04/13/1995 02:07 PM House HES

 HB 35 - SEXUAL MISCONDUCT BY MEDICAL PROFESSIONAL                           
                                                                               
 Number 940                                                                    
                                                                               
 REPRESENTATIVE SEAN PARNELL said HB 35 is an act relating to sexual           
 misconduct as grounds for imposing disciplinary sanctions on those            
 persons licensed by the State Medical Board.  Sexual misconduct is            
 not expressly addressed in Alaska Statutes.  Currently the statute            
 provides sanctions for professional misconduct in lewd or immoral             
 conduct in connection with the delivery of professional services.             
                                                                               
 REPRESENTATIVE PARNELL noted that while most people would                     
 categorize sexual misconduct as professional misconduct, the board            
 categorization used in statute needs to be changed so the                     
 unmistakable message is sent that the society does not accept                 
 sexual misconduct by doctors.                                                 
                                                                               
 Number 987                                                                    
                                                                               
 REPRESENTATIVE PARNELL continued that the physician-patient                   
 relationship is founded on mutual trust, and sexual misconduct is             
 a breach of that trust.  HB 35 authorizes the State Medical Board             
 to sanction doctors and define some sexual misconduct.  HB 35                 
 defines sexual misconduct in very broad terms.  That is found on              
 page 2 of the bill.                                                           
                                                                               
 REPRESENTATIVE PARNELL said granting the Medical Board authority to           
 sanction doctors in this case is critical for several reasons.                
 First, the patient is extremely vulnerable, both physically and               
 emotionally.  Two, a doctor can use his or her status in the                  
 professional relationship to induce the patient's consent to sexual           
 activity.  Finally and most importantly, the doctor's objective               
 medical judgement is, in most instances, compromised by a sexual              
 relationship or sexual interest in the patient.                               
                                                                               
 REPRESENTATIVE PARNELL said HB 35 is supported by the Alaska State            
 Medical Board and the Council on Domestic Violence and Sexual                 
 Assault.  Representative Parnell concluded by saying there were two           
 amendments to the bill that he would discuss after testimony on the           
 bill.                                                                         
                                                                               
 Number 1057                                                                   
                                                                               
 CATHERINE REARDON, Director, Division of Occupational Licensing,              
 Department of Commerce, said she would like to explain how her                
 division handles complaints of sexual misconduct of physicians, and           
 talk about how HB 35 would change that.  At the current time, the             
 existing statute is used.  This statute prohibits unprofessional,             
 lewd and immoral conduct.  In terms of very obvious and gross                 
 sexual misconduct, these statutes have worked because the division            
 has been able to define the actions as unprofessional conduct and             
 take cases that ended up going through the superior court system.             
                                                                               
 MS. REARDON noted that however, in what perhaps may appear to be              
 gray areas or instances that were not quite as blatant, it is                 
 possible the division would experience some difficulty in using               
 unprofessional conduct to cover those instances.  At this point,              
 sexual misconduct that occurs outside of the treatment setting,               
 such as meeting a patient in a social setting and having a sexual             
 relationship with a patient, has not been addressed in a                      
 disciplinary manner unless the physician is a psychiatrist.                   
                                                                               
 Number 1142                                                                   
                                                                               
 MS. REARDON thought if the legislature wanted the division to                 
 prohibit sexual contact outside the doctor's office, it would be              
 helpful to clarify that in statute.  Entities can of course                   
 establish regulations to define sexual misconduct.  Ms. Reardon               
 hopes the Medical Board would create those definitions.  The                  
 Medical Board has been looking at this issue already and it has               
 some thoughts on this, such as the things that should not be going            
 on in doctors' offices.                                                       
                                                                               
 MS. REARDON conceded that there may be some issues in small                   
 communities that should be dealt with.  If there is a single doctor           
 who desires a romantic life, how that person pursues romance should           
 be considered.                                                                
                                                                               
 MS. REARDON had her staff look back through the files to see how              
 many complaints the division has received on sexual misconduct.               
 Over perhaps the last six years, there were 35 files that reflect             
 complaints.  Many of those complaints were not pursued.  The person           
 complaining may have not been willing to give their name or press             
 the situation.  In many situations with criminal sexual assaults,             
 people are often reluctant to go through with the difficulties of             
 pressing their case.                                                          
                                                                               
 Number 1221                                                                   
                                                                               
 MS. REARDON said most complaints involved activities in the                   
 doctor's office.  However, that could have been skewed by the fact            
 that when people ask the division, "Is it illegal to do such-and-             
 such?" (e.g., Is it illegal to sleep with a patient?), the division           
 is not able to give the person a direct "yes" answer.  That may               
 discourage people who make formal complaints.                                 
                                                                               
 Number 1258                                                                   
                                                                               
 CO-CHAIR BUNDE identified with the quandary of the division.  As a            
 college professor, Co-Chair Bunde would absolutely want to enforce            
 a prohibition of single professors dating current students.  The              
 gray area arises when determining when the student is no longer a             
 student.  That is easier to define in the educational world.                  
 However, it is more difficult to define when a patient ceases to              
 become a patient.                                                             
                                                                               
