility?

Dr H

My interest in these issues arose when I sat as a panel member for a hearing of the Medical Practitioners Board of Victoria in mid 2006.3 (F3) That matter concerned a psychiatrist, Dr H who commenced an affair with a former patient in 1997, shortly after ceasing to treat her. She had first been referred to him 20 years earlier. He had treated her for three periods of time, the first of about 2 years, after her mother had died, the second and third, each lasting only a few months, following other stressful circumstances.

Towards the end of the third period of treatment the patient told him that she had romantic feelings about him. He explained about transference and said that it would not be appropriate for him to continue treating her. As they were at the point where treatment was due to cease, he did not refer her to another psychiatrist.

She contacted him a short time later saying that she had been successful in an application for a responsible position and suggested a drink to celebrate. He agreed. The affair commenced shortly after. It continued for approximately seven years. Dr H was married. The former patient was not married, nor in another relationship.

The evidence established that Dr H was an excellent, caring and well respected psychiatrist, who performed teaching and mentoring roles in the under resourced suburb in which he worked. The patient was a professional woman, there was no troubling age discrepancy and the relationship was affectionate and caring. There was no suggestion that Dr H had ever before engaged in unprofessional conduct of any nature, and it was not alleged that the relationship was the result of predatory behaviour on his part.

The Panel found that Dr H had engaged in unprofessional conduct of a serious nature as defined in the relevant legislation4, and in breach of the RANZCP Guidelines of 1994 and 2004.

All the Panel members found that it was unlikely that Dr H would engage in a sexual relationship with a patient or former patient again. We also found that he had developed insight into his conduct, had acknowledged that it was a gross misjudgment on his part, and had shown remorse.

We found that there was likely to be a benefit to the public, in Dr H continuing to practice his profession. His barrister accepted that Dr H’s registration would be suspended or cancelled, as a deterrent to other medical practitioners, and to maintain public confidence in the profession.

My colleagues stated that the predictive capacity of bodies such as the Board, in relation to repetition of sexual misconduct was poor, so they had to be cautious. They accepted the argument put on behalf of the Board, that the difference between a long term affectionate and sincere relationship and a more casual insincere one was not important, because both represented a very serious departure from professional standards. They decided that Dr H’s registration had to be cancelled, and that he be disqualified from reapplying for registration for two years.

After careful consideration, and even bearing in mind that this was my first hearing for the Board, I could not agree that cancellation of Dr H’s registration was necessary or appropriate, in view of our finding as to the unlikelihood of Dr H re-offending. I did not consider that Dr H’s conduct showed that the community required protection from him, or that he was unfit to practice. I would have imposed a 12 months suspension.

Dr H appealed to VCAT5. It emphasised that the purpose of any determination of the Board was not to punish a doctor, but to protect the public. VCAT decided that the public was not at any significant risk from Dr H and that an 18 months suspension, together with a reprimand, was the appropriate sanction.

Interestingly, Counsel for Dr H had pointed out that in 1997, when the inappropriate relationship commenced, the relevant Guideline did not clearly forbid sexual relationships between psychiatrists and former patients. It stated that such relationships were “generally improper…unless the circumstances of the professional relationship have not rendered the patient vulnerable to a subsequent approach”. By 2004 amended Guidelines stated, “Sexual relationships between psychiatrists and former patients are always unethical”.

Similarly, earlier decisions on sexual relations between doctors and patients or former patients allowed consideration of the particular circumstances of the case. In 1995, Dowsett J6, in Queensland, observed:

11. It is professional misconduct to engage in acts of intimacy with a patient whilst the doctor and patient relationship continues.

12. It is professional misconduct to exploit a discontinued professional relationship. Thus a medical practitioner should only commence or continue an association with a former patient if there can be no suggestion that he or she is exploiting a dependency created in the course of the professional relationship.

14. … [I]ndividual examples may vary in severity. The more serious the misconduct, the more likely it will be that the interests of the public will dictate removal from the register. In cannot be said that every case of misconduct of this kind will dictate such removal. (emphasis added)

Dr H’s hearing raised various questions:

1 Does the public suffer more from the loss of the services of a very good doctor, than from such a doctor being allowed to continue to practice, after having made a serious mistake, where there is very unlikely to be a repetition of the mistake?

