PHYSICIANPATIENT SEXUAL MISCONDUCT Donna E Stewart MD FRCPC

PHYSICIAN-PATIENT SEXUAL MISCONDUCT Donna E. Stewart, MD, FRCPC University Health Network, University of Toronto Women’s Health Program

INTRODUCTION • Increasing attention to sexual misconduct by health professions. • Provincial Colleges of P. &S. Guidelines. • Recommendation that boundary violations be taught to UG/PG, students. • Teachers may be involved with boundary violations with UG/PG, students. • Role modeling effect on trainees and adverse effect on education.

CPSO • Zero tolerance for doctor-patient sexual abuse • Mandatory loss of license • Can’t reapply for 5 years • No obligation to relicense unless doctor can show low risk to re-offend • Doesn’t matter who initiates it

PHYSICIAN-PATIENT SEXUAL MISCONDUCT • • • What is it? Why does it occur? Who are the offenders? What are the consequences? Post-termination relationships

SEXUAL ABUSE 1. Sexual intercourse or other forms of physical sexual relations between member and patient. 2. Touching of a sexual nature of the patient. 3. Behaviour or remarks of a sexual nature towards the patient.

WHY IT HAPPENS • Situation • Offenders • Patients

SITUATION • Power differential • Vulnerable patient

OFFENDERS • Mentally ill: impaired judgment • Naïve/uninformed: poor training and judgment • Masochistic: “save” patient, risks self • Personality disorder • Love-sick

PERSONALITY DISORDER • Most common • Exploitive • Uses patients for gratification • Calculated • No remorse until caught

LOVE-SICK • • Second most common Personal stress/conflict May be depressed, dissatisfied, empty Increased disclosure Intrusive thoughts of patient Feels “in love” Rationalize/deny

PATIENT • • • Depressed Needy/lonely Previous abuse Psychotic/borderline Low intelligence Exploitative

CONSEQUENCES • Patient • Physician • Profession

PATIENT CONSEQUENCES • • • Lack of treatment for original complaint Mistrust Ambivalence Guilt/shame Isolation/loneliness Somatic complaints Depression/anxiety Post traumatic stress disorder Hospitalization/suicide

PHYSICIAN CONSEQUENCES • Guilt/shame • Loss of: • Respect • Career • Family

CONSEQUENCES TO PROFESSION • Mistrust • Loss of integrity

Maintaining Appropriate Boundaries and Preventing Sexual Abuse CPSO Sept 2008

Background Hippocratic Oath: “…will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons be they free or slaves. ”

Background RHPA (Regulated Health Professions Act) • Any form of sexual relations between physician and patients considered sexual abuse • Patient consent is no defense to sexual abuse • Health Professions Procedural Code: it is an act of professional misconduct for a physician to sexually abuse a patient

Background RHPA defines “sexual abuse” of pt. by a member: • Sexual intercourse or other forms of physical sexual relations between member and pt. • Touching, of a sexual nature, of the pt. by the member • Behaviour or remarks of a sexual nature by the member towards the pt.

Background • Code provides mandatory revocation of physician’s certificate of registration for certain acts of sexual abuse • Sexual abuse that does not involve these acts means penalty at discretion of Discipline Committee • If physician’s registration revoked for sexual abuse, cannot reapply for five years • While not considered ‘sexual abuse’ under legislation, if sexual contact takes place after physician-patient relationship ended, physician may still be found to have committed professional misconduct

Foundation of Physician-Patient Relationship: Trust • When pt. seeks care from physician, pt. trusts physician is professional and will treat them in professional manner • To maintain trust, physician must avoid making or responding to sexual advances

Foundation of a Physician-Patient Relationship: Power • Power imbalance in favour of physician • Pt. provides information of sensitive nature about self/family members • Physician conducts intimate physical examinations • Transfer of information and physical examination one-sided, from pt to physician • Pt. may feel particularly vulnerable if: unwell, in pain, worried or afraid • Does not speak same language • Undressed or exposed

