Legislature(1995 - 1996)
04/24/1995 01:12 PM House JUD
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* first hearing in first committee of referral
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CSHB 35 - SEXUAL MISCONDUCT BY MEDICAL PROFESSIONALS Number 450 REPRESENTATIVE SEAN PARNELL, bill sponsor, introduced CSHB 35. He stated that HB 35 is an act relating to sexual misconduct as grounds for imposing disciplinary sanctions on persons licensed by the State Medical Board. Sexual misconduct is not addressed expressly in statute, but current law permits the Alaska State Medical Board to impose sanctions for medical professionals engaged in unprofessional conduct, or lewd or immoral conduct in connection to the delivery of professional services. Most of us would categorize sexual misconduct by a doctor as unprofessional, or lewd or immoral. These broad categorizations do not send the message that we, as a society, do not want physicians engaging in sexual relations with patients who are under their care and control. The Alaska State Medical Board shares this sentiment, and according to their representative in a previous committee, doctors should be held to the highest standard in this area. We all know the physician/patient relationship is established on mutual trust. Sexual misconduct, in his view, is a breach of that trust. REPRESENTATIVE PARNELL mentioned that HB 35 would authorize the Medical Board to sanction doctors who engage in sexual misconduct and the bill briefly defines sexual misconduct on page 2. Granting the Medical Board express authority to sanction doctors who engage in sexual misconduct is critical for several reasons. The patient is extremely vulnerable, the doctor can use their status as a medical professional in over-reaching the bounds of professional conduct. Most importantly, the doctor's objective medical judgment is compromised if that doctor is engaged in sexual misconduct. Both the Alaska State Medical Association and the Network on Domestic Violence and Sexual Assault support HB 35. Number 500 CATHERINE REARDON, Director, Division of Occupational Licensing, Department of Commerce and Economic Development, shared the department's neutral position on this bill. They feel it will encourage the process that the Medical Board has been going through in trying to develop regulations defining sexual misconduct and unprofessional conduct. HB 35 will not greatly affect our disciplinary costs. The issue of regulating sexual contact outside of the work place is a policy call, and one that the legislature is the appropriate group to make. Although we have seen activities which involve sexual contact between physicians and patients outside the work place, which we would all feel inappropriate, however, the point that doctors also need to have opportunities to pursue their romantic lives has also been brought up. MS. REARDON pointed out that the Attorney General's Office contacted her indicating there is a definition for sexual contact in statute in Title 11. If the legislature does not want that definition to be applied to this bill, perhaps it would be helpful to clarify that definition. That appears in AS 11.81.900. It defines sexual contact in a more limited way than is intended by the legislature in this bill. MS. REARDON gave an example of the types of complaints they receive. A doctor sent a video tape of himself to one of his patients in which the doctor was nude. That was a pursuit which was going on outside of the work place, and yet, we would probably feel that was inappropriate. Number 550 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, spoke in strong support of HB 35. They have become increasingly aware of cases where there is sexual misconduct on the part of physicians, both inside and outside of the treatment setting. This is a bill that they feel has to take place. There has to be some sanctions. The American Medical Association has this kind of standard, and the Medical Ethics Board is interested in doing this also. This is the type of standard that is place for psychiatrists and attorneys. We feel physicians need to be included in that. CHAIRMAN PORTER asked Representative Parnell if the definition of sexual contact in AS 11.81.900 is what he had in mind for this bill. REPRESENTATIVE PARNELL said different states have done it different ways. AS 11.81.900 gets pretty specific, but does not include penetration. That is defined elsewhere. He did not want the definition to be limited to AS 11.81.900. He felt the definition in HB 35 should be more expansive than that. He felt the Medical Board could address the specifics of the definition. REPRESENTATIVE FINKELSTEIN expressed concern over the hundreds of small towns we have in this state. Oftentimes doctors are in one- doctor towns. And oftentimes, the doctors who will go to these places are young and single. In a one-doctor town, everyone is your patient. They may have not been in that week or that month, but that is who they are going to go to, right? This would be for immunizations and everything. He could not imagine how a single doctor would