Cover Table of Contents Section I Section II Section III
	Report of the Maryland Task Force to Study Health Professional-Client Sexual Exploitation

Unfortunately, even when prevention strategies are in place, some health professionals will still sexually exploit their clients. When exploitation occurs, effective intervention is essential to minimize the negative impacts for all involved. Meeting the many needs of those affected requires that a variety of well-considered mechanisms be in place.

For victimized clients, sensitive treatment by mental health professionals with specialized knowledge of sexual exploitation and its sequelae must be available, as must other recovery resources such as survivor-organized networks. Additionally, those victimized must have access to channels for seeking fair and equitable redress through licensing board complaints, church or synagogue complaints, and through the courts. Moreover, in their efforts to redress the wrongs perpetrated against them, victim-survivors should not be excessively and unnecessarily retraumatized.

At public hearings, in work group meetings, and through personal contacts, Task Force members learned of many ways that victim-survivors felt revictimized--both in their efforts to seek treatment and to obtain justice and compensation. On the basis of their study of the recovery environment for victim-survivors in Maryland, the Task Force members recommended specific strategies for enhancing survivors' access to appropriate treatment, to other recovery resources, and to channels of redress. The Task Force's recommendations for victim-survivor recovery appear in Chapter 5.

Professionals who sexually exploit clients can have a range of motivations, and the circumstances surrounding their ethical transgression are unique to each situation. However, despite the complexities of each individual case, it is possible, through careful assessment, to identify those offenders who are likely candidates for rehabilitation and possible return to practice and those who are not. Predatory, sociopathic, and similarly intractable offenders must be removed permanently from practice, but those who can be rehabilitated should be given every opportunity--through psychotherapy, clinical supervision, education, and other rehabilitative measures--to return to practice with a high degree of assurance that they will not sexually exploit another client. Chapter 6 presents the Task Force's findings and recommendations concerning rehabilitation of professionals.

A health professional against whom a client has alleged sexual exploitation must receive all the benefits of due process of law in any legal or administrative procedure. Whether through procedures of licensing boards or through civil or criminal proceedings, the accused professional should be treated with fairness and equity. At the same time, the ethical and moral standards of the professions must be enforced. Chapter 7 presents the Task Force's recommendations for refining the procedures of the health professional licensing boards in adjudicating sexual misconduct cases.

For the professions, effective intervention by licensing boards or through a church or synagogue complaint process can serve a two-fold purpose: First, it sends a clear message to offenders that the profession does not tolerate sexual exploitation by its members. And, secondly, timely and effective intervention can help restore public trust and confidence. It can do this by communicating to the victimized client and to the larger community that the profession's first concern is always for the public safety, and not to protect any member from the appropriate consequences of wrongful behavior.

At the public hearings, the Task Force heard troubling testimony indicating that at least some members of the public sustain a lack of confidence in the professions' abilities to monitor themselves. Implementing the Task Force's recommendations for improved licensing board procedures (Chapter 7) could help to enhance public perception of and confidence in the procedures that the professions follow in handling allegations of sexual exploitation.

The most controversial and challenging issue the Task Force considered was whether to propose criminal sanctions for health professional-client sexual exploitation and, if so, under what circumstances. Most of the controversy surrounding this question pertains to what the Task Force has termed a "sexually exploitative relationship," that is, sexual contact between a professional and patient occurring in a context that may include components that may make it appear, on the surface, to be a mutually consenting relationship. However, this is only one of three forms of sexual exploitation with which the Task Force concerned itself. In addition to "sexually exploitative relationships," the Task Force considered sexual contact occurring during the course of examination or treatment and occurring under the guise of treatment.

The Task Force was unanimous in its view that sexual exploitation under the guise of treatment ("therapeutic deception") should be included as a basis for criminal prosecution as a sexual offense. Task Force members were similarly unified in their judgement that criminal laws in Maryland should specifically cover instances in which the health care provider engages in treatment or examination of a patient for other than bona fide health care purposes or in a manner substantially inconsistent with reasonable health care practices ("non-bona-fide medical treatment").

The Task Force found it more difficult to reach consensus on the issue of whether to recommend criminalizing sexual contact occurring within the context of a sexually exploitative relationship. After significant study and deliberation, the Task Force concluded that a proposed statute to criminalize sexually exploitative relationships should cover only psychotherapists and those persons who perform or purport to perform psychotherapy (e.g., unlicensed counselors). The Task Force's reasoning in so limiting the class of defendants centered on critical distinctions members perceived between the essential nature of psychotherapy and other forms of treatment.

The Task Force concluded that even though transference and a power imbalance exist in all health professional-client relationships, considerable variability exists in non-mental-health settings in the degree to which these phenomena are present and will render the patient incapable of consent. Although some patients in non-mental-health settings may experience emotional dependence approaching that of the psychotherapy situation, there are some instances when these patients may conceivably consent to a sexual relationship. Because of the intense nature of the relationship and the transference inherent in psychotherapy, the Task Force concluded that a psychotherapy client never can.

On the basis of this reasoning, a plurality of the Task Force favored criminalizing sexual misconduct within the context of sexually exploitative relationships but limiting the class of defendants to psychotherapists (including those persons who perform or purport to perform psychotherapy). However, a substantial minority of the Task Force either opposed criminalizing sexually exploitative relationships altogether or sought to extend the prohibition to non-mental-health providers. A fuller discussion of the Task Force's thinking and recommendations regarding criminalization is in Chapter 8.

Some persons who have been sexually exploited seek monetary compensation for damages through civil litigation. To study the issues surrounding civil litigation, the Task Force examined current Maryland law, reviewed relevant statutes from other states, and heard testimony from victim-survivors and from attorneys who represent plaintiffs and defendants in such cases in Maryland. The Task Force concluded that the current environment is unnecessarily retraumatizing for victim-survivors.

On the basis of its findings, the Task Force recommended establishing a special cause of action that would allow a victim to file suit against a health professional who sexually exploits her or him. Along with the special cause of action, the Task Force recommended eliminating consent as a defense, removing unnecessary restrictions or hindrances and providing certain protections for plaintiffs, and holding employers civilly liable if they fail to take reasonable action to prevent sexual misconduct. On the basis of reasoning similar to that discussed concerning criminalization of sexually exploitative relationships, the Task Force decided to limit the class of defendants for the special cause of action to psychotherapists. Chapter 9 provides a full description of the Task Force's rationale and recommendations concerning civil litigation.

Another difficult question raised by the recommendation to establish a special cause of action for sexual exploitation by psychotherapists was whether professional liability insurers in Maryland should be required to provide coverage for sexual exploitation. At present, most professional liability policies contain explicit exclusions for injuries arising out of the insured's sexual misconduct. As a consequence, when victims win awards in court, they are unlikely to collect them or will experience great difficulty doing so. This question raised substantial debate concerning the divergent public policy positions that various stakeholders have taken. Ultimately, the Task Force concluded that insurance carriers should not be required by law to include coverage for sexual exploitation, but that professionals should strongly encourage their professional associations and employers to negotiate with insurance carriers for such coverage. Chapter 10 offers a more thorough discussion of the insurance issue.

Another important issue the Task Force considered was how to provide avenues of redress for those sexually exploited by unlicensed providers. When unlicensed practitioners are involved, the sexually exploited client cannot bring a licensing board complaint, and there is no way to put the provider out of business because no entity having the power to adjudicate complaints or discipline practitioners exists. On the basis of its study of the ways other states have addressed the issue of unlicensed counselors and psychotherapists, the Task Force concluded that many of the complexities involved in the debate over requiring licensure was beyond its purview. The Task Force did note the existence of the problem, however, and suggests that all health professionals in Maryland should be required to be regulated.

However, even though the Task Force did not propose a method for regulating unlicensed providers, it did extend some avenues of redress to clients victimized by unlicensed psychotherapists. In its proposed civil and criminal statutes, the Task Force has suggested language to cover all providers, including those without a license, who "perform" or "purport to perform" psychotherapy. As a protection to the public, the Task Force also recommended that any licensed professional who has lost his or her license through disciplinary action for sexual misconduct should be prohibited by law from subsequently practicing without a license.

Another issue that challenged the Task Force was the question of whether health professionals who learn of an instance of alleged sexual exploitation should be required to report the allegation to the appropriate licensing board. The Task Force concluded that mandatory third-party reporting could have both positive and negative impacts: On the one hand, requiring reporting could offer increased public protection, and it could also assist victims who are willing to have a complaint made, but who, for whatever reason, feel unready or unwilling to make it themselves. On the other hand, mandatory third-party reporting has at least two negative effects: First, it places a professional with knowledge of sexual exploitation in legal jeopardy for not reporting. Secondly, the requirement for a psychotherapist to report an allegation by a client may jeopardize that client's recovery by compromising the necessary confidentiality and trust in the relationship between the subsequent psychotherapist and the victimized client.

On the basis of the deliberations, the Task Force did not favor mandatory third-party reporting. The Task Force did recommend, however, that any health professional learning from a client of an alleged incident of sexual exploitation should provide the client with consumer education materials, such as the brochure described in Chapter 2.

The intervention mechanisms discussed in Section II serve the needs of those involved--for recovery, redress, and

rehabilitation. Some also serve as a deterrent for potential offenders and as a means for victims to vindicate themselves. In addition, the mechanisms described here are intended to provide a resolution or partial resolution to help victims feel whole again. The Task Force observes that some victim-survivors may seek resolution through channels more informal than a licensing board complaint, criminal prosecution, or civil suit. The final chapter in this Section, Chapter 11, describes some of these more informal methods of resolution.

Editor's Note: Because they are of a legal nature, Chapters 7, 8, and 9 follow a different format than the other chapters in this report.

The harm to clients who have been sexually exploited can be extensive. For example, a survey of therapists treating clients who had been sexually exploited revealed that 90% of victims were harmed (Bouhoutsos, Holroyd, Lerman, Forer, & Greenberg, 1983). Researchers who reviewed several studies of injury to victims noted that one study showed that abused gynecology patients reported reactions similar to those reported by abused psychotherapy clients and that another concluded that sexual contact with psychotherapists produces effects that are not significantly different from the impacts of such contact with other health practitioners (Pope & Bouhoutsos, 1986).

