Doctor suspended for sexual relationship with former patient
Dr Hayley Legrand, MBBS, BMedSc, DCH, FRACGP, Medical Adviser and Claims Manager, Avant, VIC
Madhavi Ligam, BA (Hons), LLB, LLM, Senior Associate, Avant Law, VIC
Tuesday, 21 December 2021
First published in September 2019 and updated December 2021
Most doctors are aware of the doctor-patient boundary line and do not cross it. However, some relationships will fall into a grey area and in these circumstances it is easier for a boundary violation to occur inadvertently.
In one such case, a doctor was reprimanded for violating professional boundaries with a former patient after becoming Facebook friends.
The state’s tribunal noted Dr A had initially resisted her attempts to begin a relationship based on his ethical obligations and their age difference. However, he later agreed and terminated the doctor-patient relationship.
Doctor-patient relationship blurs
The patient had been seeing Dr B at the clinic for several years, when she saw Dr A for a mole check. Over the next 18 months, she saw Dr A numerous times until she contacted him on Facebook, admitting her feelings for him. The pair met in person and exchanged text messages, until it escalated into a sexual relationship.
During the 16-month relationship, they continued to communicate through Facebook and text messages. The patient then attended the Emergency Department and asked Dr A if he could recommend a specialist for her. He sat with her in the waiting room but left before she saw the specialist.
The next day, Dr A contacted another colleague requesting a referral for a pathology screen for her. About a week later, he informed her via text that her blood tests were normal.
Patient discloses relationship
She then saw Dr B complaining of stress and disclosed her sexual relationship with Dr A after the conversation turned to her sexual abuse history, marriage breakdown and recent sexual activities. Dr B strongly encouraged her to notify Ahpra, however she declined. He then advised he was obliged, under the mandatory reporting guidelines, to notify Ahpra.
A few days later, she texted Dr A to apologise for disclosing their sexual relationship to Dr B. Upon learning of this, Dr A notified Ahpra. This was followed by Dr B’s notification. Although Dr A did not have an obligation to self-report, if doctors recognise they have crossed a boundary of the doctor-patient relationship, they should seek legal advice about making a report to Ahpra themselves.
Finding on doctor’s conduct
In reaching their decision, the tribunal noted Dr A had admitted his misconduct and Dr B’s decision to mandatory report the boundary transgression was appropriate in the circumstances.
The tribunal considered whether Dr A’s boundary violation constituted unprofessional conduct or the more serious, professional misconduct.
The Medical Board of Australia’s (the Board’s) submission highlighted the Sexual Boundaries: Guidelines for Doctors (guidelines updated 12 December 2018), which states, “It may be unprofessional for a doctor to enter into a sexual relationship with a former patient, if this breaches the trust the patient placed in the doctor.”
When considering these types of allegations, the Board will take into account:
- The duration of care provided by the doctor, e.g. if there had been long-term emotional or psychological treatment provided.
- The patient’s level of vulnerability.
- The degree of dependence in the doctor-patient relationship.
- The manner in which and reason why the professional relationship was terminated and the context in which the sexual relationship was established.
The Board noted a previous decision in which the New South Wales Medical Board had spoken of the absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct.
In this case, the regulator said the evidence supported the conclusion she was a current patient in the sense there was an ongoing medical relationship. The Board also noted that if the patient was regarded as a former patient, his conduct should also be viewed as professional misconduct.
"They met in the context of the doctor-patient relationship in which he held a position of trust and responsibility and their sexual and personal relationship was derived from the doctor-patient relationship and the inherent power imbalance which it contained,” the Board said.
The Board submitted his conduct warranted a finding of professional misconduct. They proposed that his registration be suspended for nine months as a specific deterrent to commit similar conduct in the future and a general deterrent to uphold the profession’s reputation. In addition, conditions on his registration around education and no non-clinical communication were proposed.
In considering the context of the relationship, the tribunal found that although the doctor-patient relationship formally ended before a sexual relationship started, a “substantive doctor-patient relationship was re-established,” due to his subsequent concern for her welfare.
Ultimately, the tribunal found Dr A guilty of professional misconduct.
However, the tribunal rejected the Board’s proposed suspension in favour of a two-month suspension as a general deterrence and to uphold the profession’s reputation. The tribunal found his error fell towards the lower end of the scale and said, “the risk, if any, of him repeating such conduct appears remote.”
"Not suspending in this case has potential to undermine the strong message to the profession of the severe consequences of entering non-clinical relationships with patients, even when on one view, perhaps the doctor’s view, the doctor-patient relationship has ended,” The tribunal said.
Dr A was also ordered to complete an education program including a reflective practice report around maintaining professional boundaries and ethical decision-making.
Maintaining professional boundaries
Although the doctor in this case was not an Avant member, our experience is the regulators universally consider it unethical and unprofessional for a doctor to have a sexual relationship with a patient, regardless of whether the patient has consented to the relationship. Also, the Board has a specific committee to consider allegations of sexual boundary transgressions. In some cases, this committee will impose interim conditions on a doctor’s registration, such as restricting them from seeing patients of a specific gender, until their investigation is complete*.
In this case, despite Dr A formally ending the doctor-patient relationship before entering a sexual relationship, the boundaries had already blurred and the doctor-patient relationship re-established. While there is no set rule for how long a doctor should wait before they engage in a sexual relationship with a patient after the therapeutic relationship ends, there will always be an element of risk of falling foul of the regulator.
Doctors also need to be aware that boundary violations can occur as a result of engaging in a sexual relationship with a person close to their patient, such as their carer, guardian or spouse or the parent of a child patient.
Mandatory reporting sexual misconduct
As stipulated in the Board’s guidelines; “engaging in sexual misconduct in connection with the practice of the profession is ‘notifiable conduct’ under the National Law”.
Under the mandatory reporting guidelines, if a health practitioner or an employer forms a ‘reasonable belief’ that another practitioner has engaged in sexual misconduct with a person under their care or previously under their care (i.e. after the termination of the doctor–patient/client relationship) where circumstances such as vulnerability of the patient results in misconduct, they must report them to Ahpra.
- Boundary violations can have devastating consequences for your reputation and career.
- The Board and regulators are strongly of the view it is unethical and unprofessional for a doctor to have a sexual relationship with a patient, regardless of whether the patient has consented to the relationship.
- Boundary transgressions can occur in relationships with not only patients, but former patients where the doctor-patient relationship has been terminated and circumstances such as vulnerability of the patient results in misconduct.
- If another practitioner forms a ‘reasonable belief’ you have engaged in sexual misconduct, they must report you to Ahpra.
- If you are unsure about making a mandatory report, please call us on 1800 128 268 for expert advice, available 24/7 in emergencies.
Read our factsheet, Boundary issues
*Updated in December 2021
This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.