New sexual boundary guidelines help to address medico-legal concerns

MDA National medico-legal manager Dr Sara Bird told newsGP the new guidelines largely provide greater clarity and detail, particularly regarding definition of terms and discussion about potential harms of breaching boundaries.
 
The new guidelines address early concerns over draft wording claiming unnecessary physical examinations without informed consent ‘are criminal offences’.
 
In a previous submission to Medical Board of Australia, the RACGP said the draft guidelines ‘might have the unwanted consequence of being misused to support unwarranted claims of sexual misconduct by doctors … routine and important procedures, such as taking a sexual history, could be interpreted as harassment’.
 
The finalised Medical Board of Australia guideline has been softened and now states that ‘unwarranted physical examinations may constitute sexual assault’.
 
It is the first time a guideline on physical examinations has been included.
 
Dr Bird said the physical examination guideline could be confusing, particularly given the context of the guidelines was meant to be around sexual boundaries.
 
‘The example [in the guidelines] of performing an examination on an anaesthetised patient is not an example of a sexual boundary violation. It is an example of a failure to obtain appropriate consent,’ she said.
 
‘It is, of course, necessary to obtain appropriate consent for any physical examination, whether it is an “intimate examination” or not.
 
‘In my experience, most allegations of sexual misconduct which are associated with physical examinations occur when there has been an inadequate explanation of and/or a misunderstanding of the purpose of the physical examination.
 
‘[For example], checking a patient’s apex beat can be interpreted by a patient as the doctor touching or examining her breast, especially if there has not been an adequate explanation of the nature and purpose of the examination.’
 
Dr Bird said there is a second issue related to who gives consent.
 
The final guidelines now state that ‘a doctor must only conduct a physical examination of a patient when it is clinically indicated and with the patient’s informed consent’ and ‘[t]his includes conducting or allowing others, such as students, to conduct examinations on anaesthetised patients, when the patient has not given explicit consent for the examination’.
 
But Dr Bird said there are circumstances where consent would have to be provided by a substitute decision maker, such as treating a patient with dementia.
 
‘In an emergency situation, if it is impractical to obtain consent – for example, the patient is unconscious – the doctor can proceed to perform a physical examination and treat the patient, if it is necessary to save the life of the patient or to prevent serious injury to their health,’ she said.
 
The guidelines include a new section on social media, with warnings about how the communication medium can blur professional boundaries and change the nature of the therapeutic relationship.
 
‘If a patient tries to engage with a doctor through social media, or other digital communication, about matters outside the professional relationship, the doctor should politely decline to interact with them and direct them instead to the doctor’s usual professional healthcare communication channels,’ the guidelines state.
 
The guidelines also include warning signs indicating a doctor is at risk of breaching professional boundaries, such as revealing to a patient intimate details of their life, especially personal crises or sexual desires or practices, patients asking personal questions or being overly affectionate.
 
Medical Board of Australia Chair Dr Anne Tonkin said the new guidelines define the standards of ethical and professional conduct expected of doctors.
 
‘Patients trust doctors to act in their best interests, treat them professionally, protect their privacy and never take advantage of them,’ she said.
 
Ten cases involving allegations of serious sexual misconduct were decided by tribunals in 2017–18, with all receiving an adverse finding.
 
‘It’s hard to believe that in 2018, there is still a need for the Board to issue guidance on the importance of sexual boundaries between doctors and patients,’ Dr Tonkin said.
 
‘While the vast majority of doctors in Australia provide the community with excellent medical care, a small number of doctors cause serious harm to patients when they do not maintain sexual boundaries.’
 
The guidelines will come into effect on 12 December.

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