The Task Force was charged with "recommending guidelines for counseling and treating clients who have been victimized" - Maryland Code Ann'd, Art 41, § 18-304(c)(4) (1993 Cum Supp.).

FINDINGS

An array of symptoms have been reported among clients sexually exploited: anxiety; depression, sometimes with suicidal ideation and at times leading to suicide; mistrust of men and of therapists; social isolation; guilt and shame; loss of trust in oneself; feelings of powerlessness and perceived incompetency; grief; problems with sexual, marital, or intimate relationships; sexual confusion; cognitive dysfunction; emotional lability or dyscontrol; and reluctance or inability to seek subsequent professional help (Feldman-Summers & Jones, 1984; Luepker, 1989a; Luepker, 1994; Pope, 1989; Pope & Bouhoutsos, 1986; Sonne 1989).

The negative sequelae of sexual exploitation listed above bear a striking resemblance to the symptoms typically experienced by survivors of childhood sexual abuse. Moreover, the recognition of similar dynamics in both situations has led several writers to observe the parallels between psychotherapist-client sexual exploitation and parent-child incest (Bates & Brodsky, 1989; Luepker, 1989b; Pope & Bouhoutsos, 1986) The overwhelming sense of betrayal by a valued and trusted authority figure and the resultant feelings of fear, abandonment, helplessness, loss of control, and grief are very similar in both instances. The victim-survivor's process in recovering from either type of abuse is also similar in many significant ways.

Issues in Sexual Abuse Recovery

Several writers on treating adult survivors of child sexual abuse have described stage models of recovery, associating specific issues or tasks with each stage (Bass & Davis, 1988, l994; Courtois, 1988; Herman, 1992). For example, Courtois's (1988) model enumerates 10 goals that can be viewed as passages in the survivor's recovery:

These 10 issues are as important in recovering from sexual exploitation by a trusted professional as they are in recovering from sexual child abuse. At the same time, the experience of having been sexually exploited by a psychotherapist, clergymember, or other health professional may have specific effects that may influence the degree or intensity with which the client approaches each of the 10 tasks. As one example, even though a client who was sexually abused in childhood may experience difficulty gaining trust in the psychotherapist, gaining sufficient trust to establish a therapeutic alliance may be even more difficult if the client has been betrayed by a previous psychotherapist or other health professional.

In discussing the process of recovering from traumatic stress syndromes, Horowitz (1986) identifies core themes that, when effectively addressed, can facilitate resolution. These include (a) fear of repetition, (b) shame or rage over vulnerability, (c) rage at the source, (d) rage at those exempted, (e) fear of loss of control, (f) guilt or shame, (g) sadness over the loss, and (h) loss of basic assumptions.

Horowitz's (1986) schema is helpful especially because it addresses the existential and spiritual crises that overwhelming life events can precipitate. Victim-survivors of sexual exploitation by a trusted professional frequently report disruption to their spiritual lives. This may take the form of questioning spiritual or religious beliefs, confronting the problem of evil, or calling into question fundamental assumptions by which the survivor has heretofore guided and oriented herself. ⁽¹⁾

Such a spiritual crisis may be particularly significant when the exploiter is a clergymember. Fortune (1989) observes that in such instances not only is the victimization experienced as a betrayal of what should have been a trust relationship, but the betrayal is by one who represents God. Thus it is experienced as a betrayal by God. (p. 87)

Treatment Models for Sexual Exploitation Survivors

Several authors (Luepker, 1989a; Pope & Bouhoutsos, 1986; Pope & Gabbard, 1989) have developed psychotherapy models that are specific to the needs of survivors of sexual exploitation. For example, Luepker (1989a) has developed an assessment and planning model that focuses on three areas: (a) the immediate needs of the client, (b) the client's perception of the exploitation, and (c) the effect of the exploitation on the client's current functioning. Luepker points out that each client will ascribe a particular meaning to the experience of exploitation that is shaped by "dynamically related 'layers' of life experience" (p. 159). She sees the major purpose of treatment as helping the client find relief from the problems that the exploitation precipitated so that the client can readdress herself to the problems that originally brought her into therapy.

Of particular importance in Luepker's (1989a) work is a detailed protocol that clinicians can follow in assessing the client's needs. Luepker's protocol includes a series of detailed questions that may help the therapist and client understand the particular meaning that the client has ascribed to the exploitation. In part, this is accomplished by examining the exploitation within the context of the client's total life situation.

Pope and Gabbard (1989) also emphasize the importance of careful and thorough client assessment. They note that clients who have been sexually exploited may present with multiple problems and that sexual exploitation may not be the client's central concern initially. Often the client's primary concerns may "revolve around the breakup of a marriage, symptoms of depression and/or anxiety, or loneliness" (p. 93).

Pope and Gabbard (1989) recommend taking a supportive approach, at least initially, because the "patient's ego has...been overwhelmed by a traumatic experience" (p. 93). They suggest that psychotherapy with a client who has been sexually exploited works in part by offering a corrective experience: They observe that an important element is the opportunity for the client to "experience and internalize a trusting, respectful, nonintrusive relationship" (p. 94).

Some victimized clients may have special needs that must be considered in efforts to assist their recovery. For example, Fortune (1989) points out a particular characteristic of the clergy-client relationship that can lead to severe harm: By virtue of his or her role, the pastor or pastoral counselor has "access to the spiritual core of a person's being" and "[t]his carries with it a dimension of power exceeding that of the secular therapist as well as an even greater potential for abuse" (p. 87). Fortune goes on to say that attempts to aid a victim's recovery should address not only the emotional crisis that sexual exploitation by trusted clergymember precipitates but also the "crisis of faith" it may engender.

Associate Victims' Needs

Additionally, Luepker (1994) observes that sexual exploitation usually affects not only the "direct victim" (i.e., the exploited client) but also "associate victims," such as the client's partner and family members. She lists a number of needs that can be met by including partners and family members in treatment, including "(a) to help them talk about what they have observed; (b) to provide an overview of the general dynamics of practitioner power abuse as a prelude to the specific dynamics of the trauma suffered by the direct victim; (c) to help family members to understand the symptoms that have been seen; (d) to encourage them to talk together about how they feel about the situation, past and present; and (e) to clarify roles" (p. 124).

Group Treatment

To assist direct victims in their recovery, models for group treatment have been developed. For example, Luepker (1989c) describes a time-limited group therapy model. The focus of this approach is to help clients experience sufficient recovery from the problems associated with the exploitation to resume their previous efforts to resolve the problems that initially brought them to treatment. Luepker reports that "almost all the clients" (p. 193) in the group therapy experienced positive outcomes, including reduced feelings of isolation and relief in discovering similarity among members' experiences and feelings, relief in having an opportunity to share their experiences with others, clarification of mixed feelings about the exploitative therapist, clarification of options for taking action against the abuser, opportunity to mourn, and increased understanding of the role of an informed mental health care consumer.

Sonne (1989) predicated her Post-Therapy Support Project (PTSP) groups on the premise that exposure to other individuals with similar experiences might reduce the individual's sense of isolation and invoke "group objectivity" that could help alleviate individuals' feelings of guilt and self-blame over the exploitation. In assessing the outcome of the PTSP groups, Sonne reports that all clients acknowledged benefits from participation, especially reduced emptiness and isolation, decreased guilt, resolution of emotional lability or dyscontrol, lessened suicidal risk, and reduction in cognitive dysfunction.

Countertransference Responses

Pope and Gabbard (1989), Sonne (1989), and Luepker (1989a) all discuss countertransference responses that may emerge during psychotherapy with a sexual exploitation victim. Potential countertransference reactions these researchers discuss include anger at the exploitative therapist, guilt that a member of their profession has so harmed a vulnerable client, erotic feelings toward the client, discomfort or resentment in relation to potential or actual client needs and demands, and a desire to compensate for the previous therapist's behavior by attempting to be the "perfect" therapist. Although not mentioned by the authors discussed here, it has been noted elsewhere (Nugent, 1994) that some professionals exhibit victim-blaming responses toward clients that may emerge from negative countertransference.

Education as an Aid to Recovery

Schoener (1989b) observes that workshops and conferences on the topic of sexual exploitation have typically attracted victim-survivors, even when those conferences were aimed exclusively at professional audiences. Schoener notes that "virtually every professional group" to whom he has spoken has included at least one victim. Victim-survivors typically find education about sexual exploitation, through reading or attending presentations, of great value in their recovery. Often, they are relieved to learn that they have not suffered a uniquely bizarre experience, that theirs is a known and named phenomenon. Recovery can also be aided by concrete information that explains common responses and symptoms and that points to the possibility of recovery. Moreover, the opportunity to interact with other survivors and with professionals who have concern for this issue can be an important and helpful experience for the survivor.

Survivor Self-Help Groups

Self-help groups often play an important role in recovery from sexual exploitation. Because some victim-survivors are reluctant or unwilling to reenter psychotherapy, such groups can become a highly significant support and resource. Schoener (1989a) describes 10 survivor-organized groups. Since the time of Schoener's article, several more have been established, including Maryland's Treatment Exploitation Recovery Network (TERN), which was initiated by three Maryland sexual exploitation survivors in 1992.(2)

According to a flyer publicizing TERN meetings (see Appendix G), the group's purpose is to "support, inform, and empower those recovering from the effects of sexual exploitation by a helping professional." During regularly scheduled meetings, members are invited to share their experiences in a "safe, non-judgmental environment." Potential benefits of participation are listed as: reducing feelings of isolation and shame, understanding that one is not responsible for one's abuse, rebuilding self-acceptance and self-esteem, gaining hope and support for one's recovery, and learning about options for taking action against one's perpetrator. The flyer states that the group is not intended as a substitute for psychotherapy.

