Sexual relationships between health practitioners and former patients: when is it misconduct?

Professional codes of conduct expressly proscribe entering into a sexual relationship with a current patient, but the position is less clear concerning former patients

All 15 regulated health professions in Australia have profession‐specific codes of conduct which expressly proscribe entering into a sexual relationship with a patient. It is widely accepted that such conduct is so serious that it amounts to professional misconduct in most circumstances. However, the position is less clear concerning former patients. This article considers guidance from tribunal level health disciplinary decisions on when a person is a former patient, and when a sexual relationship with a former patient will nevertheless be misconduct.

Codes of conduct

The various health profession codes of conduct take differing approaches regarding sexual relationships with former patients. It is therefore perhaps unsurprising that there appears to be confusion about where the professional boundary lies concerning former patients. The code for optometrists does not refer to former patients at all.1 The code for nurses treats both current and former patients together by providing that practitioners should:

The code for midwives extends this to “the woman, her partner and/or members of the woman's family”.3

The codes for Aboriginal and Torres Strait Islander health workers,4 Chinese medicine practitioners,5 chiropractors,6 dentists,7 medical radiation practitioners,8 occupational therapists,9 osteopaths,10 paramedics,11 pharmacists,12 physiotherapists13 and podiatrists14 all provide in a section on professional boundaries that good practice involves:

The code for doctors15 does not refer to former patients, but since 2014 specifically cross‐references additional detailed guidance on “sexual boundaries in the doctor–patient relationship”.16 The current guidance provides that it “may be unethical and unprofessional to engage in a sexual relationship with a former patient, if this breaches the trust the patient placed in the doctor”.16 The guidance states that a range of factors is relevant, including:

• the duration, frequency and type of care provided by the doctor; for example, if they had provided long‐term emotional or psychological treatment
• the degree of vulnerability of the patient
• the extent of the patient's dependence in the doctor–patient relationship
• the time elapsed since the end of the professional relationship
• the manner in which, and reason why, the professional relationship ended or was terminated
• the context in which the sexual relationship started.16

In contrast to the other professional codes, that of psychologists17 clearly sets out both a time period (2 years) and a process (involving three steps: consultation, supervision and referral) as prerequisites to establishing an appropriate sexual relationship with a former patient.

All of these codes should be read in light of authoritative guidance issued in 2014 and updated in 2020 by the Australian Health Practitioner Regulation Agency (APHRA) in conjunction with the National Boards18 on mandatory notification obligations under the National Law, which includes definitional text on “sexual misconduct” as follows:

Engaging in sexual activity with a person formerly under a practitioner's care after the professional relationship has ended may also be sexual misconduct. This depends on:

• whether the patient or client is vulnerable because of age, capacity or health conditions
• the means by which sexual activity was established (for example, whether a practitioner used information obtained during a treating relationship to contact a patient and commence sexual activity)
• the extent of the professional relationship (for example, a one‐off treatment compared to a long‐term program of treatment), and
• the length of time since the practitioner–patient/client relationship ended.18

Defining a former patient

Tribunals have taken a broad approach to “patient” and have looked to the quality of the therapeutic relationship rather than whether there was, for example, a recent consultation or whether there was a formal discharge from hospital care. Practitioners have failed to establish that the person was a former patient in circumstances where:

• the patient and dentist had a social engagement between the treatment and sexual encounter: Health Care Complaints Commission (HCCC) v Eftimoski [2015] NSWCATOD 51;
• the patient was discharged from a lengthy acute mental health inpatient hospital stay the day before her entering into a personal and then sexual relationship with a nurse: HCCC v Nelson [2019] NSWCATOD 22;
• the patient was discharged from a brief emergency department hospital stay on the same day that she had a sexual encounter with a doctor: HCCC v Marino [2016] NSWCATOD 37;
• the patient saw the surgeon periodically over several years: Medical Board of Australia (MBA) v Vucak [2015] QCAT 367; or
• the psychiatrist ceased formal consultations with the patient 5 months before the sexual relationship (but continued to prescribe for her): HCCC v Schultz [2012] NSWMT 7.

