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Consultation Group on Physician Sexual Misconduct
Publication Date: May 13th & 14th, 1995
The Minnesota Board of Medical Practice retained the services of a group of nationally recognized experts on the topic of sexual misconduct by health professionals to provide recommendations on the disposition of complaints of sexual misconduct by physicians. The following report was submitted by these experts to the Minnesota Board of Medical Practice.
This document is public property and may be downloaded and
distributed for personal (but not commercial) use. If you
would like to obtain a printed copy you may direct your
requests to:
Minnesota Board of Medical Practice
2700 University Avenue West, #106
Saint Paul, MN 55114-1080 ph#: 612-642-0538 or
1-800-657-3709
The Minnesota Board of Medical Practice commissioned a consultation group to provide recommendations for the appropriate disposition of sexual misconduct complaints. The Consultation Group met at the Mall of America Grand Hotel in Bloomington, Minnesota, May 13th and 14th, 1995.
Facilitator
John J. Ulwelling
Executive Vice President, Foundation for Medical
Excellence.
Designer of educational programs for physicians on
Board of Medical Practice
Issues. Former Executive Director, Oregon State Medical
Board.
15165 SW 100th,
Tigard, OR 97224. (503) 222-4422.
Report Author
Alison J. Coulter-Knoff, M.D.
Medical Coordinator, Minnesota Board of Medical
Practice.
Chair, Hennepin County Medical Society Abuse Prevention
Project.
Board Certified Family Practitioner. Physicians Neck
& Back Clinic,
3050 Centre Pointe Drive,
Roseville, MN 55113. (612) 639-9150.
Experts
Laurie Auger
Anoka County Victims Services. Coordinator, sexual
assault program for victims.
1081 139th Lane, Andover, MN 55304. (612) 323-5620.
Joe Bloom, M.D.
Dean of Oregon Health Sciences University School of
Medicine. Psychiatrist with background in
forensics.Consultant to State Medical Board; developed
programs in area of impaired physicians and then started work
in area of sexual misconduct.
3181 SW Sam Johnson Park Road,
Portland, OR 97201. (503) 494-6689.
Ted Boadway, M.D.
Director of Health Policy Division of Ontario Medical
Association. Family Practice.
025 University Avenue,
Toronto, Canada M5G 2K7. (416) 599-2580.
Edward David, M.D., J.D.
Chair, Main Board of Licensure in Medicine. Trained in
neurology, forensics and the law. Currently Deputy Chief
Medical Examiner, State of Maine.
498 Essex Street,
Bangor, ME 04401. (207) 947-0558.
Lori Swank Gilbert, J.D.
Enforcement Coordinator for Ohio State Medical Board.
Handles all sexual misconduct cases, coordinates
investigations and deposes victims and physicians.
77 S. High Street, 17th Floor,
Columbus, OH 43266-0315. (614) 466-3934.
Naomi Goldstein, M.D.
Psychiatrist in private practice, with a sub-specialty
in forensic psychiatry. Member, New York State Board for
Professional Medical Conduct, 1978-present; Member Committee
on Ethics, County District Branch, American Psychiatric
Association, 1988-present; Member, Task Force on Physician
Abuse; Member, and Chair
15 W. 81st Street,
New York, NY 10024. (212) 799-6904.
Gerald Kaplan, M.A., L.P.
Psychologist. Executive Director, Alpha Human Services,
sexual offender rehabilitation program. Participated in
drafting of Sexually Dangerous Persons statute. Member,
Minnesota Board of Psychology, sits on discipline committee.
2712 Fremont Avenue S.,
Minneapolis, MN 55408. (612) 872-8218.
Jeremy Lazurus, M.D.
Private psychiatrist. American Psychiatric Association
Ethics Committee member for 20 years, former chair. Focus of
work has been in area of physician rehabilitation potential.
8095 East Prentice,
Englewood, CO 800111. (303) 771-0353.
Vivian Jenkins Nelsen
Public representative to consultation group. Co-chair,
legislative committee of violence. Counselor, social
psychologist. Director, Institute for Inter-racial
Interaction: Inter-Race.
Augsburg College, Box 212, 600 21st Avenue S.,
Minneapolis, MN 55454. (612) 339-0820.
