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Decision 09HDC01342
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Names have been removed to protect privacy. Identifying
letters are assigned in alphabetical order and bear no relationship
to the person's actual name.
General Practitioner, Dr C
A Report by the Health and Disability Commissioner
Overview
The report considers the evidence that general practitioner Dr C
entered into concurrent professional and sexual relationships with
a patient, Ms A, and measures his conduct against professional
standards set by the Medical Council of New Zealand.
Complaint and investigation
On 10 June 2009 the Health and Disability Commissioner (HDC)
received a complaint from Ms A about her relationship with Dr C.[1]
The following issue was identified for investigation:
Whether general practitioner Dr C provided services to Ms A
in accordance with professional and ethical standards between
October 2008 to May 2009, during which period it is alleged that Dr
C had a sexual relationship with Ms A.
An investigation was commenced on 29 June 2009.
Information was received from:
Ms A
Consumer
Mr B
Consumer's former partner
Dr C
Provider/General practitioner
A Medical
Centre
Provider
A PHO
Provider
Others mentioned in this report:
Dr
D
General practitioner
Information gathered during investigation
Background
Ms A was enrolled with a Medical Centre from 2006. Although she
saw several of the general practitioners at the practice, her usual
general practitioner was Dr D.
The records show that between 21 February 2006 and 12 May 2009
Ms A made a total of 51 visits to the Medical Centre for herself or
her daughter. She saw Dr D on four occasions for herself and ten
for her daughter. She saw general practitioner Dr C on two
occasions for herself and six for her daughter. She also saw other
doctors at the Medical Centre.
Consultations with Dr C
Ms A took her daughter to see Dr C on 1 May, 31 May, 9 June, 26
June, 18 July and 25 November 2008. Ms A claimed that Dr C flirted
with her on each occasion. She described his behaviour as
follows:
"I remember one time when he touched the ring I was wearing and
said that he thought that told him a lot about the type of person
that I was - that I was open and friendly and direct. I also
remember a time when I said that he looked very good for his age
and he told me that I didn't look too bad myself. Usually his
flirting consisted of words - paying me compliments all the time
and making me feel good. And lots of eye contact. It's very
difficult to explain. It was a general feeling rather than specific
things that he did."
Ms A had consultations with Dr C for herself on 31 July 2008 and
28 October 2008, because Dr D was unavailable.
On 31 July, Ms A presented with a "cough, maxillary discomfort,
sinusitis". Dr C prescribed temazepam ("as needed for sleep") and
ciprofloxacin.
On 28 October, Ms A saw Dr C because she was having trouble
sleeping and was nervous about starting her new job. During the
consultation she talked about her relationship problems. Dr C
recalls that Ms A "expressed lack of confidence in [herself] with
return to the workforce, and marital stressors". His notes
recorded, "Talk about work, and lack of confidence, and marital
issues, for short term anxiolytic" and a prescription of diazepam.
Ms A "confessed" her "crush" at this appointment and said that when
she confessed these feelings Dr C "laughed and told [her] that [she
was] lovely" and explained that this was a common sort of thing to
happen in a doctor-patient relationship. Dr C recalls that he
"explained that this could not result in a relationship".
The following day Dr C "shared this experience with one of [his]
peers, and documented the experience". Dr C provided HDC with a
printout of an "inbox report" that showed an amendment to his
notes. On 30 October 2008, he deleted the following text from Ms
A's notes:
"Discussion with [another doctor at the Medical Centre] re [Ms
A] explaining feelings for [Dr C] of a loving nature and [Dr C]
expressing that this is part of a transference process, and not
unusual in medical practice, but should be seen in that light, as
long as both parties are safe. Shared this with [the other
doctor]."
Dr C advised HDC that he deleted this entry because Ms A asked
him to "make sure the information stayed out of the notes".
On 30 October Dr C received a handwritten note from Ms A
thanking him for his professional behaviour, requesting that he
keep the discussion confidential and explaining that she would not
see him again as a doctor. Ms A said that she told Dr C that she
would change doctors to avoid embarrassment, and he assured her
that this would not be necessary because they were both grown-ups
and should be able to handle the situation. Ms A said that Dr C
provided her with reassurance that they could continue having a
doctor-patient relationship without embarrassment. In contrast, Dr
C advised HDC that on 31 October 2008 he called Ms A "confirming
receipt of the note, and confirming that I was not her doctor, and
I was not going to see her again as a doctor".