During its first two years of operation, TERN was contacted by approximately 60 individuals, including residents and non-residents of Maryland, who either participated in meetings or wrote letters or telephoned. Although the initial TERN meeting (in April 1992) attracted 16 survivors, the average number of persons attending meetings was five to seven. All but one person participating in the meetings were women. A number of victim-survivors chose not to attend TERN meetings, but they did take advantage of the telephone support by TERN members who volunteered to take such calls in their homes.

The format for TERN meetings is modeled loosely on the format used in 12-step meetings (see Appendix G). A "Welcome" that was adapted loosely, with permission, from a statement read at the beginning of Survivors of Incest Anonymous (SIA) meetings is read, followed by announcements, and introductions. A principal speaker for the evening tells her story, sometimes focusing on a particular theme, such as dealing with guilt and shame, handling angry feelings, or assessing the impact of sexual exploitation on close relationships. Sharing by the other participants follows. A "Closing," again adapted from SIA materials, is read at the end of each meeting.

In an alternate format that has evolved more recently, there is no designated speaker; instead, meeting participants share an evenly distributed amount of time. From time to time, former members of TERN who have moved on in their recovery come back to share not only their story of exploitation but also their story of recovery. Members also exchange information on workshops, attorneys and therapists who have helped other victims, and other resources. A collection of articles and books is available on loan. Participants are not required to make any commitment to attend the group on a regular basis but are asked to adhere to a set of group norms that TERN participants jointly established early in the group's history (see Appendix G).

In addition to providing regularly scheduled meetings, telephone support, and information services, TERN members have been active in educating other survivors, consumers, and professionals about sexual exploitation and its damaging effects. In addition, TERN members have been active in the political arena, testifying before the Maryland legislature. Some members of the Task Force have been involved with TERN.

Herman (1992) and Bass and Davis (1994) have observed that those who have lived through the devastating effects of sexual abuse sometimes take on a "survivor mission" to protect others from the negative experience they have survived or to help others in their recovery. Viewing one's experience in this way can bring a healing spiritual dimension to one's service to others. Herman observes that although "there is no way to compensate for an atrocity, there is a way to transcend it, by making it a gift to others" (p. 207). Some of the survivors who worked on or addressed the Task Force commented that serving in an advocacy or activist role was a healing experience for them.

Survivors' Health-Related Needs

At times, victim-survivors of sexual exploitation have medical needs that should be addressed as part of their recovery. For example, some TERN members have discussed the important role that HIV/AIDS testing has played in their recovery. Although such testing is typically accompanied by feelings of fear and anxiety, survivors usually report great relief when they receive a negative test result. In addition, the prolonged stress that sexually exploited persons typically experience may contribute to other medical problems. For example, stress has been associated with headaches; neck, back, and shoulder pain; skin rashes; increased susceptibility to colds and influenza; allergies; asthma; jaw pain and toothaches; stomachaches and diarrhea; chronic fatigue immune disorder; ulcers; irritable bowel syndrome; hypertension, and other somatic conditions (Boston Women's Health Book Collective, 1984; Samuels & Samuels, 1988).

However, as has been observed of incest survivors (Courtois, 1988), sexual exploitation survivors may be reluctant to seek medical treatment. Clients who have been sexually exploited by a health professional may be particularly fearful of revictimization or of receiving a negative response should they disclose their previous abuse to the current practitioner.

The strategies that Courtois (1988) offers to assist incest survivors in coping with medical appointments may also help the individual who has been sexually exploited by a previous health care provider. These include support, relaxation training, hypnotic and desensitization techniques, assertiveness training, and accompanying the client to the medical appointment. Courtois observes that "it may be particularly useful to discuss where the survivor can exert control and to use role play in preparation" (p. 319). She also suggests encouraging the client to "shop" for health care providers and to view herself as a consumer who is entitled and empowered to receive services from a professional "who shows personal sensitivity and a willingness to work with the survivor's individual concerns" (p. 319).

Second Injury to Victims

In discussing the recovery of trauma survivors, Symonds (1980) discusses the phenomena of the "second injury" to the victim, which refers to the additional harm done to an already traumatized person that is brought about by negative responses of those around the survivor. Typically, such responses are characterized by the tendency to shift responsibility for the trauma from the perpetrator to the victim. Such blame-the-victim responses further traumatize an already distraught individual by heightening the sense of shame and helplessness. In contrast to the retraumatizing responses that precipitate second injury, Symonds underscores the importance of providing "a healing psychosocial environment" for the trauma survivor.

The Task Force learned of many instances of second injury to clients victimized by their health care providers. Victim-survivors who disclosed their abuse told of negative responses on the part of family members, friends, employers, attorneys, and mental health professionals--such as not believing, discounting, or blaming the victim. Moreover, victim-survivors reported unresponsive and, at times, even hostile treatment in bringing complaints to licensing boards and churches.

A variation of second injury occurred for some survivors who spoke of feeling pressured by others to file a licensing board complaint or law suit against a professional toward whom they still felt ambivalently attached or before they felt ready to take such a step. Additionally, although some survivors spoke of using the legal process to empower themselves, others characterized the process of bringing a civil law suit as an unnecessarily retraumatizing and antagonistic experience.

To minimize second injury to victimized clients and to maximize the possibility of a successful recovery, the Task Force concluded that efforts must be taken, in multiple arenas, to develop a supportive recovery environment for victim-survivors.

RECOMMENDATIONS

Treatment

Recommendation 25. DHMH should expand the priority target populations for its mental health centers to include victim-survivors of sexual exploitation by health professionals, so that survivors can access low-cost treatment at State-administered mental health facilities. This treatment should be provided only by mental health professionals who have received training in treating clients who have been sexually exploited.

Recommendation 26. Sexual assault recovery centers should provide specialized training in treating victims of professional-client sexual exploitation for their clinical staff and hot-line counselors and should conduct outreach and case identification to target victim-survivors and their families for services.

Consumer-Organized Recovery

Recommendation 27. DHMH, in a central location, should house a collection of survivor materials, such as the technical assistance start-up kit developed by Boston's Therapy Exploitation Link Line, the meeting materials developed by Maryland's Treatment Exploitation Recovery Network, the organizing folder developed by STOP Abuse by Counselors in Washington State, and similar resources for organizing and conducting a survivor-run group. The availability of these materials should be published in local newspapers and through other media. The materials should be available, on loan, to consumer groups wishing to organize a recovery group or other network.

Recommendation 28. DHMH should direct State-administered health and mental health agencies to (and religious organizations are encouraged to) make their facilities available, free of charge, for survivor-organized meetings. Such State facilities should also provide, as resources allow, assistance to survivor groups, by helping with start-up, providing telephone use, and underwriting mailing costs and other minimal start-up expenses for survivor groups.

The Task Force also notes that the recovery environment for survivors of sexual exploitation extends beyond the settings of therapy or self-help groups. For some victim-survivors, an important step in recovery is taking action against the exploiter, through filing a licensing board, church, or synagogue complaint; seeking criminal prosecution; or pursuing civil litigation. The recovery environment could be enhanced by implementing the Task Force's recommendations in Chapters 7, 8, and 9 of this report, which are intended to reduce the degree of retraumatization that survivors experience when taking action against the sexually exploitative professional.

NOTES

(1) Because approximately 90% of cases involve a female victim, for simplicity's sake the feminine pronoun is used to refer to victim-survivor in this chapter. The Task Force acknowledges that victims may be either gender.

(2) For more information concerning TERN, contact Sue Romanic; 5471 Columbia Road #622; Columbia, MD 21044; 410-964-9895; sueromanic@aol.com.

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Samuels, M., & Samuels, N. (1988). The well adult. New York: Summit.

Schoener, G. (1989a). Self-help and consumer groups. In G. R. Schoener, J. H. Milgrom, J. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists' sexual involvement with clients: Intervention and prevention (pp. 375-398). Minneapolis, MN: Walk-In Counseling Center.

Schoener, G. (1989b). Workshops and conferences for people who have been sexually involved with counselors. In G. R. Schoener, J. H. Milgrom, J. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists' sexual involvement with clients: Intervention and prevention (pp. 205-207). Minneapolis, MN: Walk-In Counseling Center.

Sonne, J. (1989). An example of group therapy for victims of therapist-client sexual intimacy. In G. Gabbard (Ed.), Sexual exploitation in professional relationships (pp. 101-114). Washington, DC: American Psychiatric Press.

Symonds, M. (1980) The second injury to victims. Evaluation and Change, (special issue), 36-38.

Health professionals who sexually exploit clients have many different motivations, and the specific circumstances surrounding each incident are unique. Some who exploit are ruthless predators, whereas others may be experiencing situational stress or depression and become caught up in a situation that they almost immediately regret. Still others are either naive and uninformed or they believe they are genuinely in love with a patient.

In carrying out its charge to recommend "guidelines for counseling and treating...offenders" - Maryland Code Ann'd, Art. 41, §18-304(c)(4) (1993 Cum. Supp.) - the Task Force struggled with the difficult questions of whether, to what extent, and by what means, professionals who have sexually exploited a client can be rehabilitated.

As observed in the introduction to this report, the majority of offenders are male and the majority of victims female. Therefore, for simplicity's sake, in this chapter the masculine pronoun is used to refer to offenders and the feminine to refer to victims. The Task Force is aware that exploiters can be either male or female, as can victims.

FINDINGS

In its efforts to develop guidelines for rehabilitating professionals who have sexually exploited a client, the Task Force was required to carefully balance many different priorities and needs. On the one hand, there is the compelling need to protect the public and to safeguard professional ethics and standards. On the other hand, there are the severe personal and professional consequences for the offender, such as possibly losing one's livelihood.

In attempting to strike a balance, the Task Force concluded that public protection and the integrity of the professions can be maintained only if mechanisms are in place to provide a very high degree of assurance that an offender will not sexually exploit again. This level of assurance can be achieved only if the exploitative professional has undergone thorough assessment and has participated in a rehabilitation plan customized to meet his particular needs. A "cookie cutter" or "assembly line" approach (Gabbard, 1994) cannot produce the required level of assurance. Rather, through careful assessment, the specific

factors that caused or contributed to the professional's misconduct must be identified, and a rehabilitation plan must be designed to address each of these specifically.