Patricia Rebbeck, M.D.
Oncology Surgeon. Deputy Registrar, College of
Physicians and Surgeons of British Columbia. Special duty,
physician impairment and misconduct. Clinical Associate
Professor Emeritus, University of British Columbia.
1807 W. 10th Avenue,
Vancouver, BC, Canada V6J 2A9. (604) 733-7758.
Barbara Schneidman, M.D.
Trained in gynecology and psychiatry. Specialized in
area of sexual assault victims. Former member, State
Licensing Board, Washington State. Former President,
Federation of State Medical Boards. Currently Vice President,
American Board of Medical Specialties and member, Federation
of State Medical Boards. Chairs Federation committee on
physician impairment.
1007 Church Street, #404,
Evanston, IL 60201-5913. (708) 491-9091.
Minnesota Board of Medical Practice Support Staff
H. Leonard Boche, Executive Director.
Richard Auld, Ph.D., Assistant Executive Director.
Robert Leach, J.D., Complaint Review Unit
Supervisor.
Minnesota Office of the Attorney General
Linda Close, J.D., Assistant Attorney General, Manager, Health Licensing Division.
The experts giving testimony, the facilitator and the report author wish to congratulate the Minnesota State Board of Medical Practice for taking on the issue of physician sexual misconduct. To our knowledge, no other state medical board has brought in experts to review and help it improve its process. This action on the part of the Board displays their exemplary initiative and innovative standing in the field. We also acknowledge the enormous amount of time and resources that the Board has allocated to this effort. Further, that each one of the Board members as well as the participants of this consultation group are continuing to learn as we proceed. The recommendations that are included in this report reflect, in our opinion, the current state of the art but will undoubtedly require revision as our learning continues.
The individual human factors of the victims as well as those of the physician perpetrators, combined with legal concerns, can make the complexities of dealing with this issue all but overwhelming at times. We have all wrestled with this problem and acknowledge that there are no perfect solutions or any one single set of guidelines that will fit appropriately into the workings of every state medical board. However, we all remain unified in the fundamental belief that patients should not be victims of sexual misconduct at the hands of health care professionals. In the rare event that it does occur, it must be dealt with swiftly and effectively.
The Consultation Group, organized by the Minnesota Board of Medical Practice, was charged with making recommendations to assist state boards in their deliberations over sexual misconduct complaints. The Consultation Group participants were selected by the Chair of the Minnesota Board, James Knapp, M.D., together with the Executive Director, H. Leonard Boche, under the direction of the entire Board. The participants were selected because of their expertise in dealing with matters related to sexual misconduct as well as physician discipline, rehabilitation of physicians, treatment of victims, ethics and professional boundaries in the practice of medicine and/or the proceedings of state medical boards.
The deliberations focused on the emotional and other human needs of the victim together with strategies to better educate professionals and the public. The recommendations were arrived at carefully and thoughtfully and our sincere hope is that they will be of benefit to the Minnesota Board as well as other boards across the United States and Canada.
The recommendations of the Consultation Group are intended to be generic and applicable by all medical boards. The Group was called by the Minnesota Board, and discussion, of necessity, centered on Minnesota law and experience. All boards should view these recommendations in light of their own local law and operating history.
The following report is respectfully submitted by the Consultation Group on Physician Sexual Misconduct.
Recommendations
The Minnesota Board of Medical Practice Consultation Group on Physician Sexual Misconduct arrived at the following recommendations to be considered by state medical boards. Unless otherwise specified these recommendations pertain to the issue of sexual misconduct.
The Consultation Group Recommends:
The percentage of physicians who report that they have had sexual contact with a patient is between one and twelve percent. (1) The percentage of physicians who have felt a sexual attraction toward a patient has been reported to be as high as eighty percent. (2) The number of all types of complaints made to state medical boards has increased dramatically in recent years. The issue of physician sexual misconduct was rarely heard about as few as ten years ago and has now become a major issue for patients, physicians, and state medical boards as well.
It is now well established that a sexual relationship between physician and patient is almost always damaging to the patient. The damage includes, but is not limited to, sexual dysfunction, anxiety disorders, depression, increased risk of suicide and dissociative behavior. (3) Such a relationship also destroys both individual and public trust in the profession.
