Guidelines for Licensed Healthcare Professionals
Guidelines for Licensed Healthcare Professionals: Sexual Boundaries
By Monica P. Navarro,* Vezina Law Group
Most healthcare professionals know that interacting with patients in a sexual fashion is a bad idea. It is what is often referred to as “boundary crossing.” However, few appreciate the breadth of conduct that licensing boards will sanction, particularly given that the same conduct in a different setting would be considered perfectly appropriate as between consenting adults. This article seeks to alert licensed healthcare professionals – physicians, nurses, allied-health professionals, and mental health professionals, among others - of the range of conduct from which they must refrain in order to protect the integrity of their professional license.
Most licensed professionals readily understand that licensing boards consider egregious any sexual conduct that is criminal in nature, that is predatory, or that is the result of trickery by the professional. Most licensed professionals also understand that licensing boards consider just as egregious other sexual conduct, even if seemingly knowing and consensual, that takes place with vulnerable patients, such as mental health patients. In all those instances, the conduct is considered egregious by most licensing boards because it flows from an abuse of power by the healthcare professional, who is presumed to be in a unique position to take advantage of the weaker party in the professional/patient relationship. Sanctions for such conduct can be as severe as permanent loss of licensure.
But what about conduct with a patient who is not in a seemingly vulnerable state, comprising of behavior, gestures, or expressions that are seductive, such as commenting on a patient’s looks, asking a patient on a date, or plain-old flirting with a patient? And what if it is the patient who initiates the pursuit of the professional? What if the patient is enthusiastic about the possibility of a personal relationship with the professional and returns the flirtation? No matter. All such conduct can threaten a professional’s career just the same.
Effective July 1, 2014, the Michigan Public Health Code was amended for the express purpose of including sexual conduct with a patient in the category of unprofessional conduct that is grounds for disciplinary action and for sanctions. See MCL 333.17332 as amended. Unprofessional conduct now includes conduct to which a patient consented that was sexual in any way or could reasonably be interpreted as sexual, including, but not limited to, sexual intercourse, kissing in a sexual manner, or touching of a body part for any purpose other than examination or treatment.
The sanctions authorized by the Health Code are broad, ranging from permanent revocation of a license to probation, limitation, denial, suspension, restitution and fines. Even when revocation is avoided, the collateral consequences of limitation and suspension are so severe that the effect on licensure is almost indistinguishable from revocation. Limitation and suspension easily can lead to the loss of privileges, to un-insurability for malpractice, to provider de-participation from payor programs, to reports to the National Practitioner’s Data Bank, and to loss of Board-Certification, among other dire consequences. Lest not forget the professional humiliation and business loss that can result from a professional being ordered by a licensing board to expressly notify employers and patients of the violation and sanctions. Even the least of sanctions, fines, are running in the tens of thousands of dollars, not including the cost to the professional for engaging in other remedial measures ordered by the licensing board.
In sum, licensed healthcare professionals should scrupulously refrain from initiating, responding to, or engaging in any conduct, no matter how consensual it may seem, that blurs the professional boundary of the patient relationship. Further, the handling of such matters by the healthcare professional, even the decision to disengage or discharge a patient, requires careful evaluation and guidance by experienced legal counsel.
*Monica P. Navarro specializes in healthcare law and related litigation, including full representation of physicians and allied-healthcare professionals. Having served as a member of the State of Michigan Board of Psychology for eight years, she has unparalleled experience in licensing actions. She can be reached at firstname.lastname@example.org
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