Foundation of a Physician-Patient Relationship: Principles 1) Physician, being in a position of trust and power, has a duty to act in the pt’s best interest 2) Physician must establish and maintain appropriate professional boundaries 3) Sexual activity and ‘romantic interactions’ interfere with goals of physician-patient relationship and may obscure physician’s objective judgment concerning pt’s health care

Foundation of a Physician-Patient Relationship: Principles 4) Physician sexual misconduct is detrimental to the physician-patient relationship, harms individual patients and erodes the public’s trust in the medical profession 5) Patients must be protected from sexual abuse by physicians

Sexual Relationships Prohibited During the Physician-Patient Relationship • A physician must not become sexually involved with pt. • Always physician’s responsibility to ensure appropriate boundaries maintained- regardless of pt’s behaviour

Guidelines • Physician must not make sexual advances towards pt nor respond sexually to any form of sexual advance made by pt. • Physician should explain scope and reasons of examination to pt. • Presence of 3 rd party during intimate examination may contribute to pt. and physician comfort • Pt. should be given option to have 3 rd party present • Supportive words/discussion may be preferable to non-sexual and non-clinical touching of pt. to avoid misinterpretation

Determining Whether a Physician-Patient Relationship Exists • Relationship estab. by nature and frequency of the treatment provided whether: on-going treatment relationship, physician bills for services or any other relevant factors • Factual inquiry to determine whether physicianpatient relationship exists, and when it ends • Where a physician in doubt to whether a physician-patient relationship has terminated, (s)he should refrain from any social/sexual/business relationship with the pt. until they seek advice

Sexual Relationships After Termination of Physician-Patient Relationship • Ending physician-patient relationship does not eliminate possibility that sexual contact between a physician and former pt. may be considered professional misconduct • Continuing trust, knowledge or influence derived from the previous professional relationship • Physician’s responsibility to ensure termination of physician-patient relationship is communicated to pt. and documented • Alternative services should be arranged or pt. should be given reasonable opportunity to arrange alternative services

Propriety of a Sexual Relationship between Physician and Former Patient Consider: • Length and intensity of former professional relationship; • Nature of pt’s clinical problem; • Clinical care provided by physician; • Extent which the pt has confided personal/ private information to physician; and • Vulnerability pt has in physician-patient relationship

Sexual Relationships after Termination of the Physician-Patient Relationship • When physician-patient relationship involves significant component of psychoanalysis or psychotherapy, sexual involvement with pt. is likely inappropriate any time after termination • However, if physician saw pt. 1 or 2 occasions to provide routine clinical care, it may not be inappropriate to have a sexual relationship with former pt. later

Sexual Relationships after Termination of the Physician-Patient Relationship • Physician has ethical obligation not to exploit trust, knowledge and dependence that develops during physician-patient relationship • Should act cautiously, making sure to consider potentially complex issues • Physician should ensure that former pt. has good understanding of dynamics of physician-patient relationship and boundaries applicable to that relationship

Relationships Between Physicians and Persons Closely Assoc. with Patients • Sexual relationships between physicians and individuals who closely associated with physician’s pt’s may also raise concerns about breach of trust and power imbalance • Risk of exploitation can detract from goal of furthering pt’s best interests • Potential of affecting objectivity • These individuals play important role in fiduciary relationship between physician and pt. • Physician should maintain same professional boundaries as he/she would with a pt.

Relationships Between Physicians and Persons Closely Assoc. with Patients Physician considering entering into a sexual relationship with a person closely associated with a pt should weigh: the nature of the pt’s clinical problem, type of clinical care provided by the physician, length and intensity of the professional relationship, degree of emotional dependence, and the degree to which the pt. is reliant on the person closely associated

Mandatory Duty to Report • Physician must report if he or she has reasonable grounds, obtained in the course of practicing the profession, to believe that another member of the same or different college has sexually abused a pt

