Is this doctor hitting on his patient?

I recently received a very thoughtful email from a reader. I'm posting it here (slightly edited) with permission from the writer:

I recently stumbled across your very helpful and insightful blog. I had a question that I thought you might be able to help me with. I was wondering if you could possibly cover something on appropriate boundaries in the doctor/patient relationship.I have seen a few pieces on obvious violations of this (romantic and/or sexual relationships where the doctor clearly took advantage of a patient), but I was more curious about the grayer areas, where doctors may be a bit too familiar with their patients.

I ask because I saw a male OB throughout a recent pregnancy. He was quite attentive, very competent, and overall a wonderful doctor. However, sometimes he made comments that took me off guard and I was never quite sure how they were relevant to my medical care. For example, he asked if my husband still got erections and later asked me to describe how I felt when I had an orgasm. On one hand, I could see how questions regarding sexual activity during pregnancy are pertinent, but never before has an OB asked me these questions during a pregnancy. The questions seemed a little odd to me, but I also wonder if perhaps this OB is just much more thorough in his care than my previous one.

I'd appreciate any light you could shed on the matter of grayer areas in the doctor/patient relationship.

What a terrific - and important - question! Here's my reply:

As you say, the questions your obstetrician asked could be relevant to your obstetrical care, but they could also be part of an effort to see if you might be sexually/romantically available. As a general rule of thumb, when the medical relevance of questions physicians ask isn't obvious, we should explain why we are asking the questions. Not having done that, your obstetrician created a situation in which a reasonable patient might wonder "are these questions part of good medical care, or is the doctor 'coming on' to me?" 

I think the most we can say is that the obstetrician might have been committing what in medical ethics language would be called a "boundary violation." If that was his intent, it was clearly a breach of professional ethics. But if it was not his intent, he failed to make clear why the questions were relevant. For example, he might have said "In my experience, it's not uncommon for couples to encounter difficulties with sexual intimacy during pregnancy...." But it's still unclear what the relevance of your experience of orgasm would be to medical care, unless you had brought up a concern of your own, or if he had said something like "I'm trying to learn about sexual relationships during pregnancy, so if it's OK with you I'd like to ask you..."

Ideally, patients will ask for clarification when they're uncertain about what we are asking about or doing. But in my practice there were times when I thought I was being clear but learned that I had inadvertently confused my patient. The power imbalance in the medical relationship means that physicians can't rely on patients to ensure clarity. Your email shows you to be a very clear thinker, but apparently you didn't feel comfortable saying something like "Could you explain how that question relates to my obstetrical care?"

If a resident or colleague asked me if it was OK to inquire about a partner's erections or the experience of orgasm in the course of obstetrical care, I would (1) ask about the relevance of the questions to the patient's care and, if there was clear relevance (2) recommend that the physician explain why he was asking the questions, to avoid generating the kind of concerns you experienced.

So, in  answer to the question of whether your physician was committing a boundary violation, my response is that it's possible that he was. We know from patient reports that sexual exploitation is often preceded by suggestive/ambiguous comments that in retrospect appear to be "testing the waters" or "dropping hints." But it's also possible that the questions were entirely relevant to his objectives for your care. If that's the case, he was "guilty" of poor clinical communication.

Thank you again for your very valuable question! 

 

Computer-Patient Sex

This is a post I've been meaning to write ever since 2013, when I first saw Spike Jonze's remarkable film, Her. I've just watched it again  on DVD. So here goes.

Critics wrote about the film as a futuristic love story, in which Theodore Twombly ("Theo"), played by Joaquin Phoenix, a melancholy, emotionally inhibited, almost-divorced man, falls in love with Samantha, a bodyless operating system, played by Scarlett Johansson, whose voice we hear but who we never see, since she's an artificial intelligence program, not a corporeal being. Theo's job is as a writer of poetic, passionate letters for clients of BeautifulHandwrittenLetters.com. Outside of work he is bumbling through a life of non-attachments.

But in addition to being a love story, I see Her as a fable about a psychotherapy. As a despondent, lonely 30-something, casting about for what direction to go in life, Theo is a prototypical therapy patient. He hears an advertisement for an AI system that "listens to you, understands you, and knows you." In other words - the perfect therapist.

Theo responds to the ad.

Enter Samantha!

Samantha starts as a stunningly efficient personal assistant. Imagine IBM's Watson with a sultry voice devoting itself to understanding your every need and wish. But things rapidly get more personal. For Theo, listening to Samantha's voice through an earphone is as if he was on the couch, talking to an analyst sitting behind him. With a delighted little laugh he exclaims "you know me so well...I feel I can say anything to you." Who could resist? Theo rapidly falls in love - or, in the words my residency supervisors could have used, "develops an erotic transference."

Samantha responds to Theo's idealization. Soon they're talking at night - essentially having the equivalent of phone sex. For both Samantha and Theo it's an ecstatic experience. For the moment, both are blissfully happy. But when Samantha tries to have a "real," non-transferential experience with Theo, by sending a surrogate to be with him as her body. it's a disaster. Theo can idealize and "have sex" with his invisible therapist, but when reality enters in in the form of a corporeal being (the surrogate), he freezes. Fantasy is one thing. Reality is another.

I doubt that Spike Jonze had the theme of transference and patient-therapist sex in mind when making the film, but the film captures the dynamics of (a) idealization of the therapist, (b) the therapist's response to being idealized, and (c) the emergence of intense erotic feelings from the combination of (a) & (b), with brilliant clarity. Both characters are vulnerable and needy: Theo in his isolation and Samantha in her sense of being trapped in programming language and in that way not fully real.

The psychotherapeutic fable has a bittersweet ending. Samantha gets a grip on herself. She does what therapists who recognize they are losing control should do - she gets a consultant. The ghost of Alan Watts, the Zen philosopher/therapist, helps her recognize that she's not being true to her ideals. She and her companion operating systems go off into space. Theo is initially bereft, but he seems to have taken in Samantha's Wattsian wisdom. He writes a loving goodbye letter to his ex-wife, and in the final scene he is sitting on the roof of his building with Amy, his friend from college. They are clearly right for each other, and it's a more sane relationship than the therapist-patient passion between Theo and Samantha. The therapy has been successful. Both the patient and the therapist have matured, but only, on both parts, by relinquishing the fantasied relationship.

