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Why sexual advances towards a patient are never OK, even if ‘consensual’

In a recent independent review, I recommended chaperones no longer be used as an interim protective measure to keep patients safe while allegations of sexual misconduct by a doctor are investigated. The Conversation

The review was commissioned by the Medical Board of Australia and the Australian Health Practitioner Regulation Agency (AHPRA), following media reports that a Melbourne neurologist was facing criminal charges for sexually assaulting a patient.

Dr Andrew Churchyard was allowed to keep practising after the alleged sex abuse. But this was subject to a condition on his registration that an approved chaperone be present for all consultations with male patients.

The Medical Board of Australia and AHPRA have accepted my recommendations that the current system of using chaperones is outdated and paternalistic. In future cases where a doctor is accused of sexual misconduct, and interim protection is considered necessary, restrictions may be imposed after an assessment of the allegations by a specialist board committee.

They will include prohibitions on contact with patients of a specified gender, prohibitions on any patient contact, or suspension from practice.

Sadly, cases of sexual misconduct are likely to continue. It’s important patients know the warning signs and where to seek help if they suspect their doctor is behaving inappropriately.

Ethical boundaries

The Hippocratic Oath states that in their professional lives, doctors will:

abstain from all intentional wrongdoing and harm, especially from abusing the bodies of man or woman.

The oath frames sexual contact with patients as a type of intentional harm that is forbidden. Much has changed in medical practice since the days of the ancient Greeks, but Hippocrates’ clear-eyed prohibition on sexual contact with patients, and categorisation of such conduct as a form of abuse, remains apt.

It seems likely that the disciplinary findings and criminal convictions that come to media attention are only the tip of the iceberg of doctor-patient sexual contact.

International studies indicate that the prevalence of sexual boundary violations by health practitioners may be as high as 6 to 7%. A Canadian survey of 8,000 members of the public in 1992 found that 4.1% of respondents (4.7% of women, 1.3% of men) reported touching of a private body part by their doctor “for what seemed to be sexual reasons”.

During my review, I heard first-hand accounts of the harm sexual contact from their doctor causes patients. The harrowing stories from abused patients and their families confirm what the literature says.

Patients who are sexually exploited by their doctor suffer from major depressive disorders, suicidal and self-destructive behaviour, and relationship problems. They experience feelings of shame, guilt, isolation, poor self-esteem and denial. They may also delay seeking medical help.

Their trust in their doctor, and in the consultation room as a safe place to share problems and seek advice, is shattered.

Consensual relationships?

The impact on patients who have been indecently assaulted – by being subjected to unnecessary and inappropriate clinical examinations – has much in common with the effects of sexual abuse on victims in other, non-clinical contexts.

But patients who engage in “consensual” sexual relations with their doctor also suffer harm. Issues of vulnerability, transference and breach of trust are well recognised for current patients. Yet even former patients may be harmed by entering a sexual relationship with their former doctor.

Critics of a “zero tolerance” approach to doctor-patient contact suggest notions of vulnerable patients being exploited by their doctor are old-fashioned. They argue that a mature, consenting adult should be free to enter a consensual sexual relationship with their doctor, once the doctor-patient relationship has ended. Such views are misguided.

It is one thing to accept that a doctor may later become romantically involved with a patient after fleeting professional contact. But if the doctor-patient relationship has endured for some time, and has involved confidential disclosures and advice, any subsequent sexual relationship risks harm to the patient, and damaging professional consequences for the doctor.

Warning signs

It may be very difficult to discern whether an examination of the genitalia is warranted. For all the rhetoric about empowered patients, when we are unwell and consulting a doctor (especially someone new) for diagnosis and treatment, it can feel awkward to ask whether it is really necessary to disrobe for a full examination.

During my review, one patient recalled seeing a specialist about his severe migraines. He thought a full body examination was unusual, but said: “How was I meant to know what was normal?”

Ideally, patients will know that it’s always ok to ask why an examination or procedure is necessary, to request to have a support person present, and to raise any concerns with a practice manager after a consultation.

Patients concerned that their doctor may have acted improperly can contact support services such as CASA House in Victoria, which provides information and counselling to victims of sexual assault.

Patients should be alert to signs that their doctor’s interest is more than professional. Scheduling appointments for the end of the day, asking personal questions unrelated to the presenting problem, and providing their mobile number may all be warning signs.

Doctors should always be willing to question their own motives and, if in doubt, to seek advice from a professional mentor.

Sexual advances or sexual assault by doctors causes significant harm. A strict “zero tolerance” approach protects patients and doctors.

Ron Paterson, Professor of Health Law and Policy, University of Auckland

This article was originally published on The Conversation. Read the original article.

Chaperones scrapped for doctors facing sexual allegations

Doctors will no longer be allowed to practice with a chaperone while they are the subject of an investigation for sexual misconduct.

Instead, practitioners under investigation will be subject to gender-based restrictions, restrictions on patient contact, or will simply have their licence suspended.

The changes follow recommendations from an independent report into the chaperone system, which AHPRA and the Medical Board of Australia have said they will implement in full.

The report, authored by Ron Patterson, a Professor of Law at Auckland University, found the use of chaperones while allegations of sexual misconduct are being investigated or as a protective measure in the disciplinary process “does not meet community expectations and does not always keep patients safe”.

Professor Paterson recommends:

  • No longer using chaperones as an interim restriction while allegations of sexual misconduct are investigated;
  • Establishing a specialist team within AHPRA working with the MBA to improve handling of sexual misconduct complaints;
  • Strengthening monitoring and providing more information to patients in the exceptional cases where chaperone conditions remain in place.

Professor Paterson said that despite the widespread use of chaperones in many countries, “I was left in no doubt that there are better ways to protect and inform patients when allegations of sexual misconduct are made about a health practitioner”.

In a media statement, AHPRA has said it will strengthen its chaperone protocol to reflect all the report’s recommendations.

Dr Joanne Flynn, chair of the Medical Board of Australia, said the report makes a compelling case for change.

“We’ve been told very clearly that the chaperone conditions don’t do the job we need them to do and don’t match current community expectations,” she said. “We are making big changes to the way we deal with concerns about sexual boundary violations.”

The report was commissioned following the case of Melbourne neurologist Dr Andrew Churchyard, who allegedly continued to molest patients while already under investigation and with chaperone conditions on his practice.

In at least one case, Dr Churchyard allegedly molested a patient behind a curtain while a chaperone was present in the room.

There are currently 39 doctors in Australia working with a chaperone restriction, all of whom are in private practice. Chaperone conditions remain in place for an average of almost two years.

Under the current rules, doctors are not obliged to inform their patients that they have restrictions on their practice, although the information is available on the AHPRA registry.

You can read the report here.