Doctors, psychologists, sex and former patients

In Re a Psychologist [2009] TASSC 70, the Supreme Court of Tasmania quashed a decision of the Psychologists Registration Board of Tasmania to suspend a psychologist for 6 months for entering into a sexual relationship with a former patient fewer than 2 years after the end of the therapeutic relationship.  In fact he married her.  A couple of newspaper articles are here and here.

The Supreme Court quashed the decision because the Board switched from considering these allegations as a breach of a code of conduct to considering them as an allegation of professional misconduct at common law without adequately bringing the switch to the unrepresented psychologist’s attention.  Also because the reasons were inadequate.  Justice Blow engaged in a mini-review of recent cases about health professionals and sex with former patients:

’54 The relevant considerations were discussed by Harper J in Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997, BC9707354. At BC15 – 17, his Honour said the following as to the question of whether a psychologist’s conduct amounted to misconduct:

“In my opinion the fact that the professional relationship had ended at the time the sexual relationship commenced is not of itself determinative. The appropriate test must be whether a sexual relationship would exploit the client or put the health of the client at risk. …In my opinion to confine the concept of exploitation to duress, manipulation, coercion or pressure would be to abrogate the therapist’s responsibility to make a professional decision to refrain from submitting to the wishes of the client or even a former client. A member of a profession who for purely personal reasons accedes to a client’s request, and thereby obtains a personal benefit, knowing that to do so will jeopardise the client’s objectively and professionally ascertained interests, exploits the professional relationship, and therefore exploits the client: on this hypothesis, the opportunity to obtain the personal benefit arises from the fact of the professional relationship. A psychologist who enters into a sexual relationship with a client or former client at that person’s request, and who does so when he knows or ought to know that he is thereby putting the other’s health (mental or otherwise) at risk, acts unprofessionally. This is particularly so where transference may still operate so as to induce the client to seek the intimacy. It seems to me that consent in these circumstances cannot be an answer to an allegation of misconduct.”

55 There are a number of relevant Australian cases concerning relationships between medical practitioners and former patients. The medical profession does not have a firm rule prohibiting all sexual relationships with former patients, nor does it have anything like the inflexible two-year rule now applicable to psychologists. I know of no other profession that has such a rule, and I suspect that only the priesthood has a stricter rule.

56 In Re a Medical Practitioner [1995] 2 Qd R 154 at 162, Dowsett J, constituting Queensland’s Medical Assessment Tribunal, referred to a number of factors relevant to the evaluation of impropriety when there is a complaint about a sexual relationship between a doctor and a patient. His Honour said that “modern concepts of egalitarianism militate against assessing impropriety upon the assumption that the medical practitioner is automatically in a superior social or economic position”, and that “it is inappropriate to assess impropriety upon the assumption that a woman is socially, morally or intellectually less well-equipped to deal with the emotional aspects of life than is a man.” At 163 – 164, his Honour listed “a number of themes running through the traditional approach to misconduct of this kind by medical practitioners”, including the following:

“1 The practice of medicine involves intimate access to the body and psyche of the patient.

…

3 A medical practitioner is therefore in a position of special trust toward and power over a patient.

4 The need for medical care and the sympathetic way in which such care is likely to be provided render the recipient at risk of becoming emotionally involved with and/or dependent upon the provider.

…

6 A medical practitioner must be aware of these risks and ensure that his or her conduct does not aggravate the position, that no advantage is taken of any such susceptibility, and that there is no abuse of the practitioner’s special position.

7 A medical practitioner who becomes aware that a patient has developed a romantic attachment to him or her must take steps to sever that attachment. Normally, the doctor and patient relationships should be terminated.

8 A medical practitioner who becomes romantically attached to a patient should realise that his or her own objectivity and capacity to provide appropriate treatment have been impaired and terminate the doctor and patient relationship.

9 Where the romantic attachment is solely on the patient’s side, whilst it will be unwise to continue treating the patient, it will not necessarily be professional misconduct to do so, save where the efficacy of continued treatment may be impaired by the attachment or where the patient may suffer further harm.

10 Where there is romantic attachment on the part of the practitioner, it may be professional misconduct not to terminate the doctor and patient relationship, even in the absence of any acts of intimacy. Each case must be considered on its merits. The considerations referred to in paragraph 9 will again be relevant.

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.

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18 The gravamen of this misconduct is breach of trust, misuse of power and exploitation of vulnerability. Sexual misconduct is only an example of such misconduct.”

57 In A Practitioner v The Medical Board of Western Australia [2005] WASC 198, Commissioner K Martin QC said the following at pars28 – 30:

“28 … a former patient’s interests are as well capable of being inappropriately jeopardised, if a medical practitioner in some way exploits the professional credibility established by a prior therapeutic relationship in order to pursue personal ends or objectives, to the prejudice of the former patient. Moreover, it would be intolerable if a medical practitioner were able to cynically terminate an existing therapeutic relationship with an eye to the future, so as to pursue a personal objective with a patient, once the shackles of the professional relationship had been removed.29 A second general observation I make is that many of the disciplinary cases which have gone on further to be decided by courts, concern sexual relationships developed consensually as between a practitioner and a patient, or, as between a medical practitioner and a former patient. In those sexual relationship cases, there is an obvious concern that a patient’s interests may have been compromised arising out of the imbalance of power between the medical practitioner and the patient. The potential for the will of the patient in that situation to be unwittingly overborne as a result of undue influence, is great.

30 Observations have been made concerning a particular susceptibility of patients of medical practitioners in the fields of gynaecology and psychiatry, where the intimacy of the professional relationship is such that there is grave risk that a patient’s interests may be compromised, if the professional relationship develops towards a personal relationship. A patient may not realise for many years after the establishment of a personal relationship, that in fact they have been subjected to influences which have compromised their ability to actually make a free choice concerning the entry into and maintenance of the personal relationship. The term ‘exploitation’ is frequently used in this context to indicate that the practitioner has taken advantage of a power imbalance arising as a result of the professional relationship, to the detriment of the patient’s interests, either short term or long term.”

58 In RJT v Nurses’ Board of Victoria [2000] VSC 498, Nathan J said at par44:

“There is no need for contemporaneity between the practitioner/patient relationship and the conduct complained of, for it to amount to unprofessional behaviour. A medical practitioner may abuse his or her professional position by exploiting the relationship for the purposes of sexual gratification and thus act unprofessionally.”

59 Cato v Medical Board of Victoria, unreported, Supreme Court of Victoria, 21 June 1985, BC8500201 is an example of a case in which sexual activity with a former patient was held not to amount to “infamous conduct”. An allegation that the doctor had had sexual intercourse with a patient during a home visit was not proven. Although the sexual relationship had commenced within days after the home visit, Beach J regarded the making of arrangements to meet socially as terminating the doctor/patient relationship. There was no suggestion that the doctor had taken advantage of a power imbalance or anything of that nature. He was a general practitioner, who had met the patient when she had a brief viral illness.

60 In the light of these authorities, it is clear that the psychological consequences of the appellant’s relationship with the complainant and his attitude in relation to such consequences were relevant matters for the disciplinary committee and the Board to take into account when evaluating the appellant’s conduct and considering what disciplinary orders, if any, should be made. However the disciplinary committee found out very little about those aspects of the couple’s relationship during its investigation, and was absolutely silent as to those subjects in its report to the Board.’