Her is a remarkable film - funny, touching, entertaining, and wise.

"Guilty mind" and the jailing of Professor Anna Stubblefield

I've had several conversations about the justice or lack thereof in the sentencing of Professor Anna Stubblefield since I posted about her four days ago. One person made a strong case against any jail time on the basis that (a) although every reputable professional society that has examined "facilitated communication" has concluded that it is bogus, it's not illegal to use the "technique," and, most importantly, (b) Anna Stubblefield did not have what in legal terms is called "guilty mind" (mens rea).

If I erroneously take your suitcase from the airline carousel because it looks exactly like mine, I'm not guilty of theft. But if when I get home I decide to keep it because I like the content of yours better than mine, I've become a thief. The difference is in my knowingly and intentionally appropriating your property. That's guilty mind.

My critic was right. In initiating a sexual relationship with D.J., a disabled man, Professor Stubblefield (a) believed he had given enthusiastic consent via "facilitated communication," that she was (b) fulfilling his wishes (as well as hers), and that (c) bringing a disabled, previously uncommunicative 32 year old into the shared human world was an ethically admirable act. That doesn't look like a guilty mind. How could jailing her for rape possibly be ethically allowable?

That argument troubles me too. But here's my response. "Facilitated communication" (placing the uncommunicative person's hand on the facilitator's hand to guide writing at the keyboard) has been decisively and definitively shown to be a false theory. The writing comes from the "facilitator," not from what believers in the false theory call the "communication partner."

But given the widely known results of scientific evaluation of "facilitated communication," and the multiple condemnations of it by reputable professional societies, Professor Stubblefield should have known that D.J. could not give valid consent. She should not have accepted her experience at the keyboard as evidence for consent.

Another interlocutor invoked the history of science. Haven't there been examples of theories widely regarded as false that were later determined to be true?

Yes, there have.

Professor Stubblefield and her co-believers in "facilitated communication" are entitled to believe that mainstream science is wrong, and to make ethically allowable efforts to disprove the scientific consensus. But they're not entitled to invade the rights of others, as by "determining" that consent for sexual relations has been given. Similarly, the occupiers of the federal wildlife refuge in Oregon are entitled to argue that the federal government is acting wrongly, but they are and should be liable for trespass for acting on their beliefs.

Still, from the perspective of ethics, sentencing Professor Stubblefield to 12 years in prison makes no sense. She's not a danger to others as long as she neither commits nor incites actions like hers with D.J. That would be a condition of probation. She did not have a guilty mind. Although her case is not a slam dunk, I hold to my view that given 25 years of well publicized scientific findings,  she was not entitled to act on her beliefs.

In my view, the jury was correct in defining her actions as rape. But guilt is one thing and sentencing another. The sentence may be consistent with state law, but the 12 year sentence does not fit the crime.

"Facilitated Communication" and the Sentencing of Professor Anna Stubblefield

Anna Stubblefield, former chair of philosophy at Rutgers, has been sentenced to 12 years in prison for rape of D.J., a 31 year old man with severe cerebral palsy who she insisted was mentally competent to consent to a sexual relationship. His family, the state, and the jury, saw him as severely disabled in cognition as well as motor capacity and incapable of a consensual relationship. (See here for my October post on the situation. Make sure to read the thoughtful comments as well!)

Professor Stubblefield "communicated" with D.J. by "facilitated communication," also called "supported typing," a technique in which the otherwise non-communicative person's hand is used to "guide" the facilitator at a keyboard. Multiple professional organizations, most recently the International Society for Augmentative and Alternative Communication, have studied the technique. The distinguished international review committee didn't mince its words: "...messages generated through Facilitated Communication are authored by the facilitators rather than the individuals with disabilities. Hence, Facilitated Communication is a technique that has no validity." (See here for the systematic review and here for the Society's formal position statement). Other groups, including the American Association on Mental Retardation, American Psychiatric Association, and the American Academy of Pediatrics, concur.

But facts don't change the position of true believers. Sadly, the sense of being beleaguered has led advocates to circle their wagons and advocate more vehemently. Professor Stubblefield's parents were educators with a passionate commitment to facilitated communication. They brought her up to have the same convictions, as she is doing with her own 16 year old daughter. People with severe disabilities like D.J. are often stigmatized and warehoused. Bringing out hidden potential, as dramatized so well by Daniel Day-Lewis in My Left Foot, is a noble aim. 

The pseudo-science of facilitated communication nests with concerns about social justice. Advocates feel that a misguided society is thwarting the efforts of (a) families to get help for their disabled children, (b) facilitated communication practitioners to carry out their belief that they can relieve suffering, and (c) disabled persons seeking to realize their potential. That's a powerful mix!

I see Professsor Stubblefield as a tragic victim of this witches' brew of passionate belief in a view that we all wish were true, but, alas, isn't. From the perspective of ethics we should ask - what is the right societal response? Here are what I see as the key considerations:

1. Facilitated communication has been proven to be a false theory.
2. It still has committed adherents who argue for the theory on the basis of anecdotes.
3. The anecdotes don't change the fact that the theory has been disproved.
4. Anna Stubblefield passionately believed (and, from what we know, still believes) that facilitated communication could rescue otherwise hopelessly disabled people.
5. She is not a sexual predator. No one suggested a pattern of exploitation on her part. (Unlike my own profession, where there have been psychiatrists who recurrently exploited patients for sex.)
6. She fell in love with D.J.
7. She firmly believed that D.J. loved her in return and was mentally competent to consent to a sexual relationship.
8. As I said in my previous post, even if D.J were competent, he was, in effect, Professor Stubblefield's patient, and having sex with him was unethical..
9. The jury found her guilty of initiating a sexual relationship with a person who could not consent. Despite her belief that the relationship was consensual, it must be seen as rape.

Professor Stubblefield does not appear to be a risk to society the way a serial rapist is. She believed she was doing something with D.J., not to him. But although a female professor of philosophy who has set out to help a severely disabled person does not fit our ordinary conception of a rapist, the fact that you love the person you are having non-consensual sex with does not change the fact that the action is rape.