What is Rehabilitation?

The Task Force defined rehabilitation as

A structured sequence of activities including, but not limited to, personal psychotherapy, education, clinical supervision, and practice limitations, the purpose of which is to support the practitioner who has sexually exploited a client in his efforts to resolve personal and clinical issues that caused or contributed to his misconduct so that he may safely return to practice. Rehabilitation plans must be designed to meet the particular needs of the practitioner who has sexually exploited and should result in a high degree of assurance that the practitioner will never again sexually exploit a client.

Indicators of successful rehabilitation should include, at a minimum, the following: The offending professional should complete the rehabilitation process with clear recognition of the absolute inappropriateness of his actions. He should also demonstrate an appreciation of the harm caused to the victim, the victim's family, and any other associate victims such as his own family, practice associates, congregation, and so forth. The practitioner should assume full responsibility for his actions, should not attempt to shift the blame to the victim, and should express genuine remorse. The offender should have received treatment for and resolved any underlying condition(s), such as alcohol or other drug abuse, depression, situational stress, or any other condition that caused or contributed to his exploitation of his client.

At the end of the rehabilitation process, the practitioner should not exhibit any symptoms that could interfere with his ethical judgement or clinical practice. He should also be able to identify those factors that placed him at risk for exploiting the client or patient and should have a concrete plan for how he will handle high-risk situations in the future. The ultimate goal of rehabilitation is to "bring about change in the individual so that he or she will be able to return to practice without the public being at risk for a repetition of the boundary violation or other misconduct" (Schoener, 1995, p. 96).

Gonsiorek (1995) points out the critical distinction between a rehabilitation assessment, which is essentially a forensic evaluation, and a standard psychiatric or psychological assessment. He explains that a psychological assessment generally focuses on broad questions but uses limited investigative methods, such as clinical interviewing and psychological testing. In contrast, a forensic evaluation involves using multiple data sources to "generate a hypothesis and set of derived recommendations that are most consistent with the data available" (p. 156).

Who Can Be Rehabilitated?

At least one expert (Pope, 1990) has raised doubts about whether rehabilitation with sexually exploitative psychotherapists is appropriate or possible. Others (Gabbard, 1989; Gonsiorek, 1995; Schoener, 1995) assert that some sexually exploitative professionals can be successfully rehabilitated, but they point out that certain types of offenders have more favorable prognoses than others and that some should not be placed in rehabilitation at all. To date, there have been no scientifically rigorous studies of the effectiveness of rehabilitation efforts for sexually exploitative practitioners. Studies of other types of sexual offenders do show that those who are treated are less likely to reoffend than those who receive no treatment (Independent Task Force, 1991).

Schoener and Gonsiorek (1987), Schoener (1995), Gabbard (1989), and Gonsiorek (1995) have developed classifications of sexually exploitative professionals, ranging from the least to the most serious types of offenders.

Naive and Uninformed

In Gonsiorek's (1995) schema, a category of candidates with a generally favorable prognosis includes the naive and uninformed. These professionals may lack understanding of the impropriety of sexual relationships with clients, or may be naive about ethical gray areas that, once transgressed, impel them down the slippery slope to increasing boundary violations. Except in the case of the characterologically naive, whom Gonsiorek describes as "too 'dense' to effectively negotiate the boundary dilemmas" (p. 148) necessary for clinical practice, many individuals in this category can be successfully rehabilitated.

Normal and/or Mildly Neurotic

Gonsiorek (1995) has found that the largest group of sexually exploitative professionals falls into the category he calls normal and/or mildly neurotic. He describes the typical professional in this category as "a reasonably well-trained, responsible professional who, at a bad spot in his or her life, is often socially isolated, depressed, and lacking in adequate support, often after the end of a primary relationship" (p. 148). Gonsiorek goes on to describe a pattern of behavior that correlates closely with what Gabbard (1989) has termed "lovesickness" (p. 73): "The professional begins a slow and gradual process of developing a romantic attachment to the client, often by inappropriate self-disclosure, moving to social interaction, and sometimes, but not always, proceeding to romantic and sexual interaction" (p. 148). According to Gonsiorek (1995), those in this category have a "generally good" (p. 148) prognosis for rehabilitation.

Neurotic and/or Socially Isolated

Gonsiorek's (1995) third category of sexually exploitative practitioners includes the neurotic and/or socially isolated. Professionals in this group appear to be similar to those in the first two categories, except that their problems are more long-standing and significant: "They often have ongoing depression, feelings of inadequacy, low self-esteem, and social isolation" (p. 149). Gonsiorek goes on to say that even though those in this group may experience guilt and remorse, they are less able to curb their inappropriate behavior than members of the normal/mildly neurotic category. Also, they typically display greater resistance to acknowledging the power differential in their relationships with victims, maintaining that they had equalized the relationship or that because they truly loved the client, their behavior was not inappropriate. According to Gonsiorek, rehabilitation for sexually exploitative professionals in this group may or may not be feasible, because of the "long-standing and repetitive nature of their problems and the significant cognitive distortions they present" (p. 150).

Impulsive Character Disorders

Gonsiorek's (1995) fourth category of sexually exploitative practitioners consists of those with impulsive character disorders. Members of this group exhibit chronic problems with impulse control and usually have a history of legal or interpersonal problems. Some compulsive sex offenders are included in this group, and some in this group have multiple victims. This type of exploiter rarely appreciates the impact that the exploitation has had on victims. According to Gonsiorek, these individuals are not candidates for rehabilitation.

Sociopathic or Narcissistic Personality Disorders

Twemlow and Gabbard (1989) observe that some sexually exploitative professionals are "ruthless" and "without remorse or empathy for their victims" (p.73). Gonsiorek (1995) includes such exploiters in the category he defines as sociopathic or narcissistic character disorders. Although these individuals typically have "a long history of problems with impulse and behavior controls," this history is often "less obvious because they tend to be far more deliberate and planful. Typically, they are cool, calculating, and detached and often carefully select clients who are vulnerable and/or lacking in credibility should they complain" (p. 151). These individuals should be removed from practice (Gonsiorek, 1995; Schoener, 1995; Twemlow & Gabbard, 1989).

Other Categories of Offenders

Other categories identified by Gonsiorek (1995) include psychotics, for whom the prognosis is generally not favorable; classic sex offenders, such as chronic repetitive pedophiles and physically aggressive sex offenders, who are not considered candidates for rehabilitation; and those medically disabled by either neurological impairment or bipolar mood disorder, for whom the prognosis is mixed.

In summary, various categories of sexually exploitative professionals have been identified, each having a more favorable or less favorable prognosis for rehabilitation. Thorough evaluation is a critical step in determining the likelihood that the practitioner will be able to return to practice without representing a threat to clients or patients.

How Does Rehabilitation Currently Work?

Among the health professional licensing boards in Maryland, there is considerable variation in the procedures for assessing and providing rehabilitation for practitioners who have sexually exploited clients. Some of the boards have considerable experience with the problem of client sexual exploitation. As a consequence, they have established procedures for handling cases. Other boards have virtually no established guidelines.

The Task Force recommends that those boards that have developed expertise in handling sexual complaints (e.g., the psychology and physicians boards) serve as resources to the health occupations boards with less experience addressing sexual misconduct cases. Many of the Task Force's specific proposals build on procedures and resources that the psychology and physicians boards already have in place.

The discrepancies observed among the different boards led the Task Force to recommend that a consistent approach be taken among all of the health professional licensing boards. The Task Force concluded that there should be a standardized protocol for assessing all Maryland health professionals who have sexually exploited clients and for establishing and monitoring rehabilitation plans for them. Such a standardized process would provide protection to the public, as well as an opportunity for rehabilitation to a practitioner who, at its conclusion, might be able to return to practice.

RECOMMENDATIONS

Rehabilitation Consultants and Oversight Panels

Recommendation 29. DHMH should constitute and coordinate a Rehabilitation Consultants Group (RCG) from which four-person groups will be assigned to serve on panels that develop and monitor rehabilitation plans for health professionals who have sexually exploited a client.

The Rehabilitation Consultant Group (RCG) will consist of approximately 22 members: 14 mental health professionals (to serve as case managers and assessment specialists), 3 clergy, and 5 consumers. Consumer members may not be health care professionals or closely related to a health care professional; consumer members of the RCG should not be the same individuals who serve as consumer members of the licensing boards.

The DHMH Appointment Coordinator or designee will request from each licensing board the names of persons recommended to serve and will request recommendations from other sources as appropriate. RCG members will serve staggered terms of 2-3 years in duration, with a maximum one term renewal.

DHMH will be responsible for providing specialized training for new members at the start of their term. The training will cover the dynamics of sexual misconduct, assessment of sexually exploitative practitioners, and the possibilities and limitations of rehabilitation. The costs of training will be shared by the licensing boards, with costs proportional to sexual exploitation case load.

The RCG will elect a Chair, who will be responsible for convening quarterly meetings of the RCG and for establishing Rehabilitation Oversight Panels, as defined in Recommendation 40, to develop and monitor rehabilitation plans. Members of the RCG will volunteer their time as a public service, with the exception of time spent by a case manager and assessment specialist in clinical data-gathering activities. The fees for these data-gathering activities are to be borne by the professional seeking rehabilitation.

Recommendation 30. An Ad Hoc Rehabilitation Oversight Panel (ROP) consisting of a case manager, an assessment specialist, a same-discipline member, and a consumer member drawn from the RCG will oversee each case.

Each Rehabilitation Oversight Panel (ROP) will consist of at least the following members to serve the functions indicated:

Case Manager. A licensed or certified mental health professional will serve as case manager. The case manager will be responsible for coordinating all data gathered in the assessment process. The case manager will obtain appropriate releases and will review patient records, employment records, previous disciplinary records, and any other pertinent written materials. He or she may also conduct data-gathering interviews, as appropriate, with the victim, the victim's family, the perpetrator's family, the perpetrator's employer or colleagues, and any other persons who may have information that will assist the case manager in determining why and how the professional boundary violation occurred. The case manager will be responsible for synthesizing the information elicited in these interviews with that obtained through clinical assessment of the sexually exploitative practitioner to present to the other members of the ROP, will chair ROP meetings, and will prepare all reports that are presented to the referring licensing board or other organization.