The medical community is also wrestling with establishing guidelines that will protect the public and allow physicians to continue to genuinely "care" for their patients. Most complaints of a sexual nature, made against providers, represent a failure on the part of the physician due to a knowledge gap, some form of miscommunication, or a simple mistake. It is the rare physician who is truly a predator. However, because that represents the most severe and potentially devastating form, the Consultation Group focused much of their discussion on this small group.
In discussing the predatory physician, the Consultation Group looked briefly at the issue of treatment of the predator. The Group strongly believed that the prognosis for the true predator is extremely poor, and this belief is reflected in a number of the recommendations which follow.
Many states, including Minnesota, have enacted laws that criminalize physician-patient sex. (4) In addition, recent legislation in Minnesota mandates revocation of a physician's license for felony level sexual misconduct. There is, however, considerable misunderstanding regarding lesser boundary violations as is witnessed by the steady stream of complaints this Board has received over the past decade.
Three major themes recurred throughout the two days of discussion. These were concern for the victim, confidentiality and education.
The first and most important theme was the extreme concern all of the participants felt for the victims of physician sexual misconduct. Many of the recommendations were made out of this deep concern. Victims need to be heard; victims should be kept informed of the process; charges of sexual misconduct should be a matter of public record; support resources should be made known to the victims; resolution of complaints should be prompt in order to prevent victimization of others; and a public statement should be written and distributed to educate the public about the expected standards of physician behavior.
A second theme was that of confidentiality. While it was recognized that in the event of a false complaint, the physician's reputation and even ability to practice can be severely compromised if the charges are a matter of public record, the percentage of false complaints is thought to be very low. A rather dated FBI study looking at the rate of false accusations for other types of violent crime found that it occurred in only two percent of cases. The sexual assault literature often quotes this number to dispel the myth that women cry rape, without just cause, with great frequency. While there do not appear to be any reliable numbers available, it is clear that the experts practicing in this area believe them to be very small. Gary Schoener writes that his "experience with more than 1,000 cases of sexual exploitation has yielded only a few in which, we believe, misleading or false information was presented by a complainant." (5) It is often very difficult for a patient/victim to come forward and file a sexual misconduct complaint, for the very same reasons as victims of other types of sexual assault, such as: shame; a feeling that they were to blame; distrust of the system i.e. a fear that they will be further victimized through the process of investigation and hearing; a lack of power and stature in the community relative to the physician; and/or they may not want the physician punished, they may just want the behavior to stop and not happen to anyone else. The Consultation Group also recognized that victims of physician sexual misconduct are likely to have a history of prior abuse which can make it even more difficult for them to report. (6) All of these factors support that the false accusation rate is very low.
Another concern is for the victim's confidentiality. It is possible that the victim might be harmed by the charge being public. The victim's advocacy groups, however, maintain that with appropriate supportive measures this can be minimized, and should not be a reason to keep charges confidential.
The third concern regarding the issue of confidentiality was that state medical boards should be held accountable for their decisions. The Consultation Group felt that the degree of confidentiality in some jurisdictions is excessive and unprecedented in any other area of the law. The final concern cited was that if the public is well informed on how medical boards handle complaints and reassured that appropriate discipline occurs, individuals will be more trusting of not only the board, but their physicians as well.
The Consultation Group was fully aware of the need for confidentiality for both the patient and the physician, as well as the need for due process to protect both parties. Full discussion of these issues resulted in the Group's recommendations regarding confidentiality after careful weighing of state medical boards' responsibility to protect the public.
A third theme that the Consultation Group devoted much discussion to was education. Certainly board members and support staff involved with any aspect of sexual misconduct must be adequately informed. Most serious sexual misconduct complaints are preceded by lesser boundary violation behaviors on the part of the physician, the so-called "slippery slope." (3) Physician-patient sex rarely occurs in isolation. An "exploitation index" has been designed by Epstein and Simon as a learning tool for therapists to identify problem areas that may lead to damaging boundary violations. (7) It is important that the individuals involved in the investigation right on through to those charged with making final decisions recognize factors that may suggest that a physician is likely to have further complaints or problems.
