MANAGED CARE November 2002. ©MediMedia USA
"The heart has its reasons that reason does not know."
-- Blaise Pascal (1623-1662)
The subject of physician-patient boundaries illustrates how well-intentioned policy can be written in a way that is simply too shallow to serve the goals of ethics.
If you've sat on a credentials committee, disciplinary panel, or medical-licensing board, you surely reviewed cases of physician-patient sexual involvement. Our contemporary attitude toward such encounters is to label them, categorically, as "unprofessional conduct." Given that there is no surveillance of this behavior, physician-patient sex comes to the attention of regulatory agencies only when the patient complains. This introduces an obvious bias.
Out of context
The nominal standard establishes a rule of "no overlap": a physician-patient relationship must not coexist with a romantic-sexual relationship. The AMA says: "Sexual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct. Sexual or romantic interactions between physicians and patients detract from the goals of the physician-patient relationship, may exploit the vulnerability of the patient, may obscure the physician's objective judgment concerning the patient's health care, and ultimately may be detrimental to the patient's well-being.... Sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous physician-patient relationship. Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship." Note that this last statement leaves open the possibility that such relations might not be unethical if the physician doesn't exploit aspects of the former relationship. Also, the AMA is silent here about former lovers becoming current patients.
Some states have enacted this policy into law. Colorado's Medical Practice Act specifies a six-month "waiting period" after a professional relationship has ceased before a sexual one may begin. Like the AMA, Colorado doesn't specify how long after a romantic relationship ceases a medical one might begin, stating only that they must not be "concurrent." Other states address — or do not address — this issue with varying degrees of explicitness.
Mental health professionals set even stricter standards. For psychiatrists, it is a violation to cross the "patient-lover boundary" with any person who has ever been in the other role. According to the American Psychiatric Association: "Sexual activity with a current or former patient is unethical.... A therapist who gratifies his or her own needs by exploiting a patient's vulnerability destroys the trust essential to treatment." The APA seems to imply that all sexual relationships are inherently exploitative. But, perhaps this is out of context.
Making nuances fit
From the administrative justice standpoint, a "no overlap" rule is simple to administer and superficially unassailable. But, ethical proclamations are rarely perfect. As a credentials reviewer, I've seen this clause invoked far more often by scorned lovers than by innocent parties. The inflexible letter of the law weighs unfairly on some defendants, and sometimes compels a disciplinary body to impose sanctions that don't fit a case's nuances. In an effort to refine how the "no overlap" principle should be applied, I'd like to throw a small monkey wrench at this naively simplistic construct.
In reducing human behavior to coldly formal, mechanistic terms, we tend to get tripped up. Rules are always problematic, especially those that address highly complex human behaviors. I would argue, I think with good support, that love and mating entail the greatest complexity of anything we do as a species.
Take the scenario of a single doctor practicing in a small town, one who'd like to settle in the area and raise a family — a euphemism for "find a mate." In our society, this involves romance and courtship, and — for most contemporary couples — some sexual behavior.
Because our doctor is the main caregiver in the town, almost anyone is a potential patient. So if our doctor starts "seeing" a local woman or man, he or she risks running afoul of the "no overlap" rule. So, our doctor has the option of dating only residents of the next county or ordering a bride or groom by mail.
When confessional professionals, such as psychiatrists and psychologists, mix romance and therapy, both are predictably doomed. But, let's talk about a family physician, surgeon, or internist. Suppose our small-town doctor becomes smitten with a local beau or belle. Let's say both fully understand the potential conflict of interest that arises if the doctor prescribes penicillin for a strep throat. Would you — acting on behalf of the state board — take action against this doctor's license for the offense of providing an antibiotic sample to a current lover? I have seen this occur.
As this example demonstrates, the "no overlap" rule can be unworkably blunt, even in traditional settings. Managed care may compound the difficulty, when a limited panel of physicians presents a patient with an "ineligible" doctor as the only covered choice. You, who are medical directors out there, please consider how you would react to a request for an out-of-network referral based on "personal reasons." The geographic reality doesn't create the ethical bind, but a contractual restriction. I'd counsel any MCO or physician group facing this issue to step out of the way instantly. Saving the network from "leakage" isn't worth the unpleasantness of participating in a sexual boundary suit.
Plans and physician groups should look at their internal norms and written policies, and consider how they'd respond to such scenarios, given current administrative standards.
I confess that my wife and I, both licensed practitioners, have violated the "no overlap" principle on numerous occasions with each other. When we worked in a rural town, and even after moving to the city, we occasionally examined, evaluated and treated each other for medical aliments and injuries. As a married couple, we both could be found guilty of unprofessional conduct by a fundamentalist reading of our state statute, on a strictly scriptural basis. Is this the intent of the law?
An absence of understanding
There is a well-founded ethical and psychological basis for a general proscription of sex between doctors and patients. Scurrilous cases do come before disciplinary boards, in which truly abusive or criminal conduct has occurred. This must be addressed smartly. But the absolute, literal terms in which these issues often are addressed don't always do justice to the range of behavior that I could accept as a member of the profession. One could argue that married couples are an exception,but that view requires an understanding of relationships that is absent from the "no overlap" policy.
Physician-patient romance deserves a sophisticated and courageous ethical analysis. We need to rise above the cynical view that love cannot exist, and sex must be abusive and transient, between people with power disparities. Our professional standards are perfectly rational and make fine common sense. But love obeys different rules.