Assessment Specialist. A second licensed mental health professional with specialized expertise in personality assessment will serve as assessment specialist. The assessment specialist will conduct a thorough assessment of the health care provider who sexually exploited his client. The assessment specialist will conduct a complete evaluation with the practitioner seeking rehabilitation and will formulate a diagnosis of any pathology or situational problems causing or contributing to the sexual misconduct. The assessment specialist will also offer a prognosis for the exploitative professional's recovery from any pathology identified.

Same-Discipline Member. A member of the same discipline as the sexually exploitative professional will review the offender's clinical conduct and make recommendations regarding educational, supervisory, and practice limitations that should be considered in a rehabilitation protocol, should the offender be judged a suitable candidate for rehabilitation aimed at return to practice. It should be noted that all of the health professions are not represented on the RCG, and that members of the same discipline as the practitioner seeking rehabilitation will be recruited by the RCG Chairperson, through the appropriate licensing board, to sit on the ROP for a case involving a colleague from the same profession. This member must have received the sexual exploitation training provided for members of the health occupations licensing boards (see Recommendation # 6, Chapter 1).

Consumer Member. A consumer member will serve on the ROP to provide input from the perspective of a health care consumer and member of the public.

Recommendation 31. All costs for services rendered by the case manager and the assessment specialist will be paid by the individual seeking rehabilitation.

To avoid potential financial exploitation of the practitioner seeking rehabilitation, the practitioner will pay a flat fee to the case manager and to the assessment specialist at the beginning of the interviewing and assessment process. The RCG will establish an equitable rate, and case managers and assessment specialists will be expected to charge within the rate or rate guidelines the RCG sets.

Recommendation 32. The RCGs and ROPs should be available to each health professional licensing board, to churches and synagogues, and to any other potential referring entities, such as individual practitioners seeking rehabilitation and those referred by criminal courts.

The ultimate purpose of the RCG and Ad Hoc ROPs is to offer a standardized process for the assessment of health practitioners who have sexually exploited a client, and to develop and monitor customized rehabilitation protocols for any such practitioner judged to be a suitable candidate for rehabilitation aimed at return to practice.

Under no circumstances may professionals circumvent the licensing board or Church complaint and disciplinary process by making individual application for assessment and potential rehabilitation. In addition, not all practitioners who have sexually exploited a client will be assessed as suitable for rehabilitation aimed at return to practice. Those judged not to be appropriate candidates for rehabilitation may be referred to vocational counseling to seek employment outside of their former profession.

The Rehabilitation Process

Recommendation 33. Referral will be initiated by an Order from the licensing board of the practitioner who sexually exploited a client.

The Order may take the form of (a) a Consent Order executed by the health care provider after charges that specifies referral to the RCP; (b) a Final Order executed by the Board after a hearing that revokes a license and provides for conditions for reinstatement that include RCG referral; or (c) any other Order providing for conditions of reinstatement.

The RCG Chairperson should establish a Rehabilitation Oversight Panel within 12 days of the date of postmark of the notification of referral. In the next 10 days (i.e., 22 days from the date of the postmark of the referral notification), the ROP should hold an initial meeting to review referral documents and begin the assessment process. The entire assessment should be completed and recommendations regarding rehabilitation reported to the referring body and the practitioner seeking rehabilitation within 45 days, unless extenuating circumstances, for example, cases involving multiple victims, preclude the possibility of completing the assessment and making recommendations within that time frame. In such instances, the ROP case manager may request of the RCG Chair time extensions, in increments of 30 days. The ROP case manager shall notify the referring board and the practitioner of the extension and the new date for submitting the rehabilitation assessment and recommendations report.

Unlicensed practitioners, including clergy, accused of sexual exploitation may avail themselves of the standardized rehabilitation protocol recommended here through self-referral. Licensed practitioners may refer themselves, provided they are not seeking to use the standardized rehabilitation protocol to circumvent a licensing board or Church complaint disciplinary process.

Following the data-gathering process, the ROP will develop a formal assessment and discuss the feasibility of rehabilitation. If the practitioner seeking rehabilitation is not assessed as suitable, then the ROP prepares a report indicating their assessment of the practitioner as unsuitable for rehabilitation aimed at returning to practice, outlining the reasons for their judgement, and offering recommendations for appropriate courses of action, such as referral to vocational counseling, psychotherapy, or other steps. If the ROP assesses the practitioner as a suitable candidate for rehabilitation aimed at return to practice, then the ROP prepares a report of its assessment and recommends a course of rehabilitation designed to meet the particular needs of the practitioner who has sexually exploited his client.

Recommendation 35. ROP rehabilitation plans may include but need not be limited to personal psychotherapy, educational activities, clinical supervision, and practice limitations.

Personal Psychotherapy. One component of the rehabilitation plan may be psychotherapy with a qualified mental health professional selected by the practitioner in rehabilitation from a list developed by the RCG in conjunction with the licensing boards and the Attorney General's Office. All mental health professionals on this list will have received specialized training offered through the DHMH.

It is expected that the course of personal psychotherapy for the practitioner in rehabilitation will, minimally, focus on helping the professional in rehabilitation to (a) recognize the harm done to the victim and her family; (b) develop empathy for the victim's plight; (c) assume full responsibility for his exploitative behavior; (d) understand the power dynamics in helping relationships; (e) develop an understanding of his personal issues that contributed to the offending behavior; and (f) be able to identify high-risk situations and develop a plan to avoid, reduce, or ameliorate risk factors in the future. The mental health professional providing treatment to the sexually exploitative professional must not be the same provider who performed the initial clinical assessment.

Educational Activities. Education may be part of the rehabilitation plan, with any required educational activities tailored to meet the specific knowledge and skill deficits of the professional in rehabilitation. Topics that could be included in an individualized education plan are boundary issues, power dynamics, sexual abuse (impact and recovery issues), and professional ethics. A tutorial approach, involving one-to-one sessions with a mentor who has expertise in boundary violation issues, is considered preferable to broadly-based classroom approaches such as university courses in ethics, which may or may not address the topics of importance to the professional in rehabilitation. In addition, activities designed to sensitize the practitioner in rehabilitation to sexual exploitation issues and dynamics, such as viewing films of survivors or attending survivor panels and so forth, may be helpful.

Clinical Supervision. If a practitioner whose license has been suspended has his license reinstated for a period of probation, the practitioner's rehabilitation plan may include clinical supervision to help ensure that patients receive quality care during the period of probation. The practitioner in rehabilitation should select a qualified clinical supervisor from a list prepared by the ROP in concert with the appropriate licensing board or other regulatory body (such as a Church judicatory). In some instances, more extensive retraining may be indicated, such as repeating an internship or residency.

Practice Limitations. The rehabilitation plan may involve placing restrictions on the types of patients, if any, the practitioner may see or the types of settings in which he may practice while on probation.

Recommendation 36. The ROP will establish a procedure for monitoring the practitioner's adherence to the prescribed rehabilitation plan.

This procedure may involve periodic reports from the treating mental health professional to the ROP, via the case manager, assuring the continued participation in treatment of the practitioner in rehabilitation; brief reports on the practitioner's progress under clinical supervision; reports from the tutorial mentor or written materials produced in the educational process; or other documents or reports as appropriate. The case manager will coordinate the monitoring of the rehabilitation process.

Recommendation 37. In consultation with the appropriate licensing board, the ROP may establish a minimum length of time for the practitioner in rehabilitation to be involved in the rehabilitation process before he may request a reevaluation.

Conclusion of Rehabilitation and Reassessment

When a practitioner in rehabilitation has fulfilled the expectations of the rehabilitation plan, he may contact the case manager for a reevaluation. The case manager will then interview the sexually exploitative professional and contact any supervisors or others involved in the rehabilitation process to elicit their opinions as to the professional's readiness for reevaluation and possible return to practice.

If, in the case manger's judgement, the sexually exploitative professional seems to have adhered to and benefitted from the rehabilitation plan, then he will be referred to an assessment specialist, usually the same specialist who conducted the initial clinical and personality assessment, for reevaluation. Following the reevaluation, the case manager will reconvene the ROP to review the entire course of rehabilitation. During this reassessment, the ROP will give careful consideration to the factors that led up to the boundary violation (underlying pathology, situational personal problems, knowledge or skills deficits, and any others) and the ways in which the practitioner has taken steps to address each of these.

On the basis of its deliberations, the ROP will make a recommendation to the referring body (licensing board, church or synagogue, or other) regarding the efficacy of the rehabilitation process and the readiness of the professional to return safely to practice. The ROP's recommendation will be considered advisory in nature, and final action regarding the practitioner's return to practice will reside with the referring body.

REFERENCES

Gabbard, G. (1994). Sexual misconduct. In J. Oldham & M. Riba (Eds.), Review of psychiatry, vol. 13 (pp. 433-456). Washington: American Psychiatric Press.

Gonsiorek, J. C. (1995). Assessment for rehabilitation of exploitative health care professionals and clergy. In J. C. Gonsiorek (Ed.), Breach of trust: Sexual exploitation by health care professionals and clergy (pp. 145-162). Thousand Oaks, California: Sage.

Independent Task Force Commissioned by the College of Physicians and Surgeons of Ontario. (1991). The final report of the task force on sexual abuse of patients. Toronto, Ontario, Canada: College of Physicians and Surgeons of Ontario.

Maryland. Code Ann'd, Art. 41, §18-304(c)(4) (1993 Cum. Supp.).

Pope, K. (1990). Therapist-patient sex as sex abuse: Six scientific, professional, and practical dilemmas in addressing victimization and rehabilitation. Professional Psychology: Research and Practice, 21, 227-239.