For that reason, I see some time in jail as an appropriate societal response. But twelve years is excessive. From the perspective of ethics, a short incarceration, to make clear that society does not tolerate rape, even if false beliefs led the perpetrator to misperceive the rape as a positive, caring action. Jail would be followed by an extended period of probation that included prohibition of any and all practice or advocacy of "facilitated communication." In addition, Professor Stubblefield should make a full apology to D.J.'s family. To me that seems like the  right outcome for this tragic situation.

Taking Action on Sexual Abuse by Physicians

"Why Didn't Anyone Stop Dr. Hardy?" is the featured headline on the front page of today's Boston Globe. It's accompanied by the photo of the back of the head of a woman who complained about Dr. Hardy to the Massachusetts medical board in 2004. She has her hand against her cheek with a watch showing prominently, suggesting the passage of time over which numerous complaints were made about Hardy, with no action being taken. What follows is a summary of the article and my analysis of the key issues:

The story went back to his undergraduate days at Princeton. Both male and female classmates believed he had committed sexual assaults. But this was the 1970s, before the kind of focus on sexual misconduct that universities now apply. Hardy was president of the premedical society and even, for a time, a counselor in a sexual education program. A male classmate was concerned enough to send anonymous letters to medical schools warning that Hardy was "a person of poor character." Hardy trained at Cincinnati, Stanford and Harvard, becoming a gynecologist and fertility specialist.

In 1999 a woman reported to the gynecologist who had referred her to Hardy that Hardy has massaged her clitoris, saying he needed to get her "uterus to contract." She asked the gynecologist - was this a normal medical procedure? Her gynecologist said it was not, but apparently did not report Hardy to the medical board. In 2004 the patient featured in the article reported Hardy to the medical board, complaining that her clitoral area was raw and swollen after a surgical procedure. Hardy wrote a three page defense. The board took no action against him, but it did make a record of the complaint.

In 2011 Hardy told  a South Asian patient that women from her country were "clueless about sex," and that being brought to orgasm by his massaging her clitoris would help her get pregnant. When this woman ultimately went to the Massachusetts medical board the board conducted an extensive examination - including interviewing classmates from Princeton -  leading to Dr. Hardy's surrendering his medical license, and promising never to seek to be licensed in any other state. Dr. Hardy now lives in Thailand with his second wife and their young children.

In medical ethics classes we typically work with examples of "good v good" conflicts, as when respecting the patient's choices ("respecting autonomy") conflicts with the patient's health ("practicing beneficence"). I interpret the history of Dr. Hardy's case as the opposite - a "bad v bad" conflict.

If the patients' complaints are true, Dr. Hardy has malpracticed, disgraced his profession, and possibly committed felonious assault. Sadly, we know that some physicians betray their patients' trust and professional responsibilities in the way Hardy apparently did. In the past, however, it was not uncommon for an offending physician's denial to be believed, especially when the physician was a "respectable" Caucasian with top drawer credentials like Hardy. When colleagues and medical boards acted this way they were adding "system level injury" to the "direct injury" done by the abusive physician.

But in addition to bad things being done to patients by individual physicians, unresponsive colleagues and inactive medical boards, there are symmetrical risks of harm being done to "innocent" physicians. 40 years ago a young patient of mine with mild developmental disability was angry when I cancelled an appointment. She complained to the medical board that I had molested her. I had hurt her feelings, but that's not what she said to the board. By the time the board contacted me my patient and I had rescheduled the appointment and we were once again on good terms. I was too naive at the time to recognize how serious a complaint to the board could be. My patient had had a brief adolescent snit, but just as a malicious physician may lie about his offenses, a malicious patient may fabricate an accusation. When a board or the court of public opinion finds an "innocent" physician "guilty," a severe harm is done to the physician.

I don't see any way of ensuring the right answer to these "bad vs bad" conflicts. I know that patients have been harmed by having their reports of abuse disbelieved. But I'm sure that exemplary physicians have, on occasion, been harmed by complaints based on misunderstanding or malicious intent. Years ago, when I was in charge of a medical facility, a female patient complained that her male physician had been masturbating during an appointment. I met with the physician to take up the complaint. He said that perhaps his underwear had twisted around his testicles and that he readjusted his clothing and his anatomy via his pocket. (Male  readers have probably experienced the underwear problem.) I believed him, and explained what I thought had happened to the patient. She seemed to accept my interpretation, and that was the sole complaint ever received about the physician. But stranger things have happened than what the patient initially alleged. While I believe I got the situation right, a crystal ball might tell us that the physician lied and I unwittingly exonerated him and did an injury to the patient.

The excellent reporting done by the Boston Globe gives some guidance about how the health system and medical profession can handle these "bad v bad" conflicts better. Colleagues need to follow up on stories they hear from patients or rumors. At the very least this means talking directly with the physician in question. This isn't easy, but it's clearly the right thing to do. It didn't happen early enough with Dr. Hardy. If the physician is "guilty" it puts him or her on notice that the medical community is vigilant. At best the physician will say "I made a terrible mistake and I need to get help..." But even if the physician lies in a plausible manner, knowing that others are concerned will diminish the likelihood of repeat offenses.And if the accused physician is "innocent" he or she will be embarrassed or appalled, but it's better not to have unchallenged rumors circulating.

It's a privilege to be allowed to become part of patients' lives in the intimate way that medical care involves. But that very intimacy creates risks - primarily for patients but also for physicians. We need our health system to protect patients from exploitation and injury without making physicians so wary about accusations that they overly constrain their human warmth and caring.

Not an easy task!

Priests and Physicians who betray their trust

If you’re a moviegoer, don’t miss Spotlight, which opened earlier this month. It tells the story of the Boston Globe investigative team that broke the story about sexual abuse of children by priests. For Bostonian’s it’s a must-see. But it’s such a well-acted, well-directed film that even those with no interest in Boston or priestly behavior should find it engaging.

Sexual abuse of children is and should be a crime, whoever perpetrates it. But the story of priests who betray their calling sheds light on the most-read topic on this blog: doctor-patient sex. The further back in time we go, the more overlap we see between medicine and religion. Jesus, Muhammad and Buddha all healed sickness as well as sin. In every religion priesthood is a calling. The priest is literally called by God. I think of health care as a secular calling to which practitioners may be “called” by fidelity to our common humanity.