On 25 November 2008 Ms A took her daughter, who had had a fall,
to the Medical Centre. Dr C was the emergency doctor on that day.
Ms A claimed that Dr C "again flirted" with her and she concluded
that "he must have felt the same way" as she did. She stated that
the door was closed during the consultation. In contrast, Dr C
recalls that their conversation was friendly, frank and open, and
that most of it occurred with the door open, allowing Ms A's
daughter to wander from the room into the play area. He stated that
"no sexual advances of any sort occurred at this time".
Sexual relationship
On 27 November 2008, Ms A emailed Dr C asking him whether his
email address was confidential. Dr C advised HDC that he believed
at the time that they were developing a friendship within the
context of a work relationship, because she was working at the PHO
and he had a business relationship with the PHO. Ms A denied this,
stating that Dr C knew that it was not a business relationship
because, if it were, she would not have asked for the emails to be
treated as confidential.
During March, April and May of 2009 there were email
communications and numerous texts between Dr C and Ms A.
Both Dr C and Ms A agreed that they had sexual intercourse once.
Dr C recalls that this occurred on 3 April 2009. On 1 May 2009 Dr C
emailed Ms A:
"You also know that what we've done is wrong from a medical
ethical point of view, and whatever you and I think about it
privately I and indirectly those dependent on me would be punished
for this."
Dr C acknowledged in other email communications that he was
aware that the relationship was inappropriate.
On 17 May 2009 Dr C texted Ms A to say that he was in trouble
with his wife. His wife had enquired about his phone use and he had
admitted his relationship with Ms A.
Dr C and his wife went to Ms A's workplace the next day. Ms A
stated that Dr C's wife confronted her. Dr C's wife then telephoned
Ms A's partner, Mr B, and told him about the relationship. Dr C and
his wife informed the Medical Centre of the situation at a meeting
on 20 May 2009. The Medical Centre advised HDC that they were not
told at this meeting that Dr C's wife had contacted Mr B.
Ms A considers that she was taken advantage of by Dr C when she
was in a vulnerable state because of her relationship difficulties.
Her former partner, Mr B, advised HDC that Dr C's actions in
entering into a relationship with Ms A has harmed Mr B and their
children.
Dr C's response
Dr C admits that he had a sexual relationship with Ms A:
"I consider that I have made a grave error of judgement in
entering into this relationship, and have done substantial work
into understanding the process whereby I entered into this
relationship, and have a clear understanding of how to prevent a
similar situation in the future. I am deeply sorry for the hurt my
behaviour has caused [Ms A] and her family, my wife and my family,
and my professional colleagues and patients."
Dr C advised HDC that in late 2008 he was becoming increasingly
unwell with a recurrence of an illness, considering further
treatment, and recovering from a marital problem.
By letter dated 21 December 2009, Dr C advised HDC that he is
agreeable to a senior colleague being appointed by the Royal New
Zealand College of General Practitioners to provide mentoring to
him four times a year until 31 March 2012.
Relevant professional standards
The Medical Council of New Zealand's Sexual boundaries in
doctor--patient relationship: A resource for doctors (October
2006)[2] states:
"Council has a zero-tolerance position on doctors who breach
sexual boundaries with a current patient. In the Council's view it
is also wrong for a doctor to enter into a relationship with a
former patient or a close relative of a patient if this breaches
the trust the patient placed in the doctor."
…
"A breach of sexual boundaries comprises any words, behaviour or
actions designed or intended to arise or gratify sexual desires …
It incorporates any words, actions or behaviour that could
reasonably be interpreted as sexually inappropriate or
unprofessional."
…
"It is difficult for any professional to objectively assess the
appropriate action when he or she is attracted to a client. By
recognising the danger signs you can consciously avoid any improper
behaviour before any damage is done."
…
"If you … feel attracted to a patient ask for help and advice
from a respected peer who can help you decide the appropriate and
ethical course of action."
…
"A sexual relationship between you and a family member of a
patient will always be regarded as unethical if it can be shown
that you have used any power imbalance, knowledge or influence
obtained as the patient's doctor."
…
"Because each doctor-patient relationship is individual, and
because everyone reacts differently to circumstances, it is
difficult to have clear rules on when it is or is not acceptable
for a doctor to have a relationship with a former patient."