Pope, K., & Bouhoutsos, J. (1986). Sexual intimacy between therapist and client. New York: Praeger.

Schoener, G. (1995). Assessment of professionals who have engaged in boundary violations. Psychiatric Annals, 2, 95-99.

Twemlow, S., & Gabbard, G. (1989), The lovesick therapist. In G. Gabbard (Ed)., Sexual exploitation in professional relationships (pp. 71-87). Washington, DC: American Psychiatric Press.

The Task Force was charged with "[e]xamining...existing legal mechanisms to address "the problem of health professional-client sexual misconduct in Maryland - Maryland Code Ann., Art. 41, §18-304(c)(1) (1993 Cum. Supp.). In studying health occupations licensing laws, boards, and processes, the Task Force addressed three major questions:

- What can the boards do?

- What will the boards do?

- What should the boards do?

This chapter has five sections:

I. Overview of Licensure and Discipline

A. Background

Maryland has 18 health occupations boards.(1) The licensing boards are charged with assuring that licensure applicants meet the qualifications established by law. The boards are also charged with disciplining licensees who violate practice standards set by law. For example, it is unlawful for a

health care professional to practice incompetently, to submit false statements to collect a fee, or to misprescribe drugs. Generally, for such and other conduct, boards discipline licensees in five ways:

Reprimand. The licensee is formally reprimanded in writing. The writing is made a permanent part of the licensee's file and is disclosable to other states and, upon request, to employers and members of the public.

Probation. The licensee is placed on probation for a specific period of time (e.g., one year) and required to comply with specified conditions. The conditions may include reeducation and retraining or employment of a mentor to oversee the licensee's practice.

Suspension. The license is suspended from practice for a prescribed period (e.g., six months). During this period, the licensee cannot practice the profession. A period of probation usually follows licensure suspension. Sometimes a board will issue an order that suspends a license for a specific period of time, but then immediately "stays" or stops the suspension, conditioned upon the licensee's compliance with the terms of probation. If the licensee violates the terms of probation, then the board removes the stay and causes the suspension to take effect.

Revocation. The license is revoked. The common understanding of the term "revoked" is that a licensee cannot ever practice the profession in Maryland again. However, in practice a licensee can petition a board for reinstatement of a license at any time.

Fine. The licensee is fined up to a specified dollar amount for each offense, where provided by regulation. A fine is usually imposed along with other discipline.

B. Effect and Purpose

The effect of disciplinary action on a license can be severe. For example, a practitioner whose license is suspended for six months loses income and patients. Harm to reputation and loss of hospital privileges and HMO memberships or affiliations are likely results. Courts have recognized the severe effect of licensure discipline on licensees.⁽²⁾

Nevertheless, courts have held that licensee discipline is necessary because of the disparity in knowledge and power between patient and provider. In the words of Maryland's highest court

This regulatory power is justified by the fact that the practice of [health care] requires special knowledge, training, skill and care, that health and life are committed to the [practitioner's] care, and that patients ordinarily lack the knowledge and ability to judge [the practitioner's] qualifications.⁽³⁾

Finally, courts have recognized the unique role of licensing boards in holding a mirror of self-examination to the professions and deterring future misconduct. "The purpose of disciplinary proceedings against licensed professionals is not to punish the offender but rather [to act] as a catharsis for the profession and a prophylactic for the public."⁽⁴⁾

C. Procedures

The procedures used for licensee discipline cases are similar to those used in criminal cases. Each licensing board in Maryland is an administrative agency (i.e., an agency charged with administration of a set of licensing laws). When a board takes actions against a licensee, the case is known as an "administrative prosecution."

A board that receives a complaint assigns it for investigation. An investigator interviews witnesses, subpoenas documents, and prepares a report. On the basis of the investigation, the board votes whether to charge the licensee with a violation of its practice act. If the vote is yes, the case is referred to the Office of the Attorney General (OAG) prosecution unit. An administrative prosecutor prepares a "charging document" strongly resembling an indictment. The charges are served on the licensee, now known as a "respondent." The case is tried before an administrative law judge or the board. A written decision is issued on the basis of the evidence.

It is in this administrative forum that boards take action against licensees who engage in sexual misconduct. What can the boards do? They can reprimand, place on probation, suspend or revoke a license. The question is: what do the boards do in sexual misconduct cases?

II. Current Discipline of Licensees for Sexual Misconduct

A. Scope of the Problem

A review of licensure discipline data regarding the scope of sexual misconduct in Maryland yielded three findings:

First, the data shows the extent of the problem. Of all of the cases referred to the OAG from 1991 through June 30, 1995, 11.9% (104/872) involved complaints of sexual misconduct (see Appendix H).

Second, exactly half of all licensing boards have referred cases of sexual misconduct to the OAG. The boards are appropriately grouped as follows:

Sexual misconduct cases involving mental health professionals and psychiatrists account for 38% (40/104) of all cases referred for prosecution.

Third, the nature of the cases differ by type and profession. By type, the cases involve either (a) unwanted touching during treatment or (b) a sexual relationship outside the treatment setting. By profession, cases of unwanted touching are common to the nine referring boards. However, cases of sexual relationships between practitioner and patient outside treatment are limited to the mental health professions and physicians. In other words, none of the physical health boards referred for prosecution any cases involving patient-practitioner sexual relationships outside the treatment setting.

B. Grounds

The health occupations disciplinary laws do not contain specific grounds prohibiting sexual misconduct. However, each board has a statute or regulation that, in one form or another, prohibits "immoral," "dishonorable," "unethical," or "unprofessional" conduct.⁽⁶⁾ Some boards also have codes of ethics. It is under these rubrics that licensees are disciplined for offenses relating to sexual misconduct.

The absence of specific laws prohibiting sexual misconduct between health professionals and licensees is problematic in some cases. Licensees frequently argue that the term "unprofessional conduct" is vague and undefined, or that the conduct they engaged in was not unprofessional or was consensual. Typical of the arguments made is the one from another jurisdiction set forth below:

Heinecke claims that because he had not been given advance notice that his sexual relationship with Jane might constitute "unprofessional conduct" for which his nursing license could be revoked, he was deprived of his license, and livelihood, without due process of law. He argues that nothing in the Nurse Practice Act, nor the administrative rules governing the conduct of nurses, specifically prohibits nurses from having consensual sexual relations with past, or even present patients.⁽⁷⁾

More often than not, board prosecutors must call expert witnesses to establish that the conduct is in fact unprofessional. The very presentation of this evidence means that the judge's or board's attention is distracted from the main issues: Did the conduct occur and what should the board do about it? In addition, the absence of a specific ground for discipline of sexual misconduct may leave at least some licensees uncertain: is it wrong or not?

C. Board Discipline

The Task Force reviewed cases of sexual misconduct resulting in board discipline and consulted with the boards to ascertain their views of the problem. Differences in types of cases, extent of discipline, and policy were present among the mental health, physical health, and physician boards.

1. Cases

a. Mental health. The mental health professions--psychology, social work and professional counselors--have a near-zero tolerance for sexual misconduct of licensees. This is true whether the conduct involves unwanted touching during treatment or a sexual relationship outside treatment. The psychology board imposes licensure revocation, with the proviso that the board will consider a petition for reinstatement after five years, but only if the licensee can demonstrate rehabilitation. The social work board takes a similar approach; its cases typically result in revocation or licensure suspension for periods of one to three years.

The professional counselors board is relatively newly created (six years ago) and has not referred sexual misconduct cases for prosecution. The board has jurisdiction over certified counselors only, and certification in Maryland is voluntary. Board members advised, however, that revocation of certification is usually the appropriate discipline.

Psychiatrists are also mental health professionals, but, as medical doctors, are licensed by the physician's board. As discussed below, the medical board's treatment of sexual conduct cases is more lenient than that of the mental health boards.

b. Physical health. The physical health boards demonstrated a range of responses to sexual misconduct cases--all of which involved inappropriate sexual touching during treatment. Typical cases are discussed below.

In 1988, the chiropractic board revoked a chiropractor's license for sexually touching a patient during treatment. In 1985, the dental board reprimanded a dentist for sexually touching a patient during treatment. For similar conduct nine years later, however, the board suspended a dentists's license for one year. Also in 1994, a dentist received a suspension for sexually touching a patient during treatment, but the suspension was immediately stayed.

In 1988, the physical therapy board suspended the license of a physical therapist who had sexually touched four patients during treatment, but immediately stayed the suspension and imposed conditions upon his practice, including requiring him to treat male patients only. Four years later and after the probationary period, the licensee engaged in similar conduct and the board summarily suspended his license.(8) In 1992, the board suspended one licensee for six months for sexually touching a female patient. Shortly after the period of suspension began, the licensee engaged in similar misconduct. After a hearing, the board revoked the license.

c. Physicians. The physicians' board has imposed different levels of discipline for different licensees, sometimes for similar conduct. Its decisions reflect a developing understanding of this area. These decisions also disclose a clear difference between discipline imposed for touching a patient and discipline imposed for "dating" a patient.

In cases involving inappropriate sexual touching of one patient during examination, the board has typically reprimanded physicians or issued stayed suspensions followed by probation. Sexual relationships between a physician and one patient outside the treatment setting are another story. In 1991-1992, three physicians who each had sexual relationships with one patient received either stayed suspensions or reprimands. Two of the physicians were psychiatrists. However, by the end of 1993, the board began to take a more serious view of this conduct. In December, 1993, an obstetrician-gynecologist's license was suspended for six months for a sexual relationship with one patient, and in 1994, a psychiatrist's license was suspended for one year for a one-patient sexual relationship.

Finally, in a 1993 case(9), the physician's board articulated the basis for discipline of physician-patient sexual relationships and described how it would handle such cases in the future. In that case, a gynecologist had sexual relations with two patients. After a hearing, the judge found that the physician had engaged in unprofessional conduct, citing the Hippocratic Oath.(10) The doctor appealed to the board, arguing that the oath was outdated. The board disagreed, finding that although the Oath is not the "primary standard" measuring a physician's conduct, it "represents the fact that, since 400 B.C., sexual relations between physician and patient were seen as incompatible with the special nature of the relationship and the inherent potential for abuse."