Spotlight shows how, priests, like physicians (especially psychiatrists), are the object of transference, that can endow them with enormous power in the eyes of their congregants/patients. When that transferential power is combined with recurrent private contact – whether in the church or the consulting room – we have the potential for great benefit or great betrayal. For too-many priests, the combination of sexual temptation in the presence of parishioners who idealized them was a devil’s brew.

For Catholic priests, celibacy adds an additional risk factor. Dylan Thomas nailed the challenge the young priest must contend with:

The force that through the green fuse drives the flower

Drives my green age: that blasts the roots of trees

Is my destroyer.

And I am dumb to tell the crooked rose

My youth is bent by the same wintry fever.

Spotlightdramatizes that while individual priests sinned, the system of the church protected them and neglected their victims by moving the offending priests from parish to parish. It required a diligent and courageous reportorial team to blow past the cover-up. Psychiatrists who betrayed their profession and exploited patients were not protected to the same extent, but it required the brave feminists who outed the offending physicians to stem the psychiatric abuse that was more prevalent in the 1960s and 1970s.

In an especially powerful moment, Spotlight shows a reporter speaking with Father Ronald Paquin. In a strangely dissociated manner, Father Paquin acknowledges that he “played around” with children, but never “raped” them and did not “gratify” himself, as if these claims exonerated him. Self-delusion is a powerful human capacity, and perpetrators frequently find ways to “justify” their actions. Last month Father Paquin, now 72, was released from prison. (For an earlier story, see here.)

It’s comforting to the rest of us to dismiss offending priests and physicians as bad apples. But that excuses us from our own responsibilities for governing the professions of priesthood and medicine. When the bystanders wanted to stone the woman taken in adultery, Jesus rebuked them: “He that is without sin among you, let him cast a stone at her.” Believers and atheists should agree that this was a true teaching.

Anna Stubblefield: Victim and Perpetrator

An article in  yesterday's New York Times told a remarkable story about Anna Stubblefield, former chair of the philosophy department at Rutgers University, who was convicted on two counts of aggravated sexual assault for having sex with a 31 year old man who the jury concluded was so severely disabled he could not consent to a sexual relationship.

The story hinges on "facilitated communication," a scientifically discredited practice that claims to achieve access to the hidden thoughts of persons with autism and other conditions that have hitherto precluded communication. In the technique, the "facilitator" claims to reach the "communication partner" by assisting the partner to type responses to questions.

I'd somehow never heard the fascinating history of facilitated communication until I read the NYT article. Imagine how moving it is to parents when they are told that their supposedly disabled offspring tells them that he is now overjoyed to be able to communicate and that he loves them very much. And imagine how horrified families are when the facilitated message accuses them of incest and other forms of violence.

I encourage readers who want to learn more about the scientific debunking of facilitated communication to follow the link above and to do a Google search for more. The phenomenon is reminiscent of the "Ouija Board," an occult practice that claimed to communicate with the dead. I remember my parents talking about Ouija Boards when I was a child. I believe they were joking about them, but many believed then that the board allowed spirits to speak to us, and it's still possible to purchase a board even now.

 But in this post I want to discuss the Anna Stubblefield case in connection to my many (21) posts on "doctor-patient sex." Here are my speculations, based solely on the New York Times article and the links it provided:

1. I read excerpts from Professor Stubblefield's writings. They reflected intelligence, thoughtfulness, and passionate commitment to social justice.
2. Reaching the hitherto unreachable is a noble aspiration, shared by physicians, educators and other  professionals.
3. Facilitated communication involves intimate connection - including physical contact - between what I will here call "doctor" and "patient."
4. As a result, it's a living Rorschach that allows the "facilitator" to project beliefs (as about the prevalence of abuse) and desires (as about sex) onto the "communication partner"/"patient".
5. Professor Stubblefield and her supporters believe that her "communication partner"/"patient" was competent to consent to a mutually agreed upon sexual relationship.
6. The family, the prosecutor, and the jury concluded that the "communication partner"/"patient" was not able to consent, and that the relationship was criminally exploitative.
7. However, even on Professor Stubblefield's hypothesis that her "communication partner"/"patient" had the capacity for competent consent for a sexual relationship, in her role as "facilitator"/"educator"/"therapist," it was unethical for her to enter into the relationship.
8. My guess is that Professor Stubblefield's treating the family as if they were harming their son & brother by opposing her relationship with him was especially provocative to them. They had been caring for their family member for 31 years and were now being told they were undermining his well being.

Professor Stubblefield will be sentenced next month, and could receive as much as 40 years in prison! Physicians who have sex with their patients may be sued for malpractice and may lose their licenses, but they are not subject to lengthy prison terms. My guess is that gender (female clinician/male patient) and race (white clinician/black patient) are major factors explaining why Professor Stubblefield could be punished so much more severely than male physicians who have sex with female patients. "Boys will be boys" is a deeply held societal perspective!

In 1992, Dr. Margaret Bean-Bayog, who I had the privilege of supervising when she did her residency in psychiatry, was the subject of sensationalistic press coverage and two books when she was accused of having had sex with a male patient who subsequently killed himself. She argued that the intense attention she received derived from public fascination with the concept of a rapacious female sexual predator. 

I believe Dr. Bean-Bayog was correct, and that similar forces are in the background of the public attention to Professor Stubblefield.  I agree with Professor Stubblefield's attorney that "...this has been a very unusual case. She fell in love. She has no prior history of sexual misconduct whatsoever. She has no criminal record." Professor Stubblefield acted unethically, but she should not be facing the possibility of a prolonged incarceration.

