Can doctor-patient relationships ever be condoned?

By JAN CORBETT

Even the father of modern medicine could see there were going to be problems, and that was more than 2000 years before it became a storyline in Coronation Street.

As he tutored the first generation of medical students to reject the notions of the wrath of ancient gods and instead to prod here and listen there to form a rational diagnosis, Hippocrates clearly realised the need to set the ethical boundaries when it came to sex with patients.

The oath he required of his graduates, tweaked by Christians in the intervening centuries, had them swear that "into whatever houses I enter, I will come for the benefit of the sick, and will abstain ... from the seduction of females or males, of freemen and slaves".

It's true. In those days doctors did house calls.

Dr Anton Wiles might not have had the benefit of seeing the trouble this sort of thing is causing on television's most famous street, now that Maxine is believed to be carrying Dr Ramsden's baby.

But it is likely that as he drove his car up to the summit of Mt Wellington early one morning in January 1998 for an assignation with a woman who had been under his care, he felt the weight of two and a-half millenniums' worth of angst over the ethical issue of doctors forming intimate relationships with their patients.

After all, he was deputy chairman of the Medical Association when, in 1997, it drafted a policy on the propriety of such a thing. It deemed then that a sexual relationship with a patient was unethical, but with a former patient there would be more leniency, particularly where the patient-doctor relationship was brief, minor or in the distant past and the sexual relationship developed from social rather than professional contact.

The fact that he was married and she was married was not Wiles' primary concern that morning. Instead he told the woman there could be no relationship between them while she was still his patient, even though it had been three months since their last consultation.

She had been his patient for 10 years. He delivered her children, and she confided in him about her marital problems. More recently they had entered into a business relationship and saw each other daily. They became friends. He had told her his marriage was unhappy.

According to his evidence, she was the first to signal that she was attracted to him. According to her, they indulged in what is still politely called sexual intimacy, but did not have full sexual intercourse until three months after her medical notes and those of her children were transferred to another doctor.

The affair continued for 18 months - coinciding with the period Wiles was elevated to chairman of the New Zealand Medical Association - until her husband found out. She then chose to end it and repair her marriage.

Her husband laid a complaint against Wiles, who then resigned as chairman of the Medical Association for what were said to be family reasons. (When the NZMA issued its revised Code of Ethics this year, the policy on former patient-doctor relationships was noticeably tougher.)

At the hearing, held in private before the Medical Practitioners Disciplinary Tribunal, the woman gave evidence in support of her husband's complaint.

The result proved at least one thing. After more than a decade of rebalancing the power scales between doctors and patients generally, and women patients and their male doctors particularly, the experts still have wildly divergent views on where the line on doctor-patient relationships should be drawn.

The Medical Council takes a tougher line than the Medical Association when it comes to relationships with former patients. Although it says each case has to be judged individually, it frowns on cases where the professional relationship involved psychotherapy or counselling, the patient's judgment is impaired, the doctor knew the patient had been sexually abused in the past or was under 20 when the doctor/patient relationship ended.

Still, the Medical Council offers the defence of "evidence that there was no exploitation of the former patient's vulnerability".

The chief allegation against Wiles would be that the woman was a patient when a sexual relationship began and that transferring her notes to another doctor was not enough to show the professional relationship had ended.

Laying a complaint against a doctor is a convoluted process. First stop is the Health and Disability Commissioner, who back then was Robyn Stent. She decided it was serious enough to refer it to the Director of Proceedings, who decides whether the complaint should proceed to the Medical Practitioners Disciplinary Tribunal.

At the tribunal hearing, a panel of five hears the case. Four of them decided Wiles had been "unwise in the extreme" but that it was not serious enough to find him guilty of any professional charge. A fifth member of the tribunal disagreed but said that rather than finding him guilty of disgraceful conduct, which could mean being struck off the medical register, he should be found guilty of conduct unbecoming a medical practitioner.

That's four in his favour, albeit with a rap over his knuckles for being foolish, and three against.

The Director of Proceedings, clearly astonished that none of the tribunal thought this was disgraceful conduct, appealed to the District Court.

But District Court judge Margaret Lee could not get overly excited about the ethics of the affair, either.

That made five wise heads who were not prepared to discipline Wiles, against three equally wise heads who were. You might say four, once you add the new Health and Disability Commissioner Ron Paterson to the list.

On her curriculum vitae Lee lists two years' membership of the New Zealand Council for Civil Liberties from 1983, convener of the Wellington Women Lawyers Association in the mid-1980s, and chairwoman of the Arohata District Prison Board later that decade. In the late 1990s she served a three-year term as a law commissioner.

Now she can add issuing a controversial decision that challenges the direction in which the rules on doctor-patient relationships were heading.

She bravely suggested the Medical Council guidelines on doctors having sex with patients were overly paternalistic, did not adequately distinguish between sexual abuse and a consensual relationship between adults who happened to have a doctor/patient relationship and appeared to be based on an assumption that women were childlike creatures unable to make their own decisions.

From the pages of her judgment Wiles emerges as a doctor who was unhappily married and emotionally vulnerable himself, a man clearly in love and hoping for a long-term relationship with this woman.