The New Zealand Medical Association's Code of Ethics
(2008) recommends:
"Doctors, like a number of other professionals, are involved in
relationships in which there is a potential or actual imbalance of
power. Sexual relationships between doctors and their patients or
students fall within this category. The NZMA is mindful of Medical
Council policy in relation to sexual relationships with present and
former patients or their family members, and expects doctors to be
familiar with this. The NZMA considers that a sexual relationship
with a current patient is unethical and that, in most instances,
sexual relations with a former patient would be regarded as
unethical, particularly where exploitation of patient vulnerability
occurs. It is acknowledged that in some cases the patient-doctor
relationship may be brief, minor in nature, or in the distant past.
In such circumstances and where the sexual relationship has
developed from social contact away from the professional
environment, impropriety would not necessarily be inferred. Any
complaints about a sexual relationship with a former patient
therefore need to be considered on an individual basis before being
considered as unethical."
Decision: No further action
Dr C, a general practitioner, engaged in a brief sexual
relationship in early 2009 (with sexual intercourse occurring once
in April 2009) with a former patient who had consulted him twice
for herself and six times for her daughter, the previous year. Ms A
was a patient of the Medical Centre where Dr C worked, but he was
not her regular doctor.
Ms A and her former partner allege that Dr C acted unethically
in engaging in a sexual relationship with her. In order to
determine the appropriateness of Dr C's conduct, and whether it
breached ethical and professional standards, it is necessary to
analyse Ms A's varying status as a current patient, a family member
of a patient (her daughter), and a former patient.
Current patient
Dr C provided medical services to Ms A on 31 July and 28 October
2008. She had been enrolled as a patient at the Medical Centre
since 2006, although her usual doctor was another GP at the
centre.
It is increasingly characteristic of primary medical care that a
patient will be enrolled with a practice and see various doctors in
the practice, even though one is her main doctor. In such
circumstances, any doctor from within the practice who provides
occasional medical services to the patient enters a doctor-patient
relationship with that patient and is subject to the
responsibilities a doctor owes a patient - including the duties
required by the Code of Health and Disability Services Consumers'
Rights (the Code).
At her second consultation with Dr C, on 28 October 2008, Ms A
had confided her work and marital stresses, and to having a crush
on Dr C. He laughed and told her that she was lovely, then
explained to her that her feelings were common in a doctor-patient
relationship.
This was obviously a warning signal that the professional
boundaries of the doctor-patient relationship could be threatened.
The Medical Council advises that in this situation the doctor
should "ask for help and advice from a respected peer who can help
you to decide the appropriate and ethical course of action". It
appears that Dr C did recognise the significance of Ms A confessing
her feelings for him and subsequently discussed the situation with
a colleague. He deleted reference to this discussion from Ms A's
medical records because she asked him to do so, to avoid any
further embarrassment when she saw doctors at the Medical
Centre.
Dr C followed up the consultation with a telephone call to Ms A
on 31 October 2008. They differ in their recollections of the call.
Ms A states that Dr C provided her with reassurance that she could
continue having a doctor-patient relationship with him without
embarrassment. Dr C recalls that Ms A confirmed that he was not her
doctor. It is not possible to determine exactly what was said. What
is clear is that Ms A stayed as a patient at the Medical Centre,
but Dr C did not see her again as a doctor other than for her
daughter's visit on 25 November 2008, when he was the emergency
doctor.
Family member
Ms A alleges that Dr C "flirted" with her, mostly when she took
her daughter to see him. Ms A cannot remember the dates or the
specific events but claims that Dr C paid her compliments and made
her feel good. She states: "It was a general feeling rather than
specific things he did."
Ms A recalls that at the 25 November consultation when she took
her daughter to the Medical Centre following an accident, Dr C
"again flirted" with her and the door was closed during the
consultation. She concluded that he "must have felt the same way"
as she did. Dr C recalls the conversation as "friendly, frank, and
open", but that it mostly occurred with the door open and "no
sexual advances of any sort occurred". Dr C did not see Ms A's
daughter again after 25 November 2008.
In relation to sexual relationships with family members of
patients, the Medical Council's statement advises, "A sexual
relationship between you and a family member of a patient will
always be regarded as unethical if it can be shown that you have
used any power imbalance, knowledge or influence obtained as the
patient's doctor."
There is no evidence that Dr C used any power imbalance,
knowledge or influence obtained when treating Ms A's daughter in
his subsequent relationship with her mother.