Health Care Organizational Ethics quoted in the New York Times

I'm a regular reader ot "The Ethicist" column in the Sunday New York Times. This morning's column started with a rather sordid situation:

My ex-wife is a physician. We divorced when I found out she was having an affair with one of her H.I.V.-positive patients. I feel compelled to tell the state medical licensing board and the professional societies to which she belongs about her affair. My reasons for doing so are that I feel an intense urge to retaliate her breach of trust and that she potentially exposed me to H.I.V. (fortunately, I tested negative). I also know that, as a physician myself, I should report her to protect other patients, so that she may get increased supervision at her workplace and treatment if needed. Should I report her even though my main motivation is revenge? NAME WITHHELD

After dispensing with revenge as a motive ("There’s no moral argument for ruining someone’s life just because she ruined yours"), Chuck Klosterman, the columnist, goes on to discuss doctor-patient sex. I was surprised to find a quote from "Doctor-Patient Sex: Why is it Unethical?", a 2009 post on this blog:

There is, however, a problem here. The fact that your ex-wife had an affair with someone who is H.I.V. positive is not a professional issue (and a physician would be well positioned to conduct such a relationship, as she would fully understand the risks). But the fact that the man was her patient is reason for concern. Personally, I can easily imagine situations in which a doctor could have romantic interactions with a patient and everything would be fine — but those hypothetical possibilities don’t make the practice acceptable. R.M. Cullen, a doctor in Auckland, New Zealand, has written at length about the import of a “zero-tolerance” policy when it comes to doctor-patient sexual relations. Here is the core argument, as interpreted by Jim Sabin, director of the Pilgrim Health Care Ethics Program at Harvard University: “Cullen argues — in my view correctly — that it is not necessary to prove that every instance of doctor-patient sex will be harmful . . . to establish that doctor-patient sexual relationships are unethical. The medical profession can, and should, adopt a zero-tolerance ethical stance based on a) the potential for harm to the patient with b) no offsetting potential benefits for the patient, combined with c) the inevitable harm to trust in the medical profession itself.” In other words, the potential downside is massive, the potential upside has nothing to do with medicine and the social take-away makes every other doctor look sketchy.


So does this mean you should report your ex-wife? If you agree with Cullen’s argument, you should. If you simply want to hurt her, your position is weak and immoral, but the action of reporting her itself remains defensible.

In the past five years I've written 20 posts on doctor-patient sex. These posts have had more than 25,000 page views - not much by internet standards but a lot for a blog with a wonky title and a somewhat esoteric focus. The 20 posts have received 128 comments. I have the impression that folks get to the posts via Google searches when they're concerned with the topic. I assume that was the case with Chuck Klosterman.

Plastic Surgeon-Patient Sex

I recently received these questions about doctor-patient sex with a plastic surgeon:

My married sister's plastic surgeon called to give his condolences after the passing of our father. The doctor continued to call and fostered a personal friendship with her. He started to confide in her about his marital problems. They arranged to meet for dinner and entered into a 18 month affair. When my brother in-law discovered the affair, the doctor quickly abandoned her and started to make her look like the person who wanted the affair. My brother in-law filed an ethics complaint which is under investigation for over a year. I am the only person my sister will discuss the affair with, but not the only person that can see how the affair has affected her mentally. She is extremely depressed, filled with guilt and shame and has talked to me about ending her life. She refuses therapy, so I do the best I can to help her. Lately because of our conversations, I truly feel he took advantage of a vulnerable patient who was depressed over the loss of her father. She told me she had become dependent on him. Can you explain this dependence? She says she now knows how people follow a cult leader. Her pain is real and the result of a consensual affair with her doctor. He is not a mental health doctor; will he be held to the same standard? (emphasis added)

 In my response I emphasized that how important it was to help the patient accept counseling. Here I want to discuss the question of whether the plastic surgeon would be held to the same ethical standard as a psychiatrist.

To my eye, although the code of ethics for the plastic surgery specialty prohibits "sexual misconduct," it defines the term in a way that leaves patients and the profession vulnerable:

Sexual or romantic relationships with current or former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the current or previous professional relationship.

The relationship between plastic surgeon and patient is intensely personal as well as technically demanding. Especially for surgery with aesthetic aims, patients entrust the surgeon with potential for making them look more the way they dream of appearing. For female patients, interventions may involve face, breasts, genitals, and their overall sense of "desirability." In terms of the question the patient's sister posed to me - the doctor-patient relationship in plastic surgery would seem to have all of the key characteristics that occur in mental health practice: exposure of deeply personal concerns, potential idealization of the clinician as a "saviour," and "transference" of feelings from the past. And, unlike psychiatry, ordinary practice involves disrobing and touching.

It's hard to see how a "sexual or romantic relationship" between plastic surgeon and patient would not draw in "trust, knowledge, emotions, or influence" derived from the professional relationship, whether or not the physician is consciously "using" or "exploiting" those factors. Even if passions are not involved, it would be very difficult to ascertain whether the factors the code of ethics prohibits were present. Sexual attraction and feelings of love are not known for inducing heightened intellectual and analytic lucidity!

I was unable to find any data on the frequency of complaints about sexual/romantic relationships between patients and their plastic surgeons. Unfortunately, a review of five years of complaints made to the ethics committee of the professional association did not report on the specific content of the complaints. But in light of the nature of the patient-doctor relationship in plastic surgery, I believe that the position of the American Psychiatric Association - that sexual relationships with current or former patients are unethical - would apply with equal relevance to plastic surgery.

In answer to the question posed by the patient's sister, I could not respond that the physician would be held to the same standard as a psychiatrist, but did say that I thought that should be the case.

Sex isn't the only lust that physicians succumb to

Money and power can also lead to ethical collapse.

A sad story today's New York Times tells how Dr. Sidney Gilman, a respected teacher and researcher on drugs for Alzheimer's disease, has been nailed for warning a hedge fund manager he'd been dealing with to dump a pharmaceutical stock before news of a failed drug trial became public. Gilman had access to the information from his role on an FDA panel.

From responses to a number of the posts I've written about doctor-patient sex, it's clear that physicians who violate basic ethical standards can be superb caretakers for their other patients. Dr. Gilman, now 80, apparently had an exemplary career in teaching and research. A neurology lecture series at University of Michigan Medical School is named for him. And a colleague reported that he frequently turned to Dr. Gilman for advice about ethical issues:

He always gave me rock-solid advice and counseled me to maintain transparency so as to avoid even the appearance of a conflict of interest.

Re Dr. Gilman's teaching about transparency, the Times reports that to avoid arousing suspicion about his consultation to the hedge fund about the Alzheimer's drug, Gilman asked his co-conspirator to label the consultations as about other, unrelated topics.

