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Professional boundaries and the doctor-patient relationship

The recent NSW Civil and Administrative Tribunal (“NCAT”) decision finding Dr Aamer Sultan guilty of unsatisfactory professional conduct on 7 April 2017 is a timely reminder of a medical practitioners’ duty to maintain professional boundaries with patients.

Dr Sultan was first registered as a medical practitioner in Australia in 2005. At the time of the allegations under investigation by the Health Care Complaints Commission (“HCCC”) Dr Sultan was working as a locum at Shoalhaven District Memorial Hospital Health Care Emergency Department (“ED”).

After completing his shift in the ED Dr Sultan visited a female patient at about 10.30pm who was admitted to a ward under a surgical team. Whilst he had previously treated the patient on a number of occasions in the ED, he was not involved in her surgical care. It was alleged that he physically examined the patient’s breathing, stomach and chest with no clinical basis or need to conduct the examination at that time; conducted an examination inappropriately by sitting very close behind the patient to examine her with a stethoscope, brushing his hand against her bare breast up to five times and becoming sexually aroused; whilst being sexually aroused, standing close to the patient and making a movement with his hand in his genital area and inappropriately removing a cannula which had been inserted by the surgical team.

NCAT found Dr Sultan had failed to maintain appropriate professional boundaries by visiting the patient late at night when he was not part of the patient’s treating team and without a nurse or chaperone.

Dr Sultan denied his conduct amounted to professional misconduct despite admitting most of the factual allegations. He maintained that the chest examination was necessary and denied the allegation of touching the patient’s breast. Whilst NCAT found unsatisfactory professional conduct, they were not satisfied there was sexual intention or motivation underlying Dr Sultan’s behaviour.

Code of Conduct and Guidelines

Registered medical professionals must abide by a Good Medical Practice: A Code of Conduct for Doctors in Australia published March 2014 by the Medical Board of Australia (“the code”). The important aspects of the code are summarised as follows:

  • A doctor needs to be able to recognise that there is a power imbalance in the doctor–patient relationship, and not exploit patients physically, emotionally, sexually or financially
  • A doctor needs to be able to recognise when the professional relationship has or may become ineffective or compromised, and take steps to end it, whilst informing the patient of the decision and arranging their continued care with another doctor
  • A doctor should avoid providing medical care to anyone they have a close personal relationship with including close friends, staff in their practice and family members. Treating patients in these circumstances may result in a lack of objectivity, possible discontinuity of care and risks to the patient
  • Professional boundaries are integral to a good doctor–patient relationship. They promote good care for patients and protect both parties. Good medical practice involves a doctor maintaining professional boundaries; never using their professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under their care including those close to the patient, such as a carer, guardian, spouse or parent and avoiding expressing personal beliefs to patients in ways that exploits their vulnerability or that are likely to cause them distress.

Further, the Medical Board of Australia has also published a Guideline: Sexual Boundaries in the Doctor-Patient Relationship dated 12 December 2018 (“the Guidelines”). The Guidelines highlight:

  • That sexual misconduct is an abuse of a doctor-patient relationship and can cause significant and lasting harm to patients
  • It is never appropriate for a doctor to engage in a sexual relationship with a current patient.
  • A doctor must only conduct a physical examination of a patient when it is clinically indicated and with the patient’s informed consent
  • Good, clear communication is the most effective way to avoid misunderstandings in the doctor-patient relationship
  • Doctors are responsible for maintaining professional boundaries in the doctor-patient relationship

The Guidelines indicate what behaviour may constitute a breach including:

  • Engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship
  • Conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse
  • Behaviours of a sexual nature including making sexual remarks including sexual humour or innuendo, flirtatious behaviour, touching patients in a sexual way, engaging in sexual behaviour in front of a patient and using words or acting in a way that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire
  • Asking a patient about their sexual history or preferences, when these are not relevant to their healthcare and without explaining why it is necessary to discuss these matters
  • Sexual exploitation or abuse defined as a doctor using the power imbalance, knowledge or influence developed in the doctor-patient relationship to abuse or exploit a patient’s trust or vulnerability for sexual purposes or sexual gratification, including by conducting unwarranted physical examinations
  • Sexual harassment defined as any unwelcome sexual behaviour which is likely to offend, humiliate or intimidate. Sexual harassment is a type of sex discrimination and the Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in some circumstances and such as unsolicited demand or request for sexual favours, comments by the doctor as to their sexual practices, problems or fantasies, making suggestive comments about a patient’s appearance or body and physical assault, indecent exposure, stalking, obscene communications
  • Sexual assault
  • Asking a patient to undress more than is necessary or providing inadequate privacy screening or cover for a physical examination
  • Engaging in a sexual relationship with an individual who is close to a patient under the doctor’s care, such as a patient’s carer, guardian, spouse, family member or the parent of a child patient
  • Engaging in a sexual relationship with a former patient

The law requires registered health practitioners, employers and education providers to report ‘notifiable conduct’ including a doctor engaging in sexual misconduct in connection with practising medicine to the Australian Health Practitioner Regulation Agency (“AHPRA”), to prevent the public being placed at risk of harm. In accordance with the Guidelines for mandatory notifications also published by the Medical Board of Australia, sexual misconduct includes making sexual remarks, touching patients or clients in a sexual way, or engaging in sexual behaviour in front of a patient or client. Engaging in sexual activity with a person who is closely related to a patient or client under the practitioner’s care may also constitute misconduct. In some cases, someone who is closely related to a patient or client may also be considered a patient or client; for example, the parent of a child patient or client.

The Code and Guidelines are very clear as to the professional boundaries a doctor must maintain. There is no justification for a doctor breaching the sexual boundaries and any breaches should be reported to ensure patient care remains paramount.

Here at The Law Office of Conrad Curry we have acted for a number of clients who are victims of doctors abusing their positions. If you have experienced conduct of a similar nature, or been a victim or suffered loss as a result of medical negligence, please contact us to discuss your rights.

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