Former patient
Dr C and Ms A agree that any doctor-patient relationship had
ended by 7 January 2009, when she wrote, "I won't be seeing you in
a doctor-patient situation unless it's by accident" and "Please
forget about the responsibility that you owe me in a professional
sense - that's irrelevant seeing as you are not my doctor
anymore!"
Regarding sexual relationships with former patients, the Medical
Council's statement advises:
"Because each doctor-patient relationship is individual, and
because everyone reacts differently to circumstances, it is
difficult to have clear rules on when it is or is not acceptable
for a doctor to have a relationship with a former patient."
Although there is not a total ban on relationships with former
patients, there are some situations where it would never be
acceptable for a doctor to have a relationship with a former
patient, including if it can be shown that the doctor has used any
power imbalance, knowledge or influence obtained while the
patient's doctor.
I accept that the doctor-patient relationship between Dr C and
Ms A was brief. The last appointment did contain an element of
counselling about Ms A's personal and employment concerns. Dr C
appears to have been aware of the dynamics of the doctor-patient
relationship and to have appreciated the concept of
transference.
The limited doctor-patient relationship ended by mutual
agreement after Ms A expressed her feelings for Dr C. It does not
appear to have been ended by Dr C for the sole purpose of starting
a sexual relationship with Ms A.
Both Ms A and Dr C consider they were vulnerable. Ms A said that
she was vulnerable because of her relationship problems. Dr C
stated that he was vulnerable because of his diagnosis of an
illness, the effects of the treatment for this illness, and his
marital issues.
Dr C knew at the time that it was unethical for him to enter
into a relationship with Ms A. In an email sent on 1 May 2009, he
said, "What we've done is wrong from a medical ethics point of
view."
Discussion
Notwithstanding the permissive approach of the NZMA Code of
Ethics, I do not consider it ethically appropriate for a
general practitioner to enter into a relationship with a recent
patient. Trust is especially important in the general
practitioner-patient relationship. Patients look to their GP as a
person in whom they place trust and impart confidences. The
development of an intimate relationship cannot be excused because
the doctor is himself vulnerable. As the professional, it is the
doctor's responsibility to take steps to avoid any blurring of
boundaries in the doctor-patient relationship.
In this case, Dr C was not Ms A's usual doctor. Dr C recognised
the warning signs after Ms A confessed her "crush" at the
consultation on 28 October 2008 and appropriately consulted a
colleague. He also appropriately terminated the doctor-patient
relationship on 31 October, although he did not formally document
this.
Dr C admits that he subsequently entered a brief sexual
relationship with Ms A. He accepts that he made a grave error of
judgement in entering into the relationship. He says that he has
"done substantial work into understanding the process whereby [he]
entered into this relationship, and has a clear understanding of
how to prevent a similar situation in the future".
Mentoring
Dr C has agreed to arrange regular (four times per year)
mentoring from a senior colleague organised by the Royal New
Zealand College of General Practitioners (RNZCGP) for the next two
years (until 31 March 2012).
Conclusion
In my view, Dr C's conduct was ethically inappropriate. However,
in light of all the circumstances (including Dr C's agreement to
receive regular mentoring), I consider that no further action is
necessary.
Recommendations
I recommend that:
- Dr C arrange regular mentoring from a senior colleague four
times per year to be organised by RNZCGP for the next two years,
until 31 March 2012.
- The mentor provide written information to the RNZCGP (by 30
April 2011 for year one and 30 April 2012 for year two) that the
mentoring has occurred and that Dr C appears to be continuing to
maintain professional boundaries.
- The RNZCGP confirm to HDC (by 31 May 2011 for year one and 31
May 2012 for year two) that the mentoring has occurred and that Dr
C appears to be continuing to maintain professional
boundaries.
Follow-up actions
- A copy of this report will be sent to the Medical Council of
New Zealand.
- A copy of this report with details identifying the parties
removed, except the name of Dr C, will be sent to the Royal New
Zealand College of General Practitioners and the District Health
Board.
- A copy of this report, with details identifying the parties
removed, will be placed on the Health and Disability Commissioner
website, www.hdc.org.nz, for educational
purposes.
[1] On 9 July 2009 HDC received a
complaint from Ms A's former partner, Mr B, about the relationship
between Ms A and Dr C, and the response of the Medical Centre once
it became aware of the relationship.
[2] In October 2009, the Medical Council
issued a revised statement on Sexual boundaries in
doctor-patient relationship: A resource for doctors. This
statement postdates these events but, in any event, it would not
have affected the outcome in this case.