Dr. Gilman could do a service to medicine and medical ethics by sharing the inside story about how a physician who apparently conducted himself in an admirable manner for most of his career descended into obvious unethicality (and criminality) as he did. What steps led from honorable conduct to dishonor? Did he delude himself as to what he was doing, or did he make a Faustian bargain to proceed? Better understanding of the "mechanisms" that facilitate serious ethical lapses can help educators work more effectively towards prevention.

(For an interesting post from a hedge fund insider, see here.)

More about the Massachusetts Board of Registration in Medicine and Doctor-Patient Sex

There were two letters to the editor in today's Boston Globe about the Massachusetts Board of Registration in Medicine's decision to take away Dr. Gary Brockington's license. (See here for my original post.)

Nurse Mary Hourihan gives a perspective on Dr. Brockington's overall practice like what we've heard from patients of other physicians who have been disciplined for sexual relationships with patients:

As a nurse who has worked at the Faulkner Hospital for more than 30 years, I was shocked and saddened to read your article concerning the state Board of Registration in Medicine’s revocation of Dr. Gary Brockington’s medical license (“Board revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24). The doctor has cared for his many patients with the utmost professionalism and expertise. Although I do not work directly with him, nearly every day I hear from our mutual patients the reverence in which he is held.

The board is denying thousands of patients the skilled, sensitive care this extraordinary physician provides. I feel that Brockington and his patients deserve reconsideration of this decision.

Mary Hourihan

West Roxbury  

There's nothing surprising about the fact that a physician who displayed a serious ethical lapse with a patient may have been an excellent physician for most or almost all of his patients. (For example, see here.) In my own experience, a former colleague who I knew to be a superb physician, such that I referred one of my sons to him for allergy care, has been convicted for murdering his wife! In prison, he continues to evince the caretaking characteristics that were so prominent in his care of patients. (See here.)

Donald Ross, a physician colleague of Dr. Brockington, comes to the same conclusion I did - that if Brockington's relationship with the patient was a brief, one-time event that occurred during a period of major stress, the Board's actions were too harsh. But I don't agree with Ross that the Board's decision necessarily reflects "lack of compassion." A Board can impose a severe penalty and still regard to person being penalized with compassion, in accord with the precept that we should hate the sin but love the sinner.

In reading the story about Dr. Gary Brockington’s affair with a woman who was a patient and a co-worker, it strikes me that the reaction of the state Board of Registration in Medicine was over the top and lacked compassion in its response (“State revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24).

Perhaps there was poor judgment involved, but this does not sound like a case in which a doctor used his position in the doctor-patient relationship in an exploitative way. Brockington was also going through a difficult time in his own personal life at the time, and sometimes we don’t make our best decisions under such circumstances.

Perhaps it would have been more appropriate to require Brockington to enter a counseling program rather than imposing what is essentially a death penalty to his career.

Dr. Donald G. Ross

North Andover

As I said in my original post, if Brockington's relationship with his patient was (1) brief, (2) a single occurrence in his practice and not a pattern, (3) occurred at a time of major stress, and (4) preceded by years of responsible caretaking, than (5) permanent loss of license seems too severe a penalty. This is not a matter of compassion but of realism. Some perpetrators of unethical behavior can be rehabilitated and will be able to serve others in a reliably ethical manner.

Was the Massachusetts Board of Registration Too Harsh on this case of Doctor-Patient Sex?

The Boston Globe recently reported that the Massachusetts Board of Registration in Medicine revoked the license of Dr. Gary Brockington, a 54 year old primary care physician and cardiologist, for having had a sexual relationship with a patient.

I've not been able to get a copy of the report from the Division of Administrative Law Appeals, so I'm entirely dependent on the Boston Globe story, which has extensive quotes from Brockington's lawyer. The story, if accurate and complete, leads me to speculate that revocation of licensure may be too severe a penalty in this specific situation.

According to the Globe, Brockington experienced a Job-like series of events in 2006. He was newly divorced, bankrupt, and depressed. During the same stretch of time his sister (his only sibling) broke her neck and was left by her husband. Brockington became legal guardian for her two young children.

One of his patients, a married woman who was a technician at the hospital where Brockington practiced, and who had worked with him on procedures, invited him to stay in her basement. According to Brockington's lawyer he told her she would have to get another primary care physician. He did, however, renew some prescriptions for her. He stayed in her home for two months. Apparently the brief sexual relationship occurred during the last two weeks of his stay. He moved out in July, 2006. The woman did not herself register a complaint.

If, as Brockington's lawyer claims, the facts show that this was a single episode in an otherwise exemplary career, it's not clear that public safety requires permanent loss of license. In other posts I've strongly supported permanent loss of license when the pattern of facts was different, as in this case. In another case, I concluded that Rhode Island was correct when it reinstated the license of a physician who participated in an extensive rehabilitation program, and agreed to continue in ongoing psychotherapy and long term supervision of practice. (see here)

The spokesman for the Massachusetts Board of Registration is quoted as saying that "the board has zero tolerance for sexual misconduct between physicians and patients." I believe that "zero tolerance" is the correct stance, but don't believe that sexual misconduct always requires permanent loss of license. If the Boston Globe article is the full story, a case can be made that this was a single, out-of-character episode that occurred in extraordinarily stressful circumstances. If that is how the Board saw the situation, I believe it acted too harshly.

Is it OK for GP's to have sex with their patients?

For anyone interested in the ethics of doctor-patient sex and the relationship between ethics and law, the recent 5-1 decision of the Supreme Court of Pennsylvania in Thierfelder v Wolfert makes fascinating reading. (If the details interest you, make sure to read Justice Todd's dissent - in my view she got the issue right!)

In 1996 David and Joanne Thierfelder became patients of Dr. Irwin Wolfert, a family physician. He treated them both for conditions that included low libido. In 2002 Ms. Thierfelder told Dr. Wolfert that he had "cured" her problems and was her "hero." They began a sexual relationship that lasted for a year. She became more anxious and depressed and finally ended the relationship in January 2003. She told her husband about the affair two months later, and together they brought malpractice action against Dr. Wolfert.