The judge recommended suspension of the license, but only for six months because the doctor's "medical judgment and treatment" were not questioned. The board disagreed, holding that "the exercise of sound medical judgment includes being cognizant of professional boundaries and conduct while engaged in the practice of medicine." The board increased the period of suspension to one year.

Finally, the board discussed the factors it would consider in imposing discipline in sexual misconduct cases. The factors include the degree of consent offered by the patient, the degree of transference or dependence in the specific relationship, the location of the initiation of the relationship, the degree of sexual conduct or contact, the number of patients involved, and the duration of time.

2. Perspectives

Board members discussed their views of sexual misconduct cases with the Task Force. Consistently, individual board members' opinions mirrored the disciplinary actions taken by their board. Mental health board members were clear that sexual relationships with patients both inside and outside the treatment setting violated professional boundaries. Members of the physical health boards, which have not disciplined licensees for having relationships with patients, did not see this as a problem. Some physical health board members suggested that such relationships were unwise, but not unprofessional. Others thought the relationships permissible if treatment was discontinued.

Physician board members are continuing their education on these issues. In 1994, one board member attended a three-day sexual misconduct workshop and presented a report to the board at its monthly meeting. Activities by the state medical association in this area are also made known to the board. For example, the Medical and Chirurgical Faculty (Med-Chi) recently published a pamphlet titled, Medical Treatment NEVER includes SEXUAL CONTACT (see Appendix C). Med-Chi's Physician Rehabilitation Program devoted its Fall 1994 publication(11) largely to this issue.

D. Summary

The question--What will the boards do in sexual misconduct cases?--yields markedly different answers for each board. The mental health boards will revoke or suspend a license for a substantial period of time, regardless of the nature of the offense. The physical health boards will impose discipline ranging from reprimand to revocation in unwanted touching cases, but, except for the physician's board, they will not discipline a licensee for having a sexual relationship with a patient.

The physicians' board disciplines unwanted sexual touching with a reprimand or stayed suspension and, as recently as three years ago, would have imposed the same discipline against physicians having a sexual relationship with a patient--even if the physician was a psychiatrist. In the last two years, however, physicians who engage in sexual relationships with patients find that the board will suspend their license for six months or more.

Finally, the difference between discipline of mental health professionals by the mental health boards and discipline of psychiatrists by the physician's board is striking. The mental health boards' rule in these cases is revocation or a substantial (two years) period of suspension. In contrast, for similar conduct psychiatrists have received suspensions limited to a single year or stayed suspensions. The licensure differences between mental health professionals and psychiatrists do not explain (or justify) these disparate results.

A complete understanding of what the boards will do in sexual misconduct cases requires analysis not only of outcomes but also of process. Is it timely? Does it respect--or retraumatize--the complainant? These questions and others are considered below.

III. Board Processes in Sexual Misconduct Cases

Any person who makes a complaint to a licensing board may ultimately have to testify against the licensee at a hearing. Along the way, the person will have contacts with various government officials who participate in the process: the board's investigator and prosecutor, an administrative law judge, and board members. Evidence gathered by the Task Force shows that the process is not hospitable to sexual misconduct complainants.

The following were areas of concern:

A. Length of the Process

No rules or guidelines are in place requiring prompt prosecution of sexual misconduct cases. As a result, some cases have taken years to prosecute. This is no longer true of the physicians' board, which has increased its staff and now handles cases in a timely manner. Other boards, however, continue to experience delays in investigating and prosecuting cases. Board administrators specifically voiced complaints that the process took too long.

The effect of delay is difficult for victims. By law, licensure disciplinary actions are confidential. The complainant is not and cannot be advised of the progress of the case. Thus, during the time between making a complaint and testifying and/or a board decision, the victim is kept "in the dark." The longer the case takes, the more difficult it is for the victim.

B. Lack of Information

Complainants reported that they do not receive complete information from the boards concerning the steps involved in the disciplinary process. Because they did not know how the process worked, they did not know what to expect or when to expect it. In addition, some complainants were not sent copies of board final orders and did not even know that the case had ended.

C. Lack of Understanding

According to complainants, persons involved with the process do not understand the nature and effect of sexual misconduct. Evidence supports these criticisms. Investigators, attorneys, law judges, and board members are not trained in the dynamics of health professional-client sexual misconduct. For example, at hearings prosecutors usually must call experts to explain why victims frequently do not (and cannot) come forward to complain at the time of the occurrence.(12) In addition, at hearings, licensees will seek to introduce evidence of the victim's sexual history, or will assert that the victim "consented" to the misconduct. These issues often take center stage at disciplinary hearings because of the lack of knowledge of those involved.

Complainants also reported that in some cases they did not feel respected and in others, felt blamed. For example, in one case, an administrative law judge found a complainant not credible because she was receiving psychiatric care. In another case, a board member challenged a witness for not leaving the practitioner's office immediately after the misconduct occurred. "I know if I would be in your position there would be no way that I'd be coming back for anything," the board member insinuated, "I'd be out of there."

D. Summary

From the vantage point of process, what the boards will do in sexual misconduct cases is less than ideal. The cases take too long, complainants receive little or no information, and the persons involved in the process frequently do not understand the issues.

V. Efforts of Other States

The General Assembly directed the Task Force to examine "the efforts of other states...to study and address the problem" - Maryland State Code Ann., Art. 41, §18-404(c) (2). The following licensing board laws are worthy of note:

A. Sexual Misconduct Statutes

"Sexual misconduct" is a specific ground of licensee discipline for some (but not all) professions in several states (California, Florida, Illinois, Louisiana, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island). None of these states except for Florida defines "sexual misconduct." In Florida, two approaches are seen:

1. Definition by Statute

For physicians, sexual misconduct is defined in the Florida medical practice statute:

The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine means violation of the physician-patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited.

2. Definition by Regulation

For psychological services, and for clinical, counseling, and psychotherapy services, "sexual misconduct" is prohibited by statute but defined by regulation:

Sexual misconduct by any person licensed or certified under this chapter, in the practice of his profession, is prohibited. Sexual misconduct shall be defined by rule.

 

B. Discipline and Victim Compensation

Licensing boards "may require the [licensee] to pay a specified amount for mental health services for the patient which are needed as a result of the sexual contact." (Kentucky). Ontario, Canada, has a similar law.

C. Sexual Misconduct Procedures

1. Guidelines for Investigation

In 1994, Kentucky required certain boards(13) to "develop specific guidelines to follow upon receipt of an allegation of sexual misconduct," including "investigation, inquiry, and hearing procedures which ensure that the process does not revictimize the alleged victim or cause harm if the [health professional] is falsely accused." At the same time, the Kentucky legislature instructed its Attorney General to "develop guidelines related to the proper investigation of sexual misconduct by professionals which may be adopted by professional licensure boards."

2. Education and Training

Kentucky law also provides that the board, hearing officer and board investigators receive training on the dynamics of sexual misconduct of professionals, including the nature of this abuse of authority, characteristics of the offender, the impact on the victim, the possibility and the impact of false accusations, investigative procedure in sex offense cases, and effective intervention with victims and offenders.

 

D. Conduct of Hearings

1. Victim's Sexual History

In proceedings regarding a physician's alleged sexual misconduct, evidence of the sexual history of the victim of the alleged sexual misconduct shall neither be subject to discovery nor be admitted into evidence. Neither opinion evidence nor evidence of the reputation of the victim's sexual conduct shall be admitted. (Vermont).

2. Victim Consent

"A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with [a] physician." (Florida).

 

VI. Recommendations

What should the licensing boards do in sexual misconduct cases? The Task Force recommends the following:

Recommendation 38. All health professional licensing statutes should include a specific disciplinary ground prohibiting sexual misconduct.

Maryland should join other states in making sexual misconduct a specific ground for licensee discipline. This would eliminate the need to prove that current statutory language prohibiting "immoral," "dishonorable," "unethical," or "unprofessional" conduct (see Appendix I) includes sexual misconduct. It would refocus the issues: did the conduct occur and what should the board do about it? It would also set a clear standard for licensees throughout Maryland and show the public that such conduct will not be tolerated.(14)

Although not all of Maryland's health occupations boards have referred for prosecution cases involving sexual misconduct, all board statutes should prohibit sexual misconduct. All health care professionals have fiduciary obligations to their patients.(15) All health professionals should be prohibited from engaging in sexual misconduct with their patients.

Recommendation 39. Disciplinary statutes should require boards to define sexual misconduct by regulation.

Maryland licensing board disciplinary data, and the views of board members, disclose differing treatment and understanding of sexual misconduct within the professions. For example, mental health professions condemn sexual relationships with patients; physical health professions do not. The physicians' board has begun to impose serious discipline in such cases, but only recently. Because of differing board approaches to this issue, it would be unwise to establish a "bright line" for all professions to follow.(16) Rather, each board should be required to promulgate regulations defining sexual misconduct, such as Florida has done for psychotherapy and related services.

Numerous sexual misconduct statutes across the country provide guidance to Maryland licensing boards. For example, boards may define sexual misconduct as including sexual contact in the treatment setting only (and define the contact specifically), verbal sexual behavior, or sexual relationships outside the treatment setting. Board members educated in this area will be able to select the model best-suited to address the potential or actual problems of sexual misconduct within their professions.

The purpose of disciplinary proceedings is to act as a "catharsis for the profession" and a "prophylactic for the public."(17) In non-legal terms, it is to purge the profession of wrongdoers and confirm to those who act rightly that bad conduct has consequences. It is to protect the public by deterring the specific offender from hurting again and by generally deterring others who may contemplate wrong action.

Nowhere are these goals more important than in sexual misconduct cases. Sexual misconduct offenses harm patients directly, often for years. Sexual misconduct destroys the trust necessary to allow another person's touch or to help persons reveal their innermost hopes and desires in the quest for healing. When sexual misconduct occurs, the healer becomes the harmer; the patient is not helped but is hurt. The evidence shows that for some patients, it will be a long time, if ever, before there is actual trust of another health professional.

