Beware Boundary Violations

The complaint¹

Dr A agreed to prepare a medico-legal report on a patient to assist with the assessment of her workers’ compensation claim. The consultation, which was his first since returning to work after major abdominal surgery three months earlier, took approximately two hours following which he submitted a report to the insurer.

The patient subsequently made a complaint to the Health Care Complaints Commission alleging that the doctor had made inappropriate personal disclosures to her about himself and his family; had brushed against her back and breasts while examining her arms and shoulders; and that he hadn’t left the room while she was undressing or given her a gown to cover herself.

The hearing

Dr A admitted having told the patient about his recent abdominal surgery for cancer and large scar, and that his son was becoming a veterinary surgeon. An expert appointed by the Tribunal was critical of the doctor’s discussion of his own surgical management and family with a patient. The Tribunal accepted that the doctor hadn’t made any other personal disclosures as alleged by the patient, but found he had failed to maintain appropriate professional boundaries between himself and the patient during the consultation.

The Tribunal noted that the patient was evasive and discursive when giving evidence, and that the accounts of the inadvertent ‘brushing’ by Dr A were different in all five of her written statements. Dr A denied this allegation and the Tribunal found he had not brushed against the patient, inadvertently or in any other way.

Dr A said he hadn’t offered to leave the room while the patient was undressing because observation during this process was part of the medico-legal assessment. He admitted he hadn’t offered the patient a gown. The expert said this fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. The Tribunal agreed, commenting that it isn’t appropriate for a medical practitioner to use disrobing by a patient as part of an assessment of mobility.

The outcome

The Tribunal took into account that Dr A was an elderly man in poor health at the time of the consultation, and that he had confined his practice to medico-legal assessments for a number of years. It also noted his favourable character references and that he had acknowledged it was good practice to provide a gown to a patient who is required to disrobe. The Tribunal considered it unlikely that Dr A would repeat these errors in any future consultation.

Dr A was cautioned in relation to unsatisfactory professional conduct for making inappropriate personal disclosures to a patient. He was also reprimanded for unsatisfactory professional conduct for failing to provide adequate privacy to a patient, and for failing to provide a gown to a patient when she was partially disrobed.

Medico-legal issues

• The professional relationship between a doctor and a patient is not a social one – it’s a one-way arrangement and everything that goes on in a consultation should be about the patient and not about the doctor.
• Careful and limited self-revelation may occasionally be acceptable if it’s genuinely for the benefit of the patient, e.g. as a method of establishing rapport.
• Disclosing personal matters to a patient is a warning sign that boundaries with patients may be at risk.
• Patients have the right to respectful care that promotes their dignity, privacy and safety.
• Always enable people to undress and dress in privacy, and allow them to dress as soon as possible after the examination.
• Do not assist patients in removing their clothes without checking that they need your help.
• Provide appropriate cover during the examination such as modesty gowns or sheets. There should be as little physical exposure as possible during an examination, and staged exposure whenever possible, i.e. re-cover an exposed area before uncovering the next area to be examined.
• Consider using a chaperone – a trained chaperone or a personal support person. Exploring the need for a chaperone with a patient is part of good medical practice.

More resources

The Medical Board of Australia Guidelines
Sexual boundaries in the doctor-patient relationship

View Section 7 for information on conducting physical examinations.

Reference

1. Health Care Complaints Commission v Wilcox [2020]. NSWCATOD 10.