Guidelines for Maintaining Professional Boundaries 1) Avoid physical contact with a pt (except what is required to perform medically necessary examinations) 2) Use gloves when examining genitals 3) Show sensitivity and respect for the pt’s privacy and comfort at all times: avoid watching pt dress/undress, provide privacy and appropriate covers/gowns 4) Avoid any behaviour/remarks that may be interpreted as sexual by pt

Guidelines for Maintaining Professional Boundaries 5) Be aware and mindful of pt’s particular cultural/religious background 6) Do not make sexualized comments about pt’s body or clothing 7) Do not criticize or comment unnecessarily on pt’s sexual preference 8) Do not ask or make comments about sexual performance except where examination or consultation pertinent to issue of sexual function/dysfunction

Guidelines for Maintaining Professional Boundaries 9) Do not ask details of sexual Hx/sexual behaviour unless related to purpose of consultation or examination 10) Be cognizant of social interactions with pt’s that may lead to romantic involvement 11) Do not talk with pt’s about your own sexual preferences, fantasies, problems, activities or performance 12) Learn to control therapeutic setting and detect possible erosions in boundaries

TEACHER/LEARNER HARASSMENT/MISTREATMENT • Students • Graduate students • Residents, Fellows • Post docs • Anyone you supervise • ? Co-worker

TYPES OF HARASSMENT • • • Harassment Sexual harassment Discrimination Negative environment Systemic harassment/discrimination

HARASSMENT One or a series of vexatious comments or conduct related to one or more of the prohibited grounds that is known or might reasonable be known to be unwelcome, unwanted, offensive, intimidating, hostile or inappropriate.

EXAMPLES INCLUDE: Gestures, remarks, jokes, taunting, innuendo, display of offensive materials, offensive graffiti, threats, verbal or physical assault, imposition of academic penalties, hazing, stalking, shunning or exclusion related to the prohibited grounds.

ONTARIO HUMAN RIGHTS CODE PROHIBITED GROUNDS: Race, ancestry, place of origin, colour, ethnic origin (including language, dialect or accent), citizenship, creed, sexual orientation, disability, age (1865), marital status, family status, the receipt of public assistance, record of provincial offenses or pardoned federal offenses.

SEXUALLY HARASSING BEHAVIOURS • • A wide range of behaviours Perceptions may vary Sexually offensive stories or jokes Sexist remarks about appearance, behaviour or career choice • Disregard for education needs of either sex • Flirting, staring, sexual innuendo, questions, rumours, touching • ±Associated with academic rewards or threat

SEX AND THE LEARNER-LEARNER RELATIONSHIP IN MEDICINE • The degree of power in teachers’ relationships with learners are unequal-teachers can open or close doors to learners’ careers via grades, recommendations and referrals. • Most offenders are men with repetitive behaviours involving a number of women learners over time. • Older professionals who abuse power and prestige or younger teachers who underestimate their influence. • Medical teachers may be prone to burn out, mid-life crises, family problems and marital difficulties. • May start as friend or helper then progress to sexual J Gen Int Med 1992; 7: 443 -447

THE PROFESSIONAL SETTING • • Emotional setting – life/death, naked bodies Leads to intimacy between teacher-learner Sleep deprivation, fatigue, close contact Blurred boundaries Authority, power, loneliness, admiration, gratitude May weaken objectivity Breach in trust may undermine educational process

MEDICAL STUDENT PERCEPTIONS OF MISTREATMENT/HARASSMENT • • 581 senior medical students at 10 schools (59%). Public humiliation-86. 1%(belittled, crude, yelled). Someone else taking credit for work-53. 5%. Threatened with unfair grades-34. 8%. Threatened with physical harm-26. 4%. Sexual harassment-55%-mostly female students. Negative comments on medical career-91%. No mistreatment at all-3. 4%. Baldwin et al. West J Med 1991; 155: 140 -145

PREVALENCE • 1990 AAMC Survey: 60% of female medical graduates reported sexual harassment or discrimination in medical school. • Usually clinical faculty or supervising housestaff. • 90% do not report or complain.