Licensee discipline should reflect the harm caused to patients by sexual misconduct. In some cases, it does: Licenses are revoked or suspended for long periods. In other cases it does not: Licensees are reprimanded or issued suspensions that are stayed immediately. Within individual boards, cases are treated differently: Sometimes a reprimand occurs, other times an actual suspension. The experience of the physical therapy board--two repeat offenders in the past five years--indicates that minimum discipline is not enough.

Even for the physicians' board, meaningful discipline for sexual relationships occurs now but did not happen four years ago. At the same time, the physicians' board imposes reprimands or stayed suspensions for inappropriate sexual touching--when there is no semblance of patient consent whatsoever. The message that such conduct is not acceptable is not strongly sent. The board has made admirable strides in its understanding of sexual misconduct cases, but it has not gone far enough.

To leave no doubt in the minds of professionals that sexual misconduct is wrong, to protect the board from the vicissitudes of changing membership, to assure patients that sexual misconduct will be addressed surely and severely, and to ensure that discipline acts as a catharsis for the profession and a protector of the public, all boards should impose minimum discipline in sexual misconduct cases.

Licensing boards currently have the authority to fine licensees. A law requiring a licensee to provide compensation for a victim's out-of-pocket expenditures lost or made as a result of sexual misconduct is in the nature of a fine. Maryland should follow the lead of Kentucky and Ontario, Canada and give the boards authority to assess this payment, up to a specified amount. For reasons discussed in Chapter 10, Professional Liability Insurance, this may be the only monetary relief a victim receives from a licensee for a sexual misconduct offense.

Recommendation 42. Consent should be legally eliminated as a defense to sexual misconduct.

A patient cannot "consent" to poor medical treatment. That is, no medical provider would assert that substandard care was given, but the patient knew this would occur. Yet sexual misconduct is substandard medical treatment. As the physicians' board has noted, "the exercise of sound medical judgement and treatment includes being cognizant of professional boundaries and conduct while engaged in the practice of medicine."(18)

If sexual misconduct is substandard medical treatment, a patient cannot consent to it. Florida has recognized this in its disciplinary laws, which provide that a "patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his physician." Maryland should eliminate consent as a defense to sexual misconduct, however sexual misconduct is defined. See also Chapter 9, Redress: Civil Litigation, Recommendation 50 (recommending elimination of consent as a defense in civil suits against psychotherapists).

A victim's past sexual history should not be "open hunting" season for a licensee's defense counsel during cross-examination. Maryland should follow Vermont in excluding this evidence. See also Chapter 9, Recommendation 51-C (evidence of victim's sexual history should be neither discoverable nor admissible in civil proceedings).

The chief complaints of victims involved with the disciplinary process were that cases took too long and they were provided little or no information about the process. With the proposed minimum procedures, a complainant will know how the process works and that a hearing will be held within 90 days.

The hearing is not the end of the administrative process because it is the board that makes the final decision in the case after receiving the judge's recommended written decision. Typically, the judge's proposed decision is issued 30 days after the hearing, and the boards receive written exceptions to the decision, hear oral argument, and render their final decision within 60 days thereafter. The Task Force does not propose to change these processes but instead proposes to assure that the part of the process directly involving the victim--the hearing--is brought to closure as quickly as possible.

The requirement of face-to-face interviews would codify existing practice, but it is significant enough to sexual misconduct victims to enact into law. Finally, a hearing before a single administrative law judge is less stressful to victims than testifying before a roomful of seven to fifteen board members, (depending upon the board). Not all boards refer cases to an administrative law judge for hearing, but in these cases it should be legally required.

The last recommendation for boards to provide support group referral information to complainants grows out of an unmet need. Sexual misconduct complainants often have nowhere to turn for support, although support groups exist. The boards are in an ideal position to make such referrals. Concern that boards could be placed in dual relationships with complainants was seen as outweighed by the gravity of the need and by the boards' ability to send an objective and neutral message. Boards typically send complaint forms to complainants, and the letter of transmittal could state, "The State of Maryland requires the board to provide you with the following information...."

Recommendation 6. The law should require training on the dynamics of sexual misconduct for all professionals having a role in the investigation, prosecution, or disposition of licensing board complaints (e.g., board members, investigators, attorneys, and administrative law judges).

Complainants advised that government personnel involved with the disciplinary process did not understand the nature and effect of sexual misconduct; evidence supports this assertion. As in Kentucky, Maryland should require board members, investigators, attorneys and administrative law judges to receive training in this area (see Chapter 1, Professional Education).

Recommendation 45. The law should require boards to submit annual reports to the legislature documenting complaints of sexual misconduct and the boards' handling of them.

Currently, the General Assembly requires the physicians board to file an annual report discussing its activities, including specific actions in disciplinary cases. A similar law providing annual reporting and oversight would increase board accountability for the handling of sexual misconduct case.

Massachusetts recently passed a law that permits that state's attorney general to enjoin psychiatrists who have lost their licenses because of sexual misconduct from practicing as unlicensed psychotherapists. The attorney general may seek a restraining order against the unlicensed professional if the individual poses a risk to patients.

Like Massachusetts, Maryland does not license all therapists but only those falling into specifically defined occupations, for example, psychologists, social workers and psychiatrists (physicians). Consequently, a practitioner who loses his or her license can still see patients as an unlicensed psychotherapist. Maryland should follow Massachusetts and enact a law permitting the attorney general to prevent mental health providers who pose a risk to patients from practicing in an unlicensed capacity.

Recommendation 47. The Health Claims Arbitration Office should be required to refer complaints of sexual misconduct to the appropriate licensing board.

This reporting requirement would assist the boards in uncovering instances of sexual misconduct that may not be reported directly by the victim.

1. Acupuncturists; Audiologists, Hearing Aid Dispensers, and Speech-Language Pathologists; Chiropractors; Dentistry; Dietitians and Licensed Nutritionists; Electrologists; Morticians and Funeral Establishments; Nurses; Nursing Home Administrators; Occupational Therapists; Optometrists; Pharmacists and Pharmacies; Physical Therapist; Physicians; Podiatrists; Professional Counselors; Psychologists; and Social Workers.

2. McDonnell v. Comm'n on Medical Discipline, 301 Md. 426 (1984).

3. Commission on Medical Discipline v. Stillman, 291 Md. 390, 407 (1981) (citation omitted).

4. McDonnell v. Comm'n on Medical Discipline, 301 Md. 426, 436 (1984).

5. The higher number of physician sexual misconduct cases should not mislead the reader. Except for nurses, physicians constitute by far the greatest number of Maryland health occupations licensees, numbering some 22,000 overall and over 10,000 in-state (see Appendix J).

6. A chart summarizing health occupation licensing board statutes relating to sexual misconduct is attached as Appendix I.

7. Heinecke v. Div. of Occupational and Professional Licensing, 810 P.2d 459 (Utah 1991).

8. A "summary suspension" means that the board acted immediately and without an evidentiary hearing. This action is authorized by State Government Article 10-226(c) (2)(3) (1994 Cum. Supp.), which states that a unit "may order summarily the suspension of a licensee if the unit...finds that the public health, safety or welfare imperatively requires emergency action." The licensee is entitled to a hearing, but only after the board has acted.

9. Board of Physician Quality Assurance Case No. 93-0473 (1993).

10. "I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both male and female persons...."

This section of the Oath was quoted in a 1990 report of the American Medical Association's 1990 Council on Ethical and Judicial Affairs. Titled "Sexual Misconduct in the Practice of Medicine," the report was adopted by the AMA House of Delegates in 1990 and published in the Journal of the American Medical Association, Vol. 266, No. 19 (November 20, 1991), p. 2741.

11. Straightforward, Vol. V, Issue 4 (Fall 1994). The issue included an article by board member Cheryl Winchell, M.D., describing the board's efforts to address sexual misconduct. Dr. Winchell was the physicians board's liaison to the Task Force.

12. For a full review and explanation of the use of this testimony, see Andrew Hyams, "Expert Psychiatric Evidence in Sexual Misconduct Cases before State Medical Boards," Am. Journal of Law & Medicine, Vol. XVIII, No. 3 (1992).

13. Physicians, osteopaths, and podiatrists; chiropractors; nurses, psychologists, and social workers.

14. Recently, the National Council of State Boards of Nursing promulgated "Disciplinary Guidelines for Managing Sexual Misconduct Cases" and made similar recommendations to nursing boards across the country. The Council stated:

Specific legislative language relating to sexual misconduct demonstrates to the public how seriously such behavior is viewed by the Legislature and Board of Nursing. It gives Boards firm legal authorization for disciplinary action. It puts licensed nurses on notice that sexual misconduct is grounds for disciplinary action. It is helpful to prosecuting attorneys to have specific language to quote to attorneys representing nurses, and to cite in a variety of documents. It can also be useful when educating nurses, students, and the public.

15. See, for example, Linda Mabus Jorgenson, Sexual Contact in Fiduciary Relationships: Legal Perspectives.

16. In an article in the Federation of State Medical Boards' Bulletin, "Sexual Abuse of Patients: Ontario's 'Zero Tolerance' Statue," Dr. Winchell criticized Ontario, Canada's umbrella approach of enacting the same definition of "sexual abuse" for all professions. The Ontario definition includes not only sexual intercourse or sexual touching but also "behavior or remarks of a sexual nature." It provides for a mandatory five-year license revocation, regardless of profession.

Dr. Winchell wrote:
The original task force was initiated by the [Ontario] College of Physicians to address the very real problem of physician-patient exploitation. The ability to exploit patients arises out of the inherent inequality in the power relationship that exists in all doctor-patient relationships. However, it is a stretch to assert that all health care workers have a position of power over their patients such that exploitation is a real problem. Do pharmacists, dental hygienists, radiation technicians, and physical therapists exercise such power that they can readily exploit their patients? Does a pharmacist have patients?

Dr. Winchell's reminder of the differences among professions sounds a cauti