 CO-CHAIR TOOHEY commented on Ms. Reardon's point about small                  
 communities.  When there is only one doctor, subsequently, everyone           
 in the town is assumed to be a patient.  It is not fair to tell the           
 doctor she/he must be celibate.  What someone does on their own               
 time, as long as they are not a psychiatrist, is difficult.                   
                                                                               
 Number 1303                                                                   
                                                                               
 MS. REARDON has been wrestling with this issue herself.  The                  
 relationship in the doctor's office (she spoke of doctors who were            
 not psychiatrists), can run over into a relationship outside the              
 office.  She asked her staff what types of complaints her office              
 had received, and asked HESS Committee members to consider these              
 types of situations.                                                          
                                                                               
 MS. REARDON said in one situation, a doctor had sent a video to a             
 patient of himself dancing around naked and masturbating.  That               
 would have been outside of the treatment setting, yet it was also             
 strange and of a sexual nature.  That is not something the state              
 wants its doctors to be doing.  The division was able to handle               
 that situation through a memorandum of agreement with the doctor.             
 However, it did take place outside the doctor's office.  Although             
 the division would attempt to charge the doctor with unprofessional           
 conduct, the response could be that unprofessional conduct concerns           
 how one acts as a doctor in the doctor's office.                              
                                                                               
 MS. REARDON recalled other instances in which doctors have invited            
 patients to come to their houses and watch pornographic movies.               
 This is a complicated area.                                                   
                                                                               
 CO-CHAIR BUNDE said the confusion lies between what goes on in and            
 out of the doctor's office, and when does a patient cease to be a             
 patient.  Those are challenging questions.                                    
                                                                               
 Number 1405                                                                   
                                                                               
 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and           
 Sexual Assault (CDVSA), said she is present on behalf of the                  
 Council to express strong support for HB 35.  She first became                
 aware of this issue a few years ago when a case was brought to her            
 attention concerning a physician who behaved inappropriately in               
 sexual contacts with a current patient.  The contact took place               
 outside the office, and for a variety of reasons there was not much           
 the District Attorney's office could do although the behavior was             
 illegal.                                                                      
                                                                               
 MS. ANDREEN said the victim in this case felt that she was not the            
 only person to experience this type of contact with this physician,           
 and she wanted to see some type of action taken.  It was at that              
 point the CDVSA became aware that Alaska's Medical Board and the              
 Division of Occupational Licensing do not have these types of                 
 standards.                                                                    
                                                                               
 MS. ANDREEN understands the American Medical Association has                  
 established sanctions and standards for this type of sexual                   
 misconduct.  Ms. Andreen feels it is imperative Alaska establish              
 those same standards.  She was very surprised when she learned such           
 standards did not exist, and these issues had not been addressed.             
 This is appalling.  She felt the legislature can get bogged down              
 with details about the one doctor in a small community.  She asked            
 the state to certainly take those situations into consideration,              
 but to also be concerned about the number of, primarily women, who            
 are being abused by physicians in this state.  It is happening, it            
 is real and it needs to be addressed.                                         
                                                                               
 Number 1502                                                                   
                                                                               
 DR. DAVID McGUIRE, Chairman, State Medical Board, thought the issue           
 can be made relatively straightforward if it is remembered that the           
 patient's welfare should be primary in any discussion concerning              
 medical care.  Any issue that is not clearly in the interest of the           
 patient then becomes highly suspect as to why that should be                  
 tolerated.  Dr. McGuire doubted anyone would disagree with that               
 point.  The practice of medicine in the view of the board is a                
 privilege that is granted to an individual after he/she has                   
 completed requisite training and other requirements.  It is not an            
 inherent right.  Practice is a privilege.                                     
                                                                               
 DR. McGUIRE said society can grant privileges with attached                   
 responsibilities that may be higher than for someone who has not              
 been granted similar privileges.  There is absolutely no indication           
 for inappropriate sexual contact between a physician and a patient            
 for any known therapeutic reason.  There is no credible person who            
 will come forward to say that, for any condition known to man,                
 sexual contact between the doctor and patient is the treatment of             
 choice.  That is ridiculous.                                                  
                                                                               
 Number 1588                                                                   
                                                                               
 DR. McGUIRE said the board would like to send a clear message to              
 all licensed physicians in the state of Alaska that they need to              
 understand they are held to a high standard.  The high standard is            
 that what they do must be in the interest of the patient, and the             
 State Medical Board is not going to listen to any discussion about            
 whether this inappropriate behavior was in the interest of the                
 patient.  It is not in the interest of the patient.  It is the                
 obligation of the doctor, if he/she desires a romantic relationship           
 with a patient, to be absolutely sure the doctor is on a "level               
 playing field."                                                               
                                                                               