2 If a Board has made a finding that unacceptable conduct is unlikely to be repeated, is it appropriate for it to discount that finding on the basis that Boards are bad at predicting whether such conduct will be repeated?

3 Is there always a breach of trust involved in doctor/patient or former patient relationships?

4 Are all relationships, whether long-standing and sincere, or exploitative and insincere, equally wrong?

Ms W

One of the longest periods of disqualification, of which I am aware, was imposed on a nurse, Ms W, who had a relationship with a former patient. There was no element of exploitation, and no complaint by the former patient. Someone else made the complaint and the former patient immediately advised the Health Care Complaints Commission (“the HCCC”) that he made no complaint about the relationship and held the nurse in high regard as a professional and as a person of good character. It is difficult to see how protection of the community required any disqualification.

Ms W had been nursing part-time at a private hospital, while putting herself through law school. Each patient in the “mood disorders unit” had a ‘primary care nurse’. Because of her legal studies, Ms W was assigned those patients with a legal background. One was a lawyer suffering from depression and related alcoholism. They discussed her studies, and the work she was doing as part of a law student international mooting team, preparing for a competition in Vienna. As his health improved, the lawyer started to make helpful suggestions to Ms W, and became an informal coach to the team.

Ms W and the lawyer kept in touch, as friends, after he was discharged from hospital. Some time later they began a relationship. They were quite open about it, and were regarded by their friends as a couple. Hehad successfully resumed working as a solicitor<. His health continued to be good. At the time they were both in their fifties, and not married, nor in another relationship. All the evidence of which I am aware, suggests that they were both happy in the relationship.

Unfortunately, Ms W had a financial dispute with a former boarder in her house. That person reported the relationship to the hospital management. The hospital referred the complaint to the HCCC. It advised Ms W that it was investigating the matter. She contacted her union representative, who advised her to cease the relationship immediately. She and the lawyer reluctantly did as advised.

The lawyer wrote to the HCCC saying that he made no complaint about the relationship, and that he would have expected the HCCC to contact him to ascertain the relevant facts. As it had not done so, he set them out. He wrote that the relationship developed about three months after his discharge from hospital. At that time Ms W had been a nurse for 32 years and he had been a practicing solicitor for 29 years. He acknowledged that he was a depressant (with related alcohol dependency), but wrote that he had been at all times completely in charge of his mental faculties. He added:

I have nothing but admiration and respect for Ms W as a nurse. I do not consider that the relationship between myself and Ms W was ever inappropriate and consider that any disciplinary action against her is unwarranted.

The lawyer complained that he had not been contacted as a witness, and pointed out that the complaint was made by a person with a prejudice against Ms W. He complained that the HCCC had accessed his telephone records without reference to him.

This had no effect on the HCCC. It continued its investigation and subpoenaed the lawyer’s medical records, in addition to the telephone records. He was angry that the HCCC had interfered with his relationship. He became distressed at having his telephone records (including those of his clients), and his medical records taken by the HCCC, without his permission. He suffered further depression and again resorted to alcohol. Tragically, this time he suffered severe brain damage, and when the matter came on for hearing, was unfit to be called as a witness. Ms W, who had not renewed her nurse’s registration, was disqualified from re-applying for registration for 3 years7.

I question this extension to the nursing profession of the rule in respect of the medical profession. I discussed Ms W’s situation, in general terms, with a number of my friends, doctors, judges, other lawyers and psychologists among them. Only the medical profession seemed to think there was anything wrong with what Ms W had done. Interestingly, and somewhat to my surprise, at first, the lawyers suggested that there was no similar embargo on lawyers developing relationships with their clients or former clients. Eventually I checked this with someone who worked at the Legal Services Board of Victoria. She responded:

I can confirm that there are no rules or restrictions on lawyers forming intimate relationships with clients. Apparently we occasionally get complaints [of that sort] but the problem is more the issues that raises like conflict of interest.

There is nothing new about nurses and their patients falling in love

In 2011 the Benalla Art Gallery had an exhibition entitled “Of Love & War”. It consisted of photographs and stories about soldiers who had been forced to leave their girlfriends to go to war.

