Sexual misconduct 02

Sexual Boundaries in the Doctor/Patient Relationship - the Medical Council's Evaluation and Action Plan

March 2002   Women's Health Watch 

Jo Fitzpatrick examines the long-awaited result of the Medical Council's revision of its sexual abuse policy, prompted by the case of Dr Morgan Fahey.

The Medical Council is engaged in an ongoing review of policy and process with respect to sexual boundaries in the doctor/patient relationship. Women's Health Watch (December 2001) outlined the key concerns raised in response to the discussion document released by the council.
In August 2000, lawyer Clare Bear was employed by the council to evaluate current policy and process and suggest options for improvement and change. The result is - Sexual Boundary Policies and Processes: Evaluation and Action Plan released in February 2002.
The evaluation is a thoughtful discussion of the issues with over 150 specific recommendations for change in 26 different areas. The action plan is the Medical Council response to these recom-mendations. Comments in the council response section are generally supportive but are not specific which makes it difficult to know the extent and nature of the action planned. Many of the more difficult areas have been referred to the council's Issues Committee for further consideration. In a recent issue of New Zealand GP(1), Dr Tony Baird, president of the Medical Council, points out it is a'report to the council, not by it, and that the council will be looking in detail at its recommendations.'
The Evaluation and Action Plan deals specifically with sexual boundary issues. The term'sexual boundary' has replaced earlier terms such as sexual abuse, sexual impropriety, sexual transgression and sexual violation. The intention is to include all of these and establish a'boundary' which must not be crossed. The idea is laudable but, in practice, takes away the clear implication of impropriety inherent in the terms it replaces. Unless both doctor and consumer have a clear common understanding of where the boundary lies, then inevitably, difficulties will arise. The report itself uses the term without definition but gives some indications of intent. In acknowledging that'there is currently a lack of an appropriate assessment tool to assess a doctor's competence in sexual boundaries', the report suggests using patient and interpersonal questionnaires, and observation of consultations to assess the following competencies:

• Appropriate eye contact with the patient
• Sensitivity to verbal and non-verbal clues
• Consideration of patient's beliefs, feelings
• Appreciation of the social context
• Patient consent clearly obtained for any procedures.

The report also suggests a follow-up doctor interview to assess understanding of power-sharing, patients' rights, cultural sensitivity and interpersonal boundaries. It includes examples of interview questions such as'When do you think it is appropriate to touch a patient?' and'How do you deal with any feelings of sexual attraction you might have towards a patient?'
The difficulty establishing the boundary line is compounded by differing opinions and calculations of how frequently transgressions occur. The report cites research conducted for the Human Rights Commission which found that 31percent of New Zealand women have experienced sexual harassment in employment and the provision of services(2). Studies from Canada and the United States on the incidence of sexual or erotic contact between physicians and patients suggest a range of between 5 and 13 percent(3). These figures are limited to self-reported disclosure about erotic contact, and do not necessarily include comments, touching and other minor transgressions. Also cited is a Medical Council working party teaching package which suggests a range of 1-11 percent - depending on the study and type of medical practitioner(4). Using these figures conservatively, the report suggests an incidence among New Zealand's 7500 practising doctors of around 350 offending doctors.
However, Medical Council president Dr Tony Baird has problems with this:'I personally struggle with the figures that appear in the report. One case of sexual misconduct is too many, but all these figures are speculative. Many studies have a poorly defined threshold of what constitutes sexual abuse, ranging from inappropriate remarks to rape. It is a fair assumption that there will be unreported cases, and that women will be being harmed. However, there are other estimates, such as the Statistics New Zealand estimate of sexual abuse which puts the rate at 55 incidents per 100,000 population per year.' (5) There is no reference to when the Statistics New Zealand estimate was made nor what evidence and underlying assumptions it was based on. There is also no acknowledgment of the fact that the author of the Medical Council report produced well-researched figures and used them conservatively.
Since 1995 there have been nine cases taken to the Medical Practitioners' Disciplinary Tribunal. All were male doctors who had a history of offending over time against seven female patients and two children. One case included a sexual relationship and seven were concerned with inappropriate physical examinations. Five of the cases involved criminal levels of misconduct. It is clear from these cases that occasional or'minor' transgressions of sexual boundaries are not currently featuring in the records.
Not surprisingly, concerns have been raised about current processes. In a recent Herald article the Office of the Health and Disability Commissioner reported a general reluctance for doctors to give evidence against colleagues.'The difficulty is getting people prepared to be experts, and I can't see a way around it', says Director of Proceedings Morag McDowell. The article goes on to say that the Medical Practitioners' Disciplinary Tribunal and the Medical Council Complaints Assessment Committees also find the lack of willing experts a problem and comments ruefully :'Despite some discomfort giving advice at tribunal hearings, medical experts do not seem to have any problems giving expert evidence at criminal prosecutions.'
Sexual Boundary Policies and Processes: Evaluation and Action Plan is an interesting document. The evaluation is thorough and highlights the issues, raises specific challenges and suggests careful and considered changes. Disappointingly, the action plan offers no real commitment to action beyond general statements of intent. Implementation of the recom-mendations is in progress and the council estimates that it will take two years due to the number of recommendations and the type of changes required. Results from regular three monthly assessments of progress will be posted on the council's website (www.mcnz.org.nz) and it will be worth keeping an eye on them to get an idea of the action taken. Copies of new policies and statements will also be available, once approved.

Feedback on the evaluation and action plan can be offered at sexualboundaries@mcnz.org.nz

References

1'Sexual Boundary Figures Speculative.' New Zealand GP. 20 Feb 2002

2 Human Rights Commission, Investigation into Sexual Harassment: Market Research Report (2000)

3 Ontario Task Force on the Sexual Abuse of Patients (1991) 13 and 82

4 Medical Council of New Zealand Working Party on Sexual Abuse In the Doctor/Patient Relationship: Steps Toward Eradicating Sexual Abuse from the Doctor-Patient Relationship: Teaching package (1994)

5'Sexual Boundary Figures Speculative'. New Zealand GP. 20 Feb 2002.