 DR. McGUIRE said by that, the board means the doctor must take such           
 appropriate action as to have the patient treated by another                  
 physician, and to make sure the patient's welfare is considered.              
 Only then, if the patient turns out to be the love of the doctor's            
 life and those steps have been taken, the doctor can proceed.  If             
 there is ever an allegation that the doctor inappropriately used              
 his/her position, prestige, etc., to influence someone to engage in           
 a sexual relationship, the doctor had better be prepared to prove             
 to the board otherwise.  The burden of proof is going to be on the            
 doctor to show the board she/he took adequate and reasonable steps            
 to insure that this was a legitimate relationship.                            
                                                                               
 Number 1655                                                                   
                                                                               
 DR. McGUIRE did not think there is much room for argument in that             
 situation.  Responsible adults and people who choose to engage in             
 a relationship that may be clouded by a physician/patient                     
 relationship have ample opportunity to document mutually that they            
 have considered the issues and chose to proceed.                              
                                                                               
 DR. McGUIRE said it should be only in that instance that the board            
 is ever asked to interpret or deal with issues.  If there is no               
 documentation on the part of the physician that appropriate steps             
 were taken, the board wants to be able to declare that physician              
 guilty as a matter of fact and law.  The board will not listen to             
 arguments that the doctor was really in love.  The situation is               
 inappropriate and unacceptable.  It is sanctionable, and the                  
 physician knew this in advance.  Period.                                      
                                                                               
 CO-CHAIR BUNDE commended Dr. McGuire on his clarity.  He closed               
 public testimony.                                                             
                                                                               
 Number 1719                                                                   
                                                                               
 REPRESENTATIVE PARNELL felt the bill clearly sets bounds extending            
 to outside the treatment setting - the physician's office.  That is           
 appropriate.  The patient does not become any less vulnerable                 
 outside the office as opposed to inside the office.  The same                 
 reasons still apply for doing so.  The question for most doctors is           
 when a patient stops being a patient.  There are court cases on               
 that issue that have helped decide this, and other cases will be              
 decided on a case-by-case basis.                                              
                                                                               
 REPRESENTATIVE PARNELL, as an attorney, sends a letter terminating            
 the attorney-client relationship.  Doctors do not have that                   
 practice.  However, there are ways to send that patient to another            
 physician.  Representative Parnell felt his comments apply to the             
 rural setting as well.  There is a provision in the bill that                 
 stipulates sexual contact is not to occur unless there is a spousal           
 or equivalent domestic relationship.  That is clearly the intent of           
 the bill.                                                                     
                                                                               
 Number 1788                                                                   
                                                                               
 CO-CHAIR TOOHEY moved to adopt HB 35, Version A, as the working               
 document.  There were no objections.  Before the committee was HB
, Version A.                                                                
                                                                               
 CO-CHAIR BUNDE moved the first amendment, which was the title                 
 amendment.  He named it amendment number one.                                 
                                                                               
 REPRESENTATIVE PARNELL said the title amendment is really self-               
 explanatory.  It tightens the title so sexual misconduct is being             
 referred to, rather than an act relating to the grounds for                   
 imposing disciplinary sanctions.  Representative Parnell was just             
 trying to tighten up the language so there would be no tinkering              
 with the title later in the legislative process.                              
                                                                               
 CO-CHAIR BUNDE asked for objections, and there were none.                     
 Amendment number one passed.  He moved amendment two for discussion           
 purposes.                                                                     
                                                                               
 REPRESENTATIVE PARNELL said amendment two basically eliminates                
 Section (B), starting at line 29 on page 2.  Since the bill was               
 drafted, Representative Parnell has had some discussions that have            
 led him to make the amendments.  The current bill says the                    
 "licensee's use of the physician-patient relationship to attempt to           
 induce...."  Representative Parnell feels this is pretty broad                
 language.  For example, a physician may tell the board it was                 
 his/her charm and charisma.  Therefore, it should be a factor that            
 if the physician is using the physician-patient relationship, and             
 in most cases they are, it should not be set forth in statute                 
 because there are other bases for trying to establish sexual                  
 contact with a patient.  That is the whole reason he is getting rid           
 of Section (B).                                                               
                                                                               
 CO-CHAIR BUNDE asked for objections, and there were none.                     
 Amendment two passed.                                                         
                                                                               
 Number 1871                                                                   
                                                                               
 REPRESENTATIVE DAVIS asked for Representative Parnell's definition            
 of "equivalent domestic relationship."                                        
                                                                               
 REPRESENTATIVE PARNELL's intent is for any physician who is in an             
 intimate relationship with a person.  It is defined in statute.               
                                                                               
 CO-CHAIR BUNDE asked if, for the record, a long-term relationship             
 is meant.                                                                     
                                                                               
 REPRESENTATIVE PARNELL said yes, but it is open to interpretation             
 as to the definition of "long-term."                                          
                                                                               
 REPRESENTATIVE CAREN ROBINSON moved CSHB 35(HES) with accompanying            
 zero fiscal note and individual recommendations.  There were no               
 objections, and the bill passed out of committee.