Education of physicians is also critical. With societal expectations changing so rapidly, many physicians are uncertain as to the yard stick by which they will be measured. For example, the Commonwealth of Massachusetts Board of Registration in Medicine adopted a policy in 1994 related to the maintenance of boundaries in the practice of psychotherapy by physicians which is clear and covers a wide variety of situations. (8) The policy addresses such issues as appointment place and time, billing practices, physical contact, self disclosure, gifts, non-sexual social relations, patients' families, and when to consider terminating a patient because of a patient's challenge to the physician's boundaries. Educating the public in addition, not only provides them with useful information, but aids in educating physicians as well. Education of both groups should include information on expected behavior, as well as how and what actions a board may take if a complaint is filed. Two examples of position papers (Ohio and Washington State) are cited in the references and available on request. (9,10) In addition to the guidelines that those papers suggest, the consultation group felt it would be important to include that physician-patient sex is always the physician's "fault", and responsibility.
Both position papers suggest that a chaperone be present, or at least offered, for exams of breasts, genitals and rectum. This recommendation is made to protect the patient as well as the physician, however, this practice does not represent standard of care in all states. The ramifications of developing a policy statement including this recommendation should be carefully weighed before implementation.
Disagreements and misunderstandings have been known to occur among state medical boards and various medical associations and academic medical institutions. Because of the sensitive and ever-changing nature of physician sexual misconduct, open communication and information sharing among these three factions within medicine will improve their relationship. It should also promote education of physicians beginning in the early stages of their training. Maintenance of professional boundaries is an integral, every day essential in the practice of medicine and is best learned when it is role-modeled and practiced over time.
The Minnesota Board of Medical Practice Consultation Group on Physician Sexual Misconduct arrived at the following recommendations to be considered by state medical boards. Unless otherwise specified these recommendations pertain to the issue of sexual misconduct.
The Consultaton Group Recommends:
1. That legal notice of a hearing before an administrative law judge or hearing officer be made a public document.
Rationale:The intent of making the notice of hearing public is that it would alert other victims, past or potential, of a professional's nature, especially if the professional has predatory characteristics. The Consultation Group felt that this was an appropriate place in the process to be opened up as the state board makes the determination that a possible violation has occurred. By not opening the process before this point, most complaints will still remain confidential, which would be appropriate, given that there are no findings prior to this point. This recommendation was not supported unanimously by the Consultation Group, due to information regarding the Canadian experience on this issue. The notice of hearing is not only public in some parts of Canada, it is published in a newspaper in the physician's community. This has resulted in a strong backlash from physicians.
2. That the findings and conclusions of the administrative law judge or hearing officer be made public.
Rationale:The Consultation Group strongly felt that the protocols of state medical boards may adhere to a high degree of confidentiality for physicians which is excessive and unprecedented. Further that this would encourage a board to assume overall responsibility and accountability for the entire process. Board deliberation would still remain confidential.
3. That contested case arguments before a state medical board be made open to the public.
Rationale:Same as recommendation number 2.
4. That every state medical board vote be conducted using a roll call vote and be a matter of public record.
Rationale:Same as recommendation number 2.
5. That state medical boards be granted the ability to report criminal matters to appropriate law enforcement agencies.
Rationale:In some jurisdictions, if a board discovers criminal activity such as fraud or sexual misconduct, it is prohibited from notifying law enforcement agencies. All a board can do is encourage the complainant or victim to do so. This creates cognitive dissonance for mandated reporter board members and does not serve the public.
6. That state medical boards develop a position paper for physicians and other health care providers regarding appropriate behaviors in the area of sexuality. For example, provide a private area for patients to undress; do not make comments about body parts unless clinically appropriate; explain the reason for doing a particular exam; etc.
Rationale:To educate physicians regarding ongoing changes in societal expectations. It is the rare physician who is truly a predator. Many complaints arise out of inappropriate behavior on the part of the physician and may be due to a knowledge deficit.
7. That every new state medical board member, complaint staff, medical coordinator, attorney, investigator, and administrative law judge involved in the disciplinary process be given a careful orientation in substantive issues related to physician sexual misconduct, supplemented by relevant reading materials.
