Trust in the doctor-patient relationship is fundamental to good medical practice. On 12 December 2018 the Medical Board released revised Guidelines to assist doctor’s in understanding the various types of behaviours that can constitute breaches of sexual boundaries and place their registration at risk.
MIGA was invited to comment on the proposed guidelines, and a range of our recommended changes and clarifications have been incorporated in the final version.
Breaches of sexual boundaries include:
- Engaging, or attempting to engage, in a sexual relationship (irrespective of patient consent) with a current patient
- Conducting a physical examination that is not clinically indicated or where the patient has not consented to it
- Behaviours of a sexual nature including making sexual remarks, humour or innuendo, flirtatious behaviour, touching patients in a sexual way, engaging in sexual behaviour in front of a patient or using words which might reasonably be interpreted as intended to arouse or gratify sexual desire
- Seeking sexual history or preference information when it is not clinically relevant and without explaining why it is necessary to discuss these matters
- Sexual exploitation or abuse, which is using the power imbalance to abuse or exploit the patient’s trust or vulnerability for sexual purposes
- Sexual harassment, which is any unwelcome sexual behaviour likely to offend, humiliate or intimidate a patient; and
- Sexual assault.
Other things which may breach sexual boundaries include:
- Engaging in a sexual relationship with a former patient or individual close to a patient under the doctor’s care (e.g. spouse, parent, family member, carer or guardian)
- Asking a patient to undress more than is necessary or failing to provide a privacy screen/cover.
Doctors need to be alert to warning signs which may indicate that boundaries are being or about to be crossed. Potential signs may include:
- A doctor revealing intimate details about their life
- Daydreaming or fantasising about a patient
- Doctors and patients extending social invitations
- Patient requests for non-urgent appointments at unusual hours or locations when other staff might not be present
- Patients behaving overly affectionately or asking personal/intimate questions
- Patients attempting to give gifts.
If a doctor recognises any inappropriate feelings or behaviour either from themselves or the patient, the doctor should try to re-establish boundaries and seek advice from an experienced and trusted colleague. If there’s a possibility boundaries could be breached or the doctor’s ability to remain objective is compromised, the doctor should transfer care to another practitioner bearing in mind the need to do this sensitively so a vulnerable patient is not further harmed.
Former patients and individuals close to the patient
Even though a patient may no longer be under your care, there remains the possibility that a power imbalance could continue long after the professional relationship has ended. Likewise, a relationship with an individual close to the patient may affect the judgement of both the doctor and individual potentially compromising the patient’s healthcare. When considering if a doctor used their professional relationship to engage in a sexual relationship with a former patient or person close to the patient, the following factors will be considered:
- The duration, frequency and type of care provided by the doctor
- The degree of the other person’s vulnerability
- The extent to which the patient is reliant on an individual close to them
- The extent of the patient’s dependence in the doctor-patient relationship or emotional dependence on the doctor by an individual close to the patient
- The importance of the patient’s clinical treatment to the patient and individual close to them
- The use of knowledge obtained or influence gained as the patient’s doctor, to pursue a sexual relationship with an individual close to the patient
- The time elapsed since the professional relationship ended
- The manner in which and reasons why the professional relationship ended or was terminated; and
- The context in which the sexual relationship started.
Observer or Chaperone
Doctors have the right to choose to have an observer present during an intimate examination or a consultation generally. Conversely, a patient has the right to refuse an observer, and in that case the doctor can either proceed without an observer or suggest another doctor perform the examination or consultation.
In an era where individuals can be readily contacted on social media or other digital communication, it is important for doctors to put in place clear boundaries when a patient attempts to communicate with them about matters outside the professional relationship. The doctor should politely decline to engage with the patient and direct them to their usual, professional communication channels.
Obligations to report allegations of sexual misconduct
Under the National Law, ‘notifiable conduct’ includes engaging in sexual misconduct in connection with the practice of the profession. If a health practitioner, employer or education provider holds a reasonable belief that a health practitioner has engaged in sexual misconduct in connection with their practice of medicine, there is a mandatory obligation to notify AHPRA.If you have any concerns about the issues raised in this article, please contact the Claims & Legal Services team for further information and support.