Sexual
Relationships with Former Patients:
Professional Standards in North America
by Gary Richard Schoener
Gary Schoener is a licensed psychologist and Executive Director of the Walk-In
Counseling Center in Minneapolis, MN. He is the senior author of "Psychotherapists'
Sexual Involvement with Clients: Intervention and Prevention", co-author of
"Assisting Impaired Psychologists", and has written many
articles on this topic. Schoener has consulted in more than 3000 cases of sexual
misconduct by professionals and was a member of the Task Force on Sexual Impropriety of the
American Psychological Association and its Advisory Committee on the Impaired
Psychologist. The Walk-In Counseling Center was the recipient of the 1977 Gold
Achievement Award in Hospital and Community Psychiatry from the American Psychiatric
Association.
This article has been reproduced with permission from the
Walk-In Counseling Center. Copyright © 1998 WICC.
Presented:
Midwest Mental Health Resources -- 13 October 1997 -- St. Paul, Minnesota,
Workshop on Professionals at Risk
Non-psychiatric Physicians
If non-psychiatric physicians are engaged in psychotherapy or counseling related to
emotional issues, the psychiatric standards (below) are recommended by the American
Medical Assn. (AMA). The AMA standard and the general standard of care in U.S. for a
non-psychiatric physician-patient relationship both require a discussion with patient
about implications (e.g. that they can't be a patient again) and termination with referral
to another physician. Although not explicitly stated, cancellation of all medication
prescriptions and having them rewritten by the new physician is advisable since physicians
are generally prohibited from writing prescriptions for persons who are not their
patients. The Task Force on Sexual Abuse of Patients of the College of Physicians &
Surgeons of Ontario recommended no sexual contact until 2 years after last professional
contact. The Committee on Physician Sexual Misconduct of the College of Surgeons of
British Columbia surveyed physicians and found that 41% felt it was acceptable after
referral, 34% said it was not, and 25% were uncertain. Consumers were similarly divided.
If therapy was involved with the treatment, 61% of psychiatrists and 51% of physicians
were opposed, and 72% of the public were opposed. It set no standard, but raised concerns
about involvement with young people, those who are emotionally impaired, as well as the
genuineness of consent, and problems of premature referral.
Psychiatrists
After having various standards for a number of years, the American Psychiatric Assn.,
in 1993, went from a "nearly never OK" standard to an absolute "never
OK" standard (although an article after the debate spoke of the burden being on the
psychiatrist to show that the case was an exception, implying that there might be some
sort of a loophole). In Canada, the Ontario College report (see above) recommended a
"never OK" standard. British Columbia's Task Force said that while "...it
will virtually always be unethical for a physician to have sexual contact with any patient
whose treatment involved psychotherapy," they stopped short of an absolute ban,
allowing for a "rebuttable presumption" that it was not acceptable.
Social Work
For years there was no clear & explicit ban on sex with former clients. The
National Federation of Societies for Clinical Social Work have for some years banned
initiation of relationships with former clients "...whose feelings toward them may
still be derived from or influenced by the former professional relationship." The new
NASW code now prohibits sex with former clients in section 1.09, but states that if a
social worker claims an exception, the full burden is on them to demonstrate "...that
the former client has not been exploited, coerced, or manipulated, intentionally or
unintentionally." The codes also bans sexual contact with clients' relatives or close
personal friends where there is a potential to harm the client, but it is not clear
whether this extends to former clients' relatives and friends.
Marriage & Family Therapists
Since 1 Aug 1988 the American Assn. for Marriage & Family Therapy has forbidden sex
for 2 years after termination. This applies to either spouse or any family member who is
seen in even a single session of marital or family therapy.
Nursing
American Nursing Assn. ethics code does not deal with post-termination involvement with
clients. Where there is not a psychotherapeutic relationship, the situation is less clear.
Periodically one reads of nurses marrying former patients, such as physicist Steve
Hawking's recent marriage to his nurse of many years. As regards psychiatric or mental
health nursing, where there is a psychotherapeutic relationship, the nurse can expect
to be held to a standard similar to that of other mental health professionals. For
example, the Ontario College of Nursing has set a standard wherein sexual contact with a
former patient was prohibited for a year after a psychotherapeutic relationship
terminated, and then only if in the nurse's judgment the relationship would not have a
negative effect on the patient's well-being. (For other nursing care, the nurse may
initiate or engage in a relationship with a patient if it is not anticipated that the
patient will need future care from the nurse.)
In a document published in January 1994, entitled STATEMENT on Psychiatric-Mental
Health Clinical Nursing Practice and STANDARDS of Psychiatric-Mental Health Clinical
Nursing Practice (ANA Council on Psychiatric & Mental Health Nursing, Amer.
Psychiatric Nurses Assn., Assn. of Child & Adol. Psychiatric Nurses, Soc. for Educ.