Rationale:As indicated in the introductory segment of this report, this is a very complex issue about which no one person, physician or otherwise, has all the answers. It is a rapidly changing area and requires ongoing education. In addition, there are some specific indicators that the Consultation Group felt, if present, would indicate the need for more severe sanctions. The persons involved with the process cannot recognize these indicators if they are unaware of what they are.
8. That psychiatrist(s) with expertise in sexual misconduct cases be retained to provide consultative services to help improve a state medical board's processes including review of difficult cases, evaluations and monitoring of physicians.
Rationale:Sexual misconduct cases are extremely complicated. Many of the predatory type sexual misconduct cases first come to a Board's attention as a result of more minor complaints, often in the area of boundary violations. state medical boards need their own psychiatric consultants. These psychiatrists would assist boards improving their investigative, evaluative and monitoring processes. These psychiatrists would not do evaluations on physicians under investigation, but rather advise medical boards.
9. That the medical leadership of a state (e.g. State Board, Medical Associations, and Academia) meet to explore the nature of physician sexual involvement with patients.
Rationale:To promote and disseminate relevant current thinking on the standard of behavior and societal expectations, as well as to educate physicians regarding disciplinary processes and possible sanctions.
10. That an annual educational program to address issues in the area of sexual misconduct be established. This program should include board members and all supporting staff.
Rationale:Again to provide ongoing education surrounding a rapidly changing and challenging problem.
11. That state medical boards sanction boundary violation infractions.
Rationale:Although it is recognized that not all minor boundary violations regularly lead to sexual misconduct, the Consultation Group strongly felt that relatively minor violations often precede more serious sexual misconduct. Usually physicians are not disciplined for these minor violations. Yet experience tells us that many, if not most, future, more serious infractions will be committed by these same physicians. Serious sexual misconduct violations are preceded by what appear to be relatively minor boundary infractions. Wherever possible, the Consultation Group recommends that physicians be disciplined to discourage future transgressions.
12. That state medical boards discipline professionals who fail to report colleagues of whom they have personal knowledge of misconduct.
Rationale:The Consultation Group felt that sexual misconduct is an extreme violation of patient trust and should not be tolerated within the profession.
13. That state medical boards support/provide educational opportunities for professionals in the area of boundaries.
Rationale:Same as recommendation number 6.
14. That state medical boards develop methods to educate the public, in general, and the complainant, specifically on their procedures and decision making process.
Rationale:In order to develop a level of trust in the public eye that the board is reasonable and effective in dealing with the professionals under its jurisdiction.
15. That in the case where sexual misconduct is proven, serious consideration be given to revocation of the physician's license. The following aggravating and mitigating factors are taken from Crossing the Boundaries, The British Columbia Experience, 1992
Aggravating factors:
Additional aggravating factors as stated by the Consultation Group:
Mitigating factors:
16. That the alleged subject of the misconduct (patient) be more involved in the entire process. This should include: That staff have the ability to inform the patient of the status of the complaint even in cases where the patient was not the complainant of record. That the patient appear before the complaint committee and the administrative law judge or hearing officer in all cases, if the patient is willing.
Rationale:Victims of crime have a desire to be heard and involved in the process. The practice of allowing victims to give their statements in court can assist them in coming to personal resolution and provide better information to the deliberating body.
17. That state medical boards develop a system of support for the patient. This should include referral information regarding advocacy programs provided to the patients from their very first contact with a board.
Rationale:Sexual misconduct victims tend to be more vulnerable individuals and in fact that is often why they were the chosen targets. There is often a reluctance to testify. An advocate can provide emotional support for the patient throughout the process.
18. That it is imperative that the Chair of a state medical board (or designee) establish for a board an open process in which all views of board members will be encouraged. Specifically, differences of opinion on a continuum, from dismissal to revocation should be opened up by the Chair.
Rationale:Given that the average duration of appointment to a board of any individual member is only two and a half years, and that at any one time some of its members may be very inexperienced; further that final deliberations are often conducted without benefit of board staff to provide institutional memory. The Consultation Group felt strongly that Chair Persons of state medical boards encourage all board members to participate and encourage diversity of opinion. This would avoid the possibility of either inexperience or excessive experience on the part of a board or its individual members from inappropriately swaying board decisions. This process will help mitigate against both excessive protection of or retribution towards an accused health care provider.