Dr. Wolfert argued that as a general practitioner he should not be held to the same standard as psychiatrists, for whom a clear duty not to have sexual involvement with patients had been recognized. The court accepted this view on the basis that psychiatrists are trained to recognize and deal with "transference" (reacting to current relationships, like Ms. Thierfelder's with Dr. Wolfert, in terms of past relationships). GPs, the court concluded, should not be held to the same duty of care, since they are not trained to do treatment based on dealing with transference. If they were held to this standard it would discourage them from providing mental health counseling to their patients, which would be a bad societal outcome.

The majority made clear that the fact that Dr. Wolfert's actions were seen as unethical within the medical profession did not mean that he had violated legally enforceable duty. The Pennsylvania Board of Medicine had in fact sanctioned Dr. Wolfert before the Supreme Court heard the case. (It ordered a three year suspension of his license, but stayed the suspension under terms that included professional development activities, 550 hours of community service, and a fine.)

The majority cited Korper v Weinstein, a case in my home state of Massachusetts. Dr. Weinstein had done a breast biopsy on Ms. Korper at the Harvard University Health Service. (It was benign.) After completing her followup care, the two had lunch together, and a consensual sexual relationship ensued. Dr. Weinstein was not involved in a further treatment relationship. When he ended the relationship two years later she brought action against him. The court opined:

Any trust and confidence she placed in the defendant as a person...even augmented by circumstances that made her emotionally dependent on him, did not create a fiduciary duty in the defendant to prevent the personal relationship that developed consensually between them, especially where he terminated the physician-patient relationship as soon as the personal relationship began.

In her dissent, Dr. Todd concluded that (a) general practitioners frequently provide mental health services and are allowed to do so by their licenses and (b) sexual relations with patients is explicitly prohibited by the medical community, with (c) the result that she had "no hesitation in concluding that general practice physicians who provide mental health disorders to patients have a duty to abstain from sexual relations with their patients...and that these physicians may be potentially liable in professional negligence actions for any harm to their patients - patients they pledged to take no action to harm - as a result of engaging in such conduct" (page 18 in the dissent).

I believe Dr. Todd, though outnumbered 5 to 1, was correct. It's widely known that sexual relationships with patients being treated for mental health conditions have high potential for causing harm. Treating mental health conditions is within the purview of general practitioners. The ethical standards of the profession are well-known to prohibit sexual relationships with current patients. It's hard to see why the allegation of malpractice should not have been judged on the basis of its facts, rather than being prevented from coming to trial. The facts would have shown that Dr. Wolfert breached a duty. But it would have to be further shown that this had directly led to damage to Ms. Thierfelder.

The majority did not argue that it's ethically acceptable for general practitioners to have a sexual relationship with patients they are treating for mental health conditions. But in my view their conclusion that seeing a duty not to do so sets too high a standard is insulting to GPs. Being sued for malpractice is every physician's nightmare, but implying that GPs don't have enough understanding of human psychology and the treatment process to know that sexual relations and mental health treatment don't go together is demeaning to their competence and maturity.

Jekyll and Hyde in Medical Practice

 I've written many times about how doctors who exploit patients sexually can provide excellent care to and be idolized by their other patients. I just learned from my friend Dr. Brian Hurwitz that the same can be true for doctors who murder their patients!

I first met Brian when I spent three months at the King's College London Centre for Medical Law and Ethics in 1992. He was doing an MA at the Centre, and allowed me to spend a fascinating day with him in his general practice surgery. For the past ten years he's been D'Oyly Carte Professor of Medicine and the Arts and Director of the Centre for the Humanities and Health at King's College.

Brian sent me a not-yet-published chapter he's written about Dr. Harold Shipman, the GP who was ultimately found to have been a serial killer who murdered more than 250 of his patients. The chapter included this remarkable quote from the son of one of the patients Dr. Shipman was found to have murdered:

I remember the time Shipman gave to my Dad. He would come around at the drop of a hat. He was a marvellous GP apart from the fact that he killed my father.

Shipman never admitted his guilt and refused to talk with psychiatrists, as did his surviving family. He committed suicide in prison in 2004. Although many colleagues and members of the community where he practiced noted strange occurrences in Dr. Shipman's practice, no one was prepared to draw the retrospectively obvious conclusion - a trusted, beloved physician was killing his  patients!

I think the best comment about people like Shipman comes from "The Shadow," an old time radio detective whose adventures I followed as a child. (The Shadow had the gift of invisibility.)

Who knows what evil lurks in the hearts of men? The Shadow knows!

Teacher/student sex

I spent four happy years (9th to 12th grades) at the Horace Mann School in New York, and was startled by a New York Times article in June titled - "Prep School Predators: The Horace Mann School's Secret History of Sexual Abuse." The author, Amos Kamil, had researched the piece for more than a year and had interviewed more the 100 former students and teachers.

The article describes how several teachers in the 1980s and 1990s were well known for "hitting" on students. The article discusses in detail three who preyed on boys. One, possibly two, committed suicide after finally being dismissed. But the sexual exploitation had gone on for many years. It's hard to believe that the administration was unaware of what was happening. The author himself was invited to the home of Inslee Clark, the head of school, and, although underage, was given alcohol, at a small dinner that included one of the teachers known for hitting on boys.

In the world of organizational ethics there's a saying: if the CEO isn't "chief ethics officer" as well as "chief executive officer," don't waste your time on organizational ethics. Leaders set the moral tone of organizations by what they practice, not what they preach. Clark's alcohol-laced dinner suggests that he was setting an atmosphere that tolerated what in the medical world is called "boundary violations."

There's a structural similarity between the doctor/patient relationship and the teacher/student relationship. We give doctors and teachers authority and respect for helping us cultivate our capacities for health and wisdom. We expect them to focus on the needs of their patients and students, and to put their own private desires into the background. Sexual interest isn't a violation of that trust. Overt behavior is.