The judge found no evidence that he exploited her. She, on the other hand, emerges as a successful businesswoman who won four international awards and established her own firm during the time of the affair.

The judge certainly thought Wiles had been foolish and could have done more to protect the woman's interests. But the sticking point for the critics of the Wiles judgment is that the judge accepted the relationship had become a sexual one while the woman was still technically his patient but that was not worthy of professional censure, a decision that is subject to a High Court appeal.

Paterson, writing in the Herald several days later, complained that both the tribunal and Lee's decisions "make a mockery of the zero tolerance policy and send the wrong signal to doctors and patients. The traditional red light for doctor-patient relationships has become a flashing amber light - proceed with caution".

All the work towards getting the medical profession to actively oppose sexual exploitation by doctors appeared to be unravelling - a fear that was shared by the women's health lobby groups who condemned the decision.

Yet present Medical Association chairman Dr John Adams does not see that Lee's decision about his predecessor's conduct has made it any more difficult for the NZMA to keep its line in the sand. He trusts the process.

"Two bodies, the Medical Practitioners Disciplinary Tribunal and the District Court have heard all the evidence and come to decisions. We have to trust that these systems that have been set up are doing their job properly."

So just how common are consensual sexual relationships between doctors and patients?

When social scientist Gillian White studied the issue 10 years ago she found that 4 per cent of New Zealand doctors reported having had a sexual relationship with a patient at some time in their career and 25 per cent said they knew of doctors who had.

Yet complaints relating to what started out as consensual sexual relationships with doctors are rare. The most recent was last year against Dr Lewis Gray, who had an affair with a woman while continuing to be her husband's doctor and at no time suggesting either of them find another doctor. He was found guilty of disgraceful conduct.

While that case received considerable publicity, another around the same time was handled more quietly. It involved a specialist who had a sexual relationship with a patient, later told a supervisor and was suspended. He subsequently handed in his practising certificate and was also found guilty of disgraceful conduct.

A case like that of Wiles has no precedent that anyone can remember.

And while we can clearly see the details of the cases where it has turned bad and resulted in a complaint, we have no measurement of the relationships where they met as doctor and patient and ended up happily ever after.

Unhelpfully, much of the discussion of doctor-patient relationships gets tangled up with sexual abuse.

Yet some consider the two situations cannot be separated. In all relationships, what might have seemed like a consensual relationship in the beginning can take on the shape of abuse in bitter retrospect, more so if the other party is the doctor with whom you once shared your most intimate secrets.

The academic rhetoric on the subject discusses issues of transference. In human terms what they are trying to explain is that when doctors and patients think they have fallen in love they probably haven't.

The woman - and these cases usually arise with male doctors and female patients - is in danger of being seduced by the fact that there is this man who, for the period of the consultation, is interested only in her and her welfare. He in turn might be flattered by seeing the effect that has on her and charmed by her awe of him. She does what he tells her to do, and doesn't nag. Perfect.

If the same people had met in a bar one night, would anything happen?

Some say the unreality of how the relationship is sparked and the power imbalance at the start does matter even long after the professional relationship has ceased.

For these reasons, in a paper examining the Medical Council's stance on former patient relationships, Otago University's Dr Katherine Hall argued for a stricter stance, arguing that such relationships could be ethical only in the most rare circumstances.

Plus, says Adams, setting strictures on what is allowed between doctors and former patients protects all patients who want to be safe in the notion that nothing that was said in a consultation may one day spill over into their private life and that the doctor's surgery is a sex-free zone. These rules are there to protect all patients, and all doctors.

But many people would feel some compassion for a sincere doctor who has genuinely fallen in love with his patient and she with him, who has to cry tragically "this can never happen".

To Adams that is the price to be paid for the privileged position of being a doctor. Lawyers, too, can be censured for conducting sexual relationships with clients.

Barbara Robson, co-convener of the Federation of Women's Health Councils Aotearoa, agrees that faced with a patient who sincerely wants to start a sexual relationship, the doctor has to say no. But she agrees there are grey areas when it comes to former patients.

So does Paterson who, in his submission to the Medical Council's review of its sexual boundary policies, called for a two-year stand-down period before a former patient and doctor relationship should begin. He has criticised the NZMA for not insisting on the same thing.

Apart from the unrealistic notion that emotions can be frozen for two years, Adams worries that a stand-down period could be used to legitimise relationships which are never legitimate - such as one emerging from an intensive period of psychotherapy.

In a major report on the Medical Council's sexual boundary policies released this year, Wellington lawyer Clare Bear recommended maintaining a case-by-case approach to former patient relationships but imposing a one-year stand-down period. She also recommended removing the rule about patients who were under 20 on the grounds it is "unsatisfactory, inflexible and could breach anti-age discrimination provisions". These are still under consideration.

While disciplinary tribunal members, judges and the medical police continue to wrestle with the issue, the people who write television's medical soaps seem to have a much clearer idea of the boundaries, which is why on Shortland Street they have largely steered away from it as a major storyline.

As publicist Rachel Lorimer points out, soaps have to maintain very clear messages on what is right and wrong. If a character crosses the sexual barriers they would have to be seen to suffer retribution. "Chris Warner would have to go to jail."