In the mental health context, tribunals have stressed the common context of ongoing outpatient care (such that the patient is still a patient of the health service even if not an inpatient: Nursing and Midwifery Board of Australia (NMBA) v Jackson [2013] WASAT 140; HCCC v Hudson [2019] NSWCATOD 38); and the likelihood of re‐admittance or recurrence for those with serious and chronic conditions such that a former patient should be regarded as a possible, even likely, future patient (HCCC v Scully [2011] NSWNMT 28).

Tribunals have also generally taken a dim view of practitioners who hastily terminate the therapeutic relationship in order to pursue a sexual relationship, in particular if there was no genuine and documented effort to ensure continuity of care by referring the patient to another practitioner. Thus, a quick agreement with the patient that the practitioner would no longer treat them was still regarded as a breach of professional duty because the sexual relationship arose from the therapeutic context and the patient's ongoing health care was often demonstrably compromised. In many such cases, tribunals regarded the person as a “patient” rather than a “former patient” (eg, HCCC v Slowiaczek [2019] NSWCATOD 99), or as a “patient/former patient” with no distinction drawn (eg, MBA v Visagie [2013] TASHPT 2; MBA v Ainsworth [2019] VCAT 734). There were also many instances in which the effect of an abrupt termination of treatment and failure to refer was harmful to the patient and characterised independently as unprofessional conduct (eg, MBA v Veness [2012] ACAT 36). These cases suggest that a practitioner would generally need to formally (and completely) terminate the therapeutic relationship and ensure continuity of care through a referral process in order to establish that the person is a former patient.

Unprofessional conduct or misconduct

If it is accepted that the person is a former patient, the focus turns to whether the relationship is still inappropriate, which is assessed by reference to both the patient's vulnerability and the context of the therapeutic relationship.

There are very few instances in which tribunals have held that the relationship between a health practitioner and a former patient does not breach professional standards, even if there was a passage of time between the therapeutic relationship and the commencement (or acknowledgement or proof) of a personal and sexual relationship. The imbalance of power was generally understood to be a continuing one if the relationship arose from the therapeutic context. In a New Zealand case concerning a physiotherapist (https://www.hpdt.org.nz/portals/0/838phys16338D.pdf), the Health Practitioners Disciplinary Tribunal stated:

If the parties’ ages were similar and they had a long‐standing professional or social relationship that predated or existed alongside the therapeutic relationship (Eftimoski), then the conduct was on occasion determined to be at the lower level of unsatisfactory professional conduct or unprofessional conduct (eg, MBA v Petrovic [2011] VCAT 795). Few such cases appear at tribunal level, possibly because they have already been determined at Board level on the basis that they present as less serious (and so are not required to be referred; see for example, Panel hearing summary 2012.0066: https://www.ahpra.gov.au/Publications/Panel-Decisions/Panel-hearing-summary-2012-0066.aspx). Once at tribunal level, decisions involving former patients have overwhelmingly resulted in a determination of professional misconduct, with findings of a lesser power imbalance taken into account in ordering less restrictive sanctions (generally conditions rather than suspension).

Relationships with former patients that were held to still rise to the level of misconduct included those in which:

• formal termination of a general practitioner treating relationship was expressly in response to the patient accepting or making a request for a “date”, which promptly followed: MBA v Costley [2013] WASAT 2; MBA v Haifi [2018] VCAT 1788;
• the last consultation as a GP occurred 1–2 months before the sexual relationship: HCCC v Norus [2017] NSWCATOD 158; MBA v MBO [2015] ACAT 69; MBA v PXI [2019] VCAT 63;
• formal termination of psychiatric treatment occurred 5 years before the relationship, but the treatment had involved 10 years of intensive psychotherapy: MBA v Leggett [2015] QCAT 240;
• the last consultation as a GP occurred 5 months earlier and the patient continued to work as a receptionist in the practice: HCCC v Bracco [2016] NSWCATOD 127;
• discharge from an acute mental health inpatient unit occurred less than 1 month before a sexual relationship with a nurse (NMBA v Alexander [2010] QCAT 606) and less than 1 week before a sexual relationship with a student nurse: NMBA v O'Halloran [2019] VCAT 1219;
• discharge from disability respite care immediately before a relationship with a nurse (who had also “kissed and cuddled” the patient while in care): HCCC v Watson [2015] NSWCATOD 148;
• a 16‐year-old patient discharged from a short stay in general paediatric ward “a few months” before a relationship with a nurse: HCCC v Mortlock [2015] NSWCATOD 136;
• a psychologist had seen the client for the last of four sessions 18 months earlier (and 12 months after the legal case for which he had prepared a report for her had concluded): Psychology Board of Australia (PsyBA) v Anderson [2016] VCAT 1407;
• a relationship with a psychologist 9 months after discharge from an inpatient drug and alcohol treatment centre: HCCC v Ledner [2017] NSWCATOD 90; and
• psychologist‐initiated contact with a client through a dating website 3 months after termination of a 3‐month treating relationship: HCCC v Whyte (No 1) [2012] NSWPST 2.

Particularly in the mental health context, tribunals have placed significant emphasis on the ongoing nature of many mental health conditions, and the potential for such conditions to seriously affect the patient's judgment (Scully). As the above examples indicate with both psychiatrists and psychologists, the passage of time without other steps was regarded as insufficient to alleviate the power imbalance, even in cases in which the patient had only two or three sessions of therapy with the practitioner (PsyBA v Wakelin [2014] QCAT 516; PsyBA v van Megchelen [2013] VCAT 328). Misconduct was also still found in cases involving a number of very young and inexperienced female practitioners (Ledner; O'Halloran) because of the vulnerability of the former patient and the treatment setting. In Ledner, the tribunal illustrated this by quoting evidence from the patient that:

As is clear from the discussion above, the tribunal undertakes a detailed qualitative assessment of the nature of the therapeutic relationship and the former patient's inherent and contextual vulnerabilities in determining both seriousness and sanction.19 These broadly reflect the list of factors for consideration laid out in the MBA guidelines on sexual boundaries16 and in the mandatory notification guidelines18 adopted by all National Boards. Health practitioners should therefore be taken to be well on notice of the disciplinary approach to former patients. However, I suggest that health practitioners may be poorly placed — in the heat of the moment as it were — to make such assessments of power imbalance themselves. Rather, the cases illustrate a pattern in which practitioners are “in too deep” before they call a hasty end to a therapeutic relationship (or in some cases belatedly purport to have done so) because of their overpowering wish to pursue the intimate relationship and in so doing blind themselves to the vulnerability of the (former) patient, to their own inappropriate access to highly personal health information belonging to that person, and to that person's ongoing and possibly now unmet health needs. For example, in one case, although a colleague “kept telling her” that she was in breach of the code of conduct, the nurse simply responded, “I really can't do anything about that now. I'm in love with him” (Scully).

Conclusion

Tribunals took a broad view of “patient” and often regarded someone as a patient if a therapeutic relationship was terminated very close to, and for the purpose of, an intimate relationship. Even when it was accepted that someone was a former patient, in almost all cases a sexual relationship was still found to rise to the seriousness of professional misconduct because of its genesis in the earlier therapeutic relationship. This leaves the question of when a sexual relationship with a former patient is ever appropriate. The case law indicates: very rarely.

I suggest that practitioners may benefit from clearer guidance and professional support on the issue of forming personal and sexual relationships with former patients. The steps required by psychologists, involving both a set minimum time period and a supervision process, might be of assistance. In the disciplinary cases concerning psychologists, these process requirements assisted in sidestepping lengthy disputes about exactly when a sexual relationship started (and the issue of patient/former patient) and still allowed discretionary assessment of the context of the conduct. Each profession should consider their specific professional context to determine if such an approach will be helpful, and what time limits and type of process would be most appropriate to their therapeutic discipline. Setting a “cooling off” period between therapeutic and personal relationship, and requiring a process for transition, would enable health practitioners to undertake a more reasoned, supported and supervised reflection on the appropriateness of the potential relationship — and allow for the possibility that this could sometimes be done without breaching professional duties.