One room was devoted to soldiers who had been wounded. Some had ended up marrying the nurses who had cared for them during their hospitalization or rehabilitation treatment. The theme I took from that room was that these relationships were a good thing. They brought love and happiness to the nurses and to their patients. The returned servicemen found wives who understood them and their difficulties. Here are two stories from the book accompanying that exhibition8:

When Captain Jim Menzies was wounded during service in New Guinea, his war was over. However, a new chapter in his life was just beginning. Sent back to Australia to recover, he found himself at the 115th Australian General Hospital (AGH), Heidelberg, Victoria, in the ward run by Sister Kathleen Gardner. As Sister Gardner took care of him with efficiency, gentleness and skill, Jim was smitten.

Jim had been wounded in February 1943. By May he was mobile again and took Kathleen to the beach at Frankston to celebrate his birthday. The two had fallen deeply in love during Jim’s recuperation, and Jim proposed that day on the beach.

The couple married on 26 June 1943 and, …Jim was discharged from the army in 1944. The couple had a long and joyful marriage,…

Captain Claude Stubbings served in WW1. He was wounded in June 1917 and was awarded the Military Cross. In August 1918, he was again wounded. After peace was declared he was sent home to Melbourne. Part of his treatment was delivered by a masseuse, or as we would say to-day, a physiotherapist:

The couple fell in love, but their path to the altar was not smooth. Ena’s parents were horrified at their daughter’s relationship with a severely damaged man. Believing that Claude would not recover from his injuries, that at best he would struggle to support his wife and at worst might die, they refused to bless the match.

Despite this obstacle, Ena and Claude were married in 1921 after Claude’s discharge from the AIF. Claude, with his wife’s care, continued to regain his strength. Claude lived to 58, dying in 1950.

The Age Good Weekend in its regular feature “The 2 of Us” last year featured a story on Terry and John Underwood. It started:

Terry Underwood, now 67, was a Sydney nurse when she met young Northern territory cattleman John Underwood, 71. They have been married for more than 40 years, have four children and have recently put their iconic property, Riveren, up for sale.

Apparently Terry nursed John in her second year of nursing training. He had a broken back as a result of his horse rolling on him. They wrote to each other for two years after he left hospital. Then John invited Terry up to visit him on his family’s property and shortly afterwards came to Sydney and asked her to marry him. She did so and they lived happily ever after.9

The media and the community seem to think those are happy stories. Why don’t regulatory bodies agree?

Removal of Doctors from Practice for Professional Misconduct

My concern about the current views about relationships between health professionals and their patients was reinforced by the research mentioned earlier.10 The authors explain that cancellation and suspension are more likely to be ordered in respect of “behaviours indicative of character flaws and lack of insight”, meaning conduct involving sexual contact with a patient or former patient, than for “exhibiting errors in care delivery, poor clinical judgement or lack of knowledge”.

The authors found that the odds of removal from practice (ie suspension or cancellation) were 22 times higher [81 %] in cases in which doctors were found to have had a sexual relationship with a patient compared with all other cases. Inappropriate sexual conduct with a patient outside the context of a relationship had a removal rate of only 53%.

The authors commented:

[I]t is not immediately clear why having a sexual relationship with a patient is much more strongly associated with removal than other forms of inappropriate sexual conduct towards patients. Closer analysis … suggests that tribunals tend to be dismissive of the idea that patient consent has any weight, given the power imbalance between the parties. Rather, the ongoing and typically clandestine nature of sexual relationships, often combined with a lack of insight and lack of remorse, elevates the seriousness of this conduct from a public protection perspective. By contrast, in cases involving sexual misconduct that occurs outside a relationship, the misconduct is often an isolated incident, which may be judged to have occurred due to misunderstandings or one off indiscretions.”

I was puzzled by the assumptions in that analysis?

How do we know there is always a power imbalance?

What if the relationship is not clandestine, but open, maybe even sanctioned by marriage?

If patient consent is not relevant, what sort of misunderstanding could there have been in the sexual misconduct outside a relationship cases?

Why are one-off indiscretions with a patient less morally flawed than entering into a caring and responsible relationship with a partner, who is suitable in all respects apart from being a patient or former patient?

