Ethics and law MJA 213 (5) ▪ 7 September 2020 Sexual relationships between health practitioners and former patients: when is it misconduct? Professional codes of conduct expressly proscribe entering into a sexual relationship with a current patient, but the position is less clear concerning former patients A ll 15 regulated health professions in Australia have profession-specific codes of conduct which expressly proscribe entering into a sexual relationship with a patient. It is widely accepted that such conduct is so serious that it amounts to professional misconduct in most circumstances. However, the position is less clear concerning former patients. This article considers guidance from tribunal level health disciplinary decisions on when a person is a former patient, and when a sexual relationship with a former patient will nevertheless be misconduct. Codes of conduct The various health profession codes of conduct take differing approaches regarding sexual relationships with former patients. It is therefore perhaps unsurprising that there appears to be confusion about where the professional boundary lies concerning former patients. The code for optometrists does not refer to former patients at all. 1 The code for nurses treats both current and former patients together by providing that practitioners should: avoid sexual relationships with persons with whom they have currently or had previously entered into a professional rela- tionship. These relationships are inappro- priate in most circumstances and could be considered unprofessional conduct or pro- fessional misconduct. 2 The code for midwives extends this to “the woman, her partner and/or members of the woman’s family”. 3 The codes for Aboriginal and Torres Strait Islander health workers, 4 Chinese medicine practitioners, 5 chiropractors, 6 dentists, 7 medical radiation practitioners, 8 occupational therapists, 9 osteopaths, 10 paramedics, 11 pharmacists, 12 physiotherapists 13 and podiatrists 14 all provide in a section on professional boundaries that good practice involves: recognising that sexual and other personal relationships with people who have previ- ously been a practitioner’s patients or cli- ents are usually inappropriate, depending on the extent of the professional relation- ship and the vulnerability of a previous patient or client. The code for doctors 15 does not refer to former patients, but since 2014 specifically cross-references additional detailed guidance on “sexual boundaries in the doctor–patient relationship”. 16 The current guidance provides that it “may be unethical and unprofessional to engage in a sexual relationship with a former patient, if this breaches the trust the patient placed in the doctor”. 16 The guidance states that a range of factors is relevant, including: • the duration, frequency and type of care provided by the doctor; for example, if they had provided long-term emotional or psychological treatment • the degree of vulnerability of the patient • the extent of the patient’s dependence in the doctor–patient relationship • the time elapsed since the end of the professional relationship • the manner in which, and reason why, the professional relationship ended or was terminated • the context in which the sexual relationship started. 16 In contrast to the other professional codes, that of psychologists 17 clearly sets out both a time period (2 years) and a process (involving three steps: consultation, supervision and referral) as prerequisites to establishing an appropriate sexual relationship with a former patient. All of these codes should be read in light of authoritative guidance issued in 2014 and updated in 2020 by the Australian Health Practitioner Regulation Agency (APHRA) in conjunction with the National Boards 18 on mandatory notification obligations under the National Law, which includes definitional text on “sexual misconduct” as follows: Engaging in sexual activity with a person formerly under a practitioner’s care after the professional relationship has ended may also be sexual misconduct. This depends on: • whether the patient or client is vulner- able because of age, capacity or health conditions • the means by which sexual activity was established (for example, whether a practitioner used information obtained during a treating relationship to contact a patient and commence sexual activity) University of Technology Sydney, Sydney, NSW. jenni.millbank@uts. edu.au doi: 10.5694/ mja2.50717 Podcast with Jenni Millbank available at mja.com.au/podcasts Jenni Millbank 212