19. That a mechanism be created to provide continuity in institutional memory for state medical boards.
Rationale:The rationale for this recommendation shares that of recommendation number 18, with the added concern that in many instances, due process considerations may seriously impede good decision making by boards by overly isolating the portion of the board making the decision, effectively forcing decisions to be made in a vacuum.
20. That performance standards relating to the length of time required to complete each stage of the complaint process be established. Further that a system be developed to monitor these standards and problem solve should delays occur.
Rationale:Time delays of twelve months and longer were strongly felt by the Consultation Group to unduly potentially expose additional patients to harm. Further, in the case of false accusation of the professional, prompt resolution of the charges was felt to be in accordance with due process.
21. That the resources of a state medical board and its legal staff be fully committed and utilized to address sexual misconduct cases and the backlog which too often exists.
Rationale:Information presented to the consultation group revealed that there is currently a twelve to eighteen month delay in bringing cases of sexual misconduct to conclusion largely as a result of insufficient investigating staff.
22. That a periodic internal review and critique of the administrative procedures of state medical boards be conducted.
Rationale:The intent of this recommendation is to engage more fully the entire board in its own workings. To create a greater sense of ownership of its own system. Further to identify and establish a method of rectifying system problems and/or failures. The Consultation Group felt strongly that the degree of confidentiality (secrecy) that some state medical boards adhere to in making final decisions is excessive, and unprecedented. The legal framework within which a medical board works may contribute to its inability to protect the public, and therefore needs to be part of the review.
23. That a merit based system for appointment to a state medical board be developed. One component of such a system should include documentation of the appointee's interest and past demonstration of a desire to protect the public from harm.
Rationale:Given that the ultimate charge from the legislature to a state medical board is to protect the public from harm, this recommendation is made to insure that appointees' motives are known and can be demonstrated. The Consultation Group also supported the recommendation of Dr. Barbara Schneidman that she and Mr. Ulwelling through their association with the Federation of State Medical Boards work to design a presentation for the National Governors Conference to educate appointments offices.
24. That members of a state medical board be remunerated with a per diem based on current market value and should include both actual meeting time as well as preparatory time.
Rationale:It is unreasonable to expect that within the current climate of practice that physicians or public members of a board essentially volunteer their time. It was the feeling of the Consultation Group that without adequate reimbursement, recruitment of currently practicing, interested, qualified board members is severely handicapped. Further, it was stated that under-payment of board members in many other states has been shown to have a negative impact on the operations of a board.
1. Gabbard GO, Nadelson C. Professional boundaries in the physician-patient relationship. JAMA.1995;273(18):1445-1449.
2. Wilbers D, Veenstra G, van de Wiel HBM, Weijmar Schultz WCM. Sexual contact in the doctor-patient relationship in the Netherlands. BMJ.1992;304:1531-1534.
3. Strasburger LH, Jorgenson L, Sutherland P. The prevention of psychotherapist sexual misconduct: Avoiding the slippery slope. Am J Psychother.1992;46(4):544-555.
4. Straburger LH, Jorgenson L, Randles R. Criminalization of psychotherapist-patient sex. Am J Psychiatry.1991;148(7):859-863.
5. Schoener GR, Milgrom JH, Gonsi orek JC, et al, eds. Psychotherapists' sexual involvement with clients: Intervention and Prevention.Minneapolis, Minn: Walk-In Counseling Center. 1989:147-155.
6. Chu JA. The revictimization of adult women with histories of childhood abuse. J Psychother Prac & Research.1992;1(3):259-269.
7. Epstein RS, Simon RI. The exploitation index: An early warning indicator of boundary violations in psychotherapy. Bull Menninger Clinic.1990;54:450-465.
8. Massachusetts Board of Registration in Medicine. General Guidelines Related to the Maintenance of Boundaries in the Practice of Psychotherapy by Physicians (Adult Patients).Boston: Massachusetts Board of Registration in Medicine;1994.
9. State Medical Board of Ohio. Position Paper. Physical Examinations by Physicians.State Medical Board of Ohio;1989.
10. Washington State Medical Disciplinary Board. Sexual Misconduct Statement and Policy of the Medical Disciplinary Board.State of Washington, Department of Health, Washington State Medical Disciplinary Board;1992.
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