HARASSMENT IN MEDICAL TRAINING Surveys of 133 medical residents (UCSF). Asked if sexual harassment during medical school or residency: • Frequency and type of harassment (list) • Effect of harassment • Reporting and factors effecting reporting Komaromy et al, NEJM 1993; 328: 322 -326

WOMEN • • 73% reported SH-more often in medical school Usually involved male harasser Usually an attending physician or other physician Three times nonphysical as physical harassments 3 felt SH interfered with ability to work 16 felt intimidating, hostile or offensive setting 2 felt uncomfortable only 3 felt no negative effects

MEN • 22% reported SH-usually in residency • Harassers-other men (50%), nurses, no attending • Usually nonphysical • Intimidating/hostile setting=6 • Interfered with work=1 • No negative effect=6

SOURCES OF MISTREATMENT Residents (85%) Attending physician (79%) Nurses (66%) Patients (60%)

CONSENSUAL SEXUAL CONFLICT BETWEEN TEACHERS-LEARNERS • 5% of psychiatric residency programs • Many felt coerced to some degree at onset and sense of coercion increased with time • Created ethical and personal problems • Affected career plans, ability to relate with other teachers • Teacher may be evaluating, promoting, or recommending • Unequal power-potential exploitation • AMA Committee on Ethical Affairs-recommends that university policies pertaining to sexual conflict should specifically address “consensual relationships”

EFFECTS OF MISTREATMENT • • • Education in an insensitive or punitive setting Compromises the learning environment Impairs wellbeing, emotional development Establishes poor professional role modeling Impairs patient care May result in more patient abuse Increase in cynical attitudes in students Decrease in humanitarian attitudes Effects on individual students, student-teacher relationships and the profession

CONSEQUENCES FOR LEARNERS • • May avoid specific teachers, classes or careers Change school or career plans Interfere with learning opportunities and discussions Evaluation and advancement may be negatively affected • Learner health may suffer: guilt, shame, doubt, confusion, home life • Role modelling effect on learners in their dealing with patients and other students

EFFECTS OF SEXUAL HARASSMENT • • • Distraction from education Patient care may suffer Alienation from training-dropout Deter from specialties or leadership positions “Transgenerational legacy”

SEXUAL HARASSMENT PREVENTION • • • Education about sexuality and communication Strong institutional policy Powerful and accessible coordinator Heighten awareness, establish standards Trainees taught to recognize behaviour they should not have to tolerate, to give prompt response and seek help if it persists • Complaints should be confidential but reports of sexual harassment and actions taken are helpful • Fair, unbiased investigation of complaints

WORKSHOP

PROFESSIONAL PERSONAL • Paid • Not Paid • Time limited • May be forever • Structured • Spontaneous • Power differential • More equal power • Greater responsibility • More equal responsibility

PROFESSIONAL PERSONAL • Requires preparation, orientation, training • Does not • Contractual agreement • Personal choice • Can I work with this person? • Do I like this person?

TOUCHING • What kind is okay? • How often? • What if patient asks?

LANGUAGE • Should you comment on appearance? • Tell a patient “I like you”? • Tell a patient “you are special”?

MEETING PLACE AND TIME • • Appropriate places? Appropriate times? Duration? Frequency?

SELF-DISCLOSURE • What can you reveal? • What shouldn’t you reveal?

SOCIALIZING • When is it appropriate? • When is it inappropriate?

CONSENT • Can a patient give informed consent? • What if the patient wants the relationship?

RELATIONSHIPS WITH RELATIVES • Is it okay? • What are the risks?

BOUNDARY WARNINGS • Always giving the last appointment • Self-disclosure • Feeling in love • Intrusive thoughts about the patient

BOUNDARY WARNINGS • Thoughts of meeting outside the office • Special treatment • Activities you wouldn't tell others

INTIMIDATION • What power do you have? • Can students say no?

DATING • Can a student say no? • What are the risks?

ATMOSPHERE • Are the students comfortable with your humour? • Do you establish a hostile atmosphere? • How does a student deal with harassment?