& Research in Psychiatric-Mental Health Nursing) forbids intimate or sexual
relationships with current clients, and indicates that the nurse "avoids sexual
relationships" with former clients and"recognizes that to engage in such a
relationship is unusual and an exception to accepted practice." This is very similar
to what was until several years ago the standard for psychiatrists -- that it is nearly
never OK to have sex with a former patient. With nursing care which does not involve
psychotherapy, or counseling concerning emotional difficulties, it is likely that the
closest parallel is the stance taken by the American Medical Assn. as regards
non-psychiatric physicians -- namely that the professional relationship must be clearly
terminated and it should be clear that the professional cannot provide for future care
needs.
Other Health Professions
Chiropractors, Occupational Therapists, Physical Therapists, Massage Therapists and
others who do services ancillary to mental health care or provide psychotherapy-like
services in some settings generally have no standards governing the former patient,
although in civil cases they may be held to a general standard for therapists when they
are acting as therapists. Ethics codes for dentists and many other health professions are
silent on the issue.
Pastoral Counselors
The Amer. Assn. for Pastoral Counseling has a prohibition of no sex for two years
following termination of the counseling. For clergy in counseling roles any extra-marital
sex is generally forbidden, even after termination of the counseling relationship by
denominational rules, canons, or expectations.
Chemical Dependency or Substance Abuse Counselors
In this field there is no one generally accepted national code of ethics. In states
like Minnesota which have a certification process or licensure, those codes apply. The
Counselor Code of Ethics With Standards of the Institute for Chemical Dependency
Professionals of Minnesota forbids sexual contact for two years after the termination of
counseling. So does the Code of Ethics of the Minnesota Chemical Dependency Association,
which also forbids creating any client dependency beyond that which is essential to
accomplish the goals of treatment.
The April 11, 1996 draft of the Rules of Professional Conduct (4747.1400) proposed as
part of Alcohol and Drug Counselor Licensing in Minnesota forbids sex within two years of
the end of the professional relationship (subpart 5(C) and further states [subpart 8(D)]
that "A professional relationship between a licensee and a client terminates only
when the licensee or the client formally notifies the other either verbally or in writing
and the client is no longer emotionally dependent on the licensee, as defined in Minnesota
Statutes, section 148A.10, Subdiv. 2. Many substance abuse residential and hospital-based
programs have for years had rules forbidding contact between staff and former clients for
at least a year following treatment, and given the fact that many clients continue in
aftercare for many years, they are still clients even though their original primary
counselors may not have contact with them.
Psychology
After nearly a 15 year debate, during which time the rules were unclear except for the
fact that, after June 1987, it was recommended that terminating in order to have sex was
to be treated as a clear violation, the American Psychological Assn. (APA) created an
absolute prohibition for two years following termination of therapy. Even in relationships
which begin after 2 years the psychologist has the burden of showing there has been no
exploitation, in light of "relevant factors, including (1) the amount of time that
has passed since therapy terminated, (2) the nature and duration of the therapy, (3) the
circumstances of the termination, (4) the patient's or client's personal history, (5) the
patient's or client's current mental status, (6) the likelihood of adverse impact on the
patient or client and others, and (7) any statements or actions made by the therapist
during the course of therapy suggesting or inviting the possibility of a posttermination
sexual or romantic relationship with the patient or client.". A few standards are
provided for terminating: unless precluded by the client's conduct, "...the
psychologist discusses the patient's or client's views and needs, provides appropriate
pretermination counseling, suggests alternative service providers as appropriate, and
takes other reasonable steps to facilitate transfer of responsibility to another provider
if the patient or client needs one immediately.
Licensure Board Standards
State licensure laws or certification laws in each state may include codes of conduct
which define the post-termination relationship with a former client or patient. Most codes
adopt the ethical standards of the major national professional organization for that
profession. However, in some states such as Florida, the standards may be more stringent.
For example, the Board of Licensure of Psychologists in Florida has a rule that for the
purpose of evaluating a case of therapist-client sex, the therapeutic relationship
"...is deemed to exist in perpetuity." This was the first "never OK"
rule.
Criminal Statutes
Minnesota allows for criminal prosecution for sex with a former psychotherapy client
when the sex occurred as a result of emotional dependency or therapeutic deception
(leading the client to believe that the sex is part of therapy or consistent with it). In
the case of the emotional dependency, it must be sufficiently strong to render the client
unable to resist the therapist's advances.
Civil Liability
Strictly speaking, in many jurisdictions, if one can show that the sexual contact with
a former patient grew out of the previous professional relationship so that the ongoing
contact represents a "continuous course of action," there may be liability in a
malpractice action. Minnesota statutes 148.A the cause of action is limited to sex which
occurs within two years of termination, and which occurs as a result of therapeutic
deception or emotional dependency created in the therapy relationship.
Walk-In Counseling Center (WICC) grants permission for a printout to be made,
but asks that multiple reproductions for use as handouts be made known to them.
Please contact them, if you are considering this, to see if they have a more recent
handout or one even more suited to your intended purpose. Any use should properly
credit the sources -- WICC and the AdvocateWeb site
(http://www.advocateweb.org). For permission to reproduce more than one copy,
contact: Walk-In Counseling Center, 2421 Chicago Ave. S., Minneapolis, MN 55404.
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