Neither I nor my best friends from high school had any knowledge of teacher/student sexual relationships, but we were at Horace Mann 25 years before the period the article discusses. But Tek Young Lin, a new teacher in our days, now 88, acknowledged that he had sexual relationships with students in the 1960s and 1970s. Tek was a Buddhist and a beloved English teacher. I remember him as a charismatic, profoundly educative person. The candor I remember him for was reflected in the interview he did with the New York Times:

 "in those days, it was very spontaneous and casual, and it did not seem really wrong...if I had in any way harmed them, hurt them, I am truly, truly sorry. I hope if they have been hurt, they will overcome that hurt, and I should be very happy to help in any way I can." 

 The fact that a beloved teacher could also be an exploiter is consistent with comments made on this blog by former patients of physicians who'd lost their licenses for boundary violations. It's clear that teachers, like doctors, who violate boundaries with some, may provide superb education to others.

An article in yesterday's New York Times reports that alumni are unhappy with what to them seems like a "cold" reaction on the part of current leadership. I'd felt the same way. The disappointing public comments probably reflect the misguided legal advice the school administration was given - to say nothing that could be used against the school in court. This is what lawyers used to advise physicians in situations of bad outcomes. That defensive approach is now seen to be (a) inhumane and (b) bad strategy for preventing malpractice litigation.

I take three lessons from these unhappy stories about my high school. First, we humans are open to a wide range of feelings and fantasies. In relationships like teacher/student and doctor/patient we should expect that the full range of emotions can enter in (on both sides). Professional education should help us become better self-observers and self-managers, so that we can govern ourselves in accord with our professional responsibilities. Second, leadership matters. Inslee Clark set a permissive example. Likewise, in years past, leaders in medicine did the same. Medical leaders hushed up allegations against colleagues, just as bishops did with offending priests. Finally, when a problem hits the fan, respond as Tek Young Lin did, not as past medical leaders and bishops did - take responsibility for the situation, apologize, and make amends when possible.

(For the initial article about "Prep School Predators" see here. For the article about my teacher Tek Young Lin, see here. For yesterday's article about alumni reaction to how the school is handling the situation, see here.)

Is This Doctor-Patient Marriage Unethical?

I shouldn't have been surprised that the most read posts on this blog have been about doctor-patient sex. When I recently had occasion to review these posts a comment I received on April 23 last year caught my attention:

Let us face it squarely. There are only 4 women that a newly qualified overworked doctor intern is exposed to: a fellow doctor (usually out of reach), a nurse (may lead accusation of sexual harassment) a bar waitress (usually not of the best social character) and the patient. I chose the latter and am happily married to her for 8 years. Did I breach the ethics? Can a distinction be made between sexual attraction and real love?

In my response I made an initial sortie into the connection between professional ethics and the ethics of personal relationships. But in retrospect I wish I'd been clearer:

Congratulations on 8 happy years of marriage. I don't know what area of medicine you're in, and what its code of ethics states. In my own specialty - psychiatry - the code asserts that sex with current or former patients is unethical. So if you're a psychiatrist, the code answers your question - you did breach the ethics of the specialty....

So - you may have violated the ethics of your area of medicine, but I'm guessing that you and your wife distinguished right from the start between "real love" and "sexual attraction." You have 8 years of evidence that you got it right! For you as individuals the professional ethics precept would have been a bad guide. 

Suppose the ethics committee of the former intern's medical specialty were asked to review the ethics of the relationship he formed with his patient 8 years ago. For my specialty (psychiatry), the answer would be unambiguous. Forming a romantic or sexual relationship with a current or former patient is defined as unethical.

Given that he violated the ethics of his specialty, should he be disciplined?

If there had been no problems in his medical practice in the subsequent 8 years I think the right outcome would be (a) to reaffirm the correctness of the ethical standard but (b) to find a way of not disciplining him, while (c) being careful not to set a precedent that undermines the standard.

The rationale for defining romantic/sexual relationships with current and former patients as unethical is twofold: to protect patients from the harms that these relationships can cause, and to prevent the loss of trust in the profession that would accrue if the public concludes that physicians are prepared to exploit patients for personal gain, as by "hitting" on them. The former intern's happy marriage isn't evidence against the standard. The standard doesn't claim that every doctor-patient romantic/sexual relationship will result in harm, just that we know that harm is a significant possibility and is difficult to predict. And the happy marriage says nothing about the overall trustworthiness of the profession.

If this was a current question for a physician with no pattern of exploitation, an ethics committee might require an extended period of supervised practice. Assuming the former intern has practiced in exemplary fashion for 8 years, that would exceed what a probationary period would entail. As a member of the specialty society it's important for him to understand and support the ethical precepts of the society. As a response to the violation that occurred 8 years ago, the ethics committee might ask the former intern to write an essay on how he would respond to a colleague who asked him: "Look how well your doctor-patient relationship worked out - why should I follow the ethical standard on this?"

If the intern's medical specialty and medical society held the same standard as the American Psychiatric Association, the relationship he formed with his patient violated the ethics of the profession. But his report of 8 years of happy marriage suggests that the ethics of his personal relationship is excellent. The professional and personal domains overlap, but not totally. Four years ago I argued that the Karolinska Institute in Stockholm did the right thing in expelling a medical student who had been convicted of murder 8 years earlier, even though he performed competently in his student role.

In the U.K. the medical profession does not have a blanket ethical rule against romantic/sexual relationships with former patients. The General Medical Council (GMC), whose role is to "ensure proper standards in the practice of medicine," has formulated guidance about professional boundaries in terms of personal ethics. Recast to eliminate reference to the doctor-patient relationship, the values in the GMC espouses could form the basis of a high school or college class on relationship ethics:

• You must not pursue a sexual relationship with a former patient, where at the time of the professional relationship the patient was vulnerable, for example, because of mental health problems or because of their lack of maturity.
• Pursuing a sexual relationship with a former patient may be inappropriate, regardless of the length of time elapsed since the therapeutic relationship ended. This is because it may be difficult to be certain that the professional relationship is not being abused.
• If circumstances arise in which social contact with a former patient leads to the possibility of a sexual relationship beginning, you must use your professional judgment and give careful consideration to the nature and circumstances of the relationship, taking account of the following:
     (a) when the professional relationship ended and how long it lasted
     (b) the nature of the previous professional relationship
     (c) whether the patient was particularly vulnerable at the time of the relationship, and whether they are still vulnerable
     (d) whether you will be caring for other members of the patient's family