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By now, every practicing health care provider in the state of California should know that sexual involvement with one's patient or ex-patient is illegal. There are four specific California laws that deal with this issue. The first one, B&P Code #726 was passed in 1979 and applies to all health care professionals. The second and third were part of the recommendations of the 1987 California Senate Task Force on Psychotherapist Patient Sexual Involvement: Civil Code Section #4.93 specified that sexual involvement with a patient by a psychotherapist constitutes a "cause of action" against the psychotherapist, if sexual involvement occurred "during the period the patient was receiving psychotherapy by the psychotherapist" or "within two years following termination of therapy" or "by means of therapeutic deception." The third is B&P Code #728 which requires that psychotherapists provide any patient, who alleges sexual involvement with a prior psychotherapist, with the California brochure, "It is Never O.K.," which provides patients with information about their rights and options for redress. The fourth one is B&P Code #729, which criminalized sexual involvement for repeat offenders, and at the discretion of the judge for one time offenders as well. Finally, in California, like in all states, it is a felony to have sexual intercourse with a minor. This, of course, applies to minors as patients (child or adolescent). Sexual involvement with patients is not only illegal, but most crucially, it is unethical. The American Psychiatric Association was the first among the medical specialties to address the problem, through specific ethical guidelines and ethics procedures to deal with complaints against its members, as well as through the development of specific educational programs aimed at primary prevention. Psychiatric practice uniquely utilizes the physician/patient relationship in the service of treatment and highlights the issues of trust, inequality of power and fiduciary duty owed to patients by their psychiatrists. Until recently, there was a widespread misconception that, while the above principles were crucial and essential for psychiatry, they didn't necessarily apply to the entire health care field. In 1990, the AMA clarified the issue by unequivocally stating that sexual or romantic involvement with a current or former patient is unethical and inconsistent with the physician-patient relationship. At this time, there is uniform agreement on the ethical issues by the AMA, APA and all of the non-medical health care professions. However, the problem as well as controversy around aspects of the problem persist. There are no specific data about the incidence of sexual misconduct in the field of child and adolescent psychiatry. In my experience, sexual misconduct in this area of psychiatry presents in four different forms: Sexual abuse of a child or adolescent patient by the psychiatrist. While there are no specific data, this is very rare. Such cases are handled by the Attorney General and the Medical Board. They are heard by the Ethics Committee only after the criminal charges and the license aspects have been dealt with and the psychiatrist was either found not guilty of the charges or, if guilty, was placed on probation but still has his or her license to practice. Sexual involvement with an adult who was also a former minor patient is also an extremely rare occurrence. I only know of one malpractice case involving a female patient who had been in treatment between the ages of 8 and 12 years. She returned to treatment with the same therapist at the age of 21-23. This patient alleged sexual misconduct by the therapist during the second treatment period when the patient was an adult. In this case, the patient developed a serious suicidal depression which was directly related to the depth of her betrayal and violation.-* I know of no case where a former child patient and the psychiatrist became romantically and sexually involved years later, after the former child patient became an adult. Such cases are of special interest because they involve post-termination sexual involvement, which is an area of considerable controversy. Child and adolescent psychiatry is guided by the ethical principle "once a patient, always a patient". The persistence of transference and the importance of the therapist as a real person in the life of the patient are clearly recognized in the therapy of minors. The issue of trust and the reality of the therapist as a role model are essential aspects in every treatment, but are particularly so in the therapy of minors. In child and adolescent psychiatry, post-termination and sexual involvement is clearly unethical and provides a strong argument against the view that post-termination sexual involvement with a former patient, years later, may represent "exceptions" to the generally agreed principle that sexual involvement with patients is unethical. Sexual involvement by the therapist of a minor with that patient's relative. Unfortunately, this is the most common occurrence in our field. Characteristically, such cases involve divorcing families. In the typical case, a child psychiatrist is consulted by the mother for the treatment of the child during a turbulent divorce. The psychiatrist sees the child in treatment and has regular sessions with the mother. The psychiatrist "falls in love" with his patient's mother and gets sexually involved with her. Such involvement destroys the treatment of the child patient, violates the child patient's trust in the therapist and constitutes a breach of contract with the child's parent. Such cases are examples of gross boundary violations. Boundary violations can occur whenever the exclusivity of the doctor-patient relationship is compromised by the therapist becoming involved in any other type of relationship with the patient or when the therapist assumes an additional role vis-a-vis the patient. In the above cases, in addition to the clear ethical violations there are additional legal aspect. Such cases may involve malpractice if the mother, as well as the child, is also a patient. When the mother is seen as part of the treatment of the child, some courts have found no grounds for malpractice but the mother can sue for "breach of contract" and for damages for intentional infliction of harm which are not covered by malpractice and have to be paid directly by the therapist. The recent movie, Prince of Tides with Barbra Streisand is another example of unethical practice involving boundary violations by the treating psychiatrist, who became romantically/sexually involved with her patient's relative. Boundary violations are not limited to sexual misconduct. Financial and other forms of undue influence and exploitation of the trust and unique power of the therapist in the doctor-patient relationship are seen. These are just as harmful to patients as the sexual ones and just as difficult for patient to recognize and deal with. They often result in both ethics complaints and malpractice actions against the offending therapist. Sexual involvement with a minor by a non-medical mental health
provider who practices in association with or under the supervision
of a child or a???scent psychiatrist in both outpatient and inpatient
settings. This is the second most common manifestation of sexual
misconduct in this field. There are a number of malpractice suits
where child or adolescent psychiatrists were sued for the actions
of non-medical providers under their supervision. Such suits are
very difficult to win because there are many conditions that have
to be satisfied before psychiatrists are found guilty on the grounds
of vicarious liability. psychiatrists have to ensure that their
supervisees are aware of all applicable laws and specifically
address the therapeutic issues around sexualization and the prohibition
against sexual involvement with patients or their relatives. References 1. Gabbard, G.O. "Psychodynamics of Sexual Boundary Violations".
Psychiatric Annals, 1991; 21:651-655. 2. Olarte, S.W. "Characteristics of Therapist Who Become
Involved in Sexual Boundary Violations. Psychiatric Annals, 1991;
21:657-660. 3. American Psychiatric Association Ethics Committee Newsletter, 1990; Volume VI #1 and #2. |