Wouldn’t an ongoing caring, committed, monogamous and responsible relationship with one patient, maybe even a marriage, tend to reduce the need for future protection of the public?

The authors then consider why “failings in relation to delivery of medical care, such as mistreatment and diagnosis, result in removal from practice much less frequently .”

They suggest this could be because of a belief that an incompetent doctor can be taught to lift his or her game, but a “morally flawed” doctor will not change his or her moral character.

I do not share the authors’ confidence in the options available to address “deficiencies in core medical competencies”. Nor do I agree that it is appropriate to dismiss the sexual misconduct cases, whether in a relationship or not, with the comment, “dysfunctional behaviours and clear signs of bad character may be perceived as relatively untreatable”.

Arrogance leading to insufficient care and attention, failure to take recommended precautions or order appropriate investigations, careless or over prescribing, misusing prescription drugs for personal use or prescribing prohibited drugs in breach of statutory requirements11, making false statements in medical certificates12, drug addiction affecting patient safety13, drug abuse and drug trafficking, may all be indicative of “bad character”.

Why does a doctor, who has always been of good character, become of essentially irredeemably blemished moral character, as a result of one mutually caring perfectly lawful relationship?

I suspect that most of us would prefer to see a doctor whose care is of a high standard, even if he/she is in a relationship with a former patient, than a doctor whose care is of a lower standard.

Rationale for the current practice.

Because I was questioning the accepted views of the health professional bodies, I decided to look at the theory underpinning the current approach. I was told that Professor Gabbard of Baylor College of Medicine, Houston, Texas, was the leading expert in the field.14

Professor Gabbard, states, “Sexual contact between a clinician and patient is never acceptable under any circumstances.” He applies the same rule to former patients, although he acknowledges that not all bodies agree with this. I find his reasoning unpersuasive and very focused on his particular psychiatric theory. He claims , “ The clinician is equated with a parent in the transference and the relationship is symbolically incestuous “. He adds, “ It is an abuse of power because the professional is being paid to help the patient with professional difficulties.”

But, the professional may have already helped the former patient, before the sexual contact started, and in some situations, such as the nurses who married their patients, there may continue to be benefit to the patient from the professional’s skills, knowledge and understanding, when the relationship changes from a professional to a personal one.

Gabbard adds, “ It is a frank exploitation in the sense that the clinician’s needs are placed ahead of the patient’s needs.” He doesn’t recognize that the relationship may fulfill the needs or wishes of both patient or former patient and clinician.

Gabbard disagrees with those who argue that if therapist and patient marry, exploitation is very difficult to substantiate.

Dr Ofer Zur, a psychologist and psychotherapist, has published a paper challenging the assumptions as to therapists’ power made by Professor Gabbard and others.15He writes:

The error is to see the power differential as always relevant- as if all clients are the same and all therapists-client relationships identical”.

He illustrates his position with the following entertaining apocryphal account :

“A few years ago I consulted with a high-strung successful, ex-beauty queen. She was also an educated attorney, well read in psychology relating to the challenges of her arrival at middle age and motherhood, and was interested in the subject of power. One day she said to me:

You shrinks seem to think you are these powerful beings. Your literature paints images of clients as helpless, vulnerable, pliable, weak creatures at the mercy of you omnipotent people. Your ethics texts make it sound like you can snap your fingers and I will jump into your bed. Well, let me tell you something about power. With my J.D. and Ph.D., I am better educated than you, which gives me more power than you have with your Ph.D. As far as I can tell, I am much wealthier than you, which gives me another form of power over you. I have professionally achieved more than you have, which gives me another power advantage. Yes, you know more than I do about psychology, but this does not necessarily count for much. Additionally I am an attractive woman, which gives me the undeniable power that sexy women have over men. Finally, I can destroy your career with one call to your licensing board. So much for your illusion of power.”

Zur explains that concern about sexual exploitation by predatory therapists led to the development of codes of conduct in the US, after a number of highly successful malpractice suits against prominent psychologists and psychiatrists in the late 1970’s and 1980’s.

Conclusion

I suggest that current thinking has swung too far in totally prohibiting sexual relationships, even with former patients, for all doctors, nurses and other health professionals. I am concerned by decisions which regard any such relationship, by definition, as evidence of morally flawed character leading to the imposition of lengthy periods of cancellation or suspension. This is particularly the case where the health professional does not express sufficient remorse about entering into the relationship, even where it betrayed no trust, broke no law and brought happiness to both parties.

In contrast, other clearly morally flawed, criminal, negligent and incompetent conduct is treated less severely. Quite apart from the fact that an open, committed, loyal and faithful relationship to one former patient reduces the alleged danger to other patients, I believe that the community disapproves of incompetent or careless or predatory health professionals16, rather than of those who enter into committed relationships with former patients. I cannot see what was wrong with Ms W’s relationship with her lawyer ex-patient, and neither could he. In what way, other than being contrary to current guidelines, was it different from the similar situations I described?

Ms W was barred from reapplying for registration for 3 years for no reason other than that relationship. How can that be reconciled with a 3 months suspension and conditions upon registration ordered for a nurse who pleaded guilty to criminal charges in relation to using and trafficking drugs?17 Or, with a psychologist who had a 3 year “intimate and abusive relationship” with a drug addicted and mentally ill former patient, and had his registration cancelled and was not allowed to reapply for 15 months? 18 In another matter19 a male nurse, who had been convicted of two counts of aggravated sexual assault upon his 13 year old step daughter, was suspended for 9 months and subsequently found not unfit in the public interest to practice as a nurse. He was genuinely regretful about his conduct, as well he might have been. The Tribunal found that the offences resulted from “ a temporary defect of character”, but that by the time of hearing his good character had been “restored”.

So in this strange world of professional regulation, aggravated sexual assault of a child gives rise to a finding of temporary defect of character, but a sexual relationship between consenting adults is indicative of an irredeemably morally flawed character.

Disciplinary bodies need to get over their automatic reaction of shock and horror at the existence of relationships with former patients, and instead look at the particular circumstances of each situation to see whether there was in fact any exploitation, breach of trust or conflict of interest.

Editorial Note: these were complex and detailed cases. Full details can be found at: http://www.austlii.edu.au/au/cases/nsw/NSWNMT/2012/17.html and http://www.austlii.edu.au/au/cases/nsw/NSWNMT/2013/2.html

Notes

[1] Craig v Medical Board of South Australia (2001) 79 SASR 545, Morris v Psychologists Registration Board of Victoria (unreported, Supreme Court of Victoria 19 December 1997)

[2] Removal of doctors from practice for professional misconduct in Australia and New Zealand Elkin, Spittal, Elkin and Studdert BMJ Qual Saf published online July 21 2012.

[3] Re Dr Honey [2006] MPBV 14.

[4] s 3(1)(a) (b) and (c) of the Medical Practice Act 1994

[5] Honey v Medical Practitioners Board of Victoria [2007] VCAT 526

[6] Re A Medical Practitioner [1995] 2 Qd R 154 at 163-166

[7] HCCC v Waddell (No 2) NSWNMT 27 March 2013

[8] Britt, R. Stories of Love and War (2010) New Holland, Sydney.

[9] The Age (18 August 2012 )

[10] Removal of doctors from practice for professional misconduct in Australia and New Zealand Elkin, Spittal, Elkin and Studdert BMJ Qual Saf published online July 21 2012.

[11] See eg New South Wales Medical Board Re Dr SL 3 December 2008-reprimanded and obliged to work under conditions

[12] See eg New South Wales Medical Board Re Dr BKLL- ordered to do a course in medical ethics

[13] Dr P, The Age March 8 2013 p14

[14] Bloch, S & Green, S eds Psychiatric Ethics (OUP Oxford 2009) Chapter 14 ‘Boundary Violations’ by Glen O. Gabbard p251.

[15] Zur, Power in Psychotherapy and Counseling which is subtitled Re-thinking the “power differential” myth and exploring the moral, ethical, professional, and clinical issues of power in therapy. (2010 <www. Zurinstitute.com/power_in_therapy.html>.]

[16] “Board mishandled case of rapist” The Age p6 March 5 2008

[17] Nursing and Midwifery Board of Australia v M [2012] SAHPT 5

[18] The Age May 1, 2013,p13

[19] HCCC V A Nurse [2010] NSWNMT 31