go out and serve in a rural community, because they could not get involved with anyone. Certainly that was not the sponsor's intent. REPRESENTATIVE PARNELL feared the potential for abuse in a one- doctor town was even greater than in a city. That is an issue. He felt that if a doctor was involved with a patient, they ought to terminate the relationship and refer the patient to another doctor, because of the vulnerability aspect. The care of the patient is the highest priority, not the doctor's sexual necessities. He felt they should include language that specifies "during the physician/client relationship." That is the direction Rhode Island has taken on the issue. REPRESENTATIVE FINKELSTEIN felt that was also unreasonable for a small town, since it is unclear when your physician/client relationship ends. REPRESENTATIVE TOOHEY said we are not going to state that doctors in a one-doctor town remain celibate. There has got to be a way that the State Medical Board can look at these case-by-case. Otherwise, you are going to have to get very old, or asexual people to work in small towns. REPRESENTATIVE VEZEY felt this language about sexual contact outside the treatment center is totally out of line and applicable to a psychiatrist/patient relationship. The Medical Board is having extreme difficulty addressing this, and the thought that we could address it is ludicrous. If you want to write a statute that addresses the bizarre example that was given previously, you could, but people are people, they are sexual creatures. He felt it absolutely inappropriate that we try to regulate romantic relationships between adults. REPRESENTATIVE PARNELL said that is where we disagree, based upon his opening statement, and the vulnerabilities. TAPE 95-52, SIDE A Number 000 REPRESENTATIVE FINKELSTEIN offered amendment one which would clarify that on page 2, lines 25 and 26, this sexual contact would not be allowed "during the existence of the physician/client relationship, as defined by the Board." This replaces the current phrase, "during the course of treatment or outside the treatment setting." Hearing no objection, amendment one was adopted. REPRESENTATIVE FINKELSTEIN offered amendment two. This would clarify the definition of "sexual misconduct." This would include sexual contact or attempted sexual contact as defined by the Board, and regulations adopted under this section. ANNE CARPENETI, Committee Aide, House Judiciary Committee, mentioned that to define sexual misconduct, this amendment would have to be tinkered with, because she did not think this section would give regulatory power. You would have to define it as regulations adopted under this chapter in Title 8. CHAIRMAN PORTER asked if Representative Finkelstein would be willing to change "under this section" to "under this chapter." REPRESENTATIVE FINKELSTEIN answered that he would be willing to make this whole thing a conceptual amendment to avoid any of these problems. REPRESENTATIVE GREEN suggested having the bill drafter come up with the right language, because it is not just sexual contact; it is inappropriate sexual contact. It includes sexual contact, and sexual contact may be perfectly alright and still not be sexual misconduct; taking a vaginal examination, for example. This is sexual contact by a licensed physician, but it is not misconduct. REPRESENTATIVE PARNELL clarified that is why the language was provided on line 23 that adds, "outside the scope of generally accepted methods of examination or treatment." Presumably an obstetrician/gynecologist exam is within that scope. CHAIRMAN PORTER said he would feel better if they made it a conceptual amendment. He felt they were trying to say that the Board should define "sexual misconduct" and "sexual contact." REPRESENTATIVE FINKELSTEIN asked if he could offer this as a conceptual amendment that would require the Board to develop regulations related to sexual contact, and its limits in the physical realm. We have the rest of the definition of sexual misconduct here. It is only the degree to which contact ranges, that is what we are after here. REPRESENTATIVE TOOHEY asked him to say that again. REPRESENTATIVE FINKELSTEIN restated that they would somehow write in a way that implies the physical side of the limits of sexual contact. We are not talking here anymore about the term or the existence of the client relationship or the spouse. That is all in the later stuff. All we have left here is what is in the range of things starting from what could be determined as sexual contact. They need to have a definition of the physical range. This would just be a conceptual amendment. REPRESENTATIVE PARNELL said that was fine. CHAIRMAN PORTER clarified that amendment two is a conceptual amendment that will allow the Board to write regulations that extend the definition of sexual contact, as it is within sexual misconduct that they are now attempting to define in any event. REPRESENTATIVE VEZEY felt the area we are trying to address is actually much better covered in the tort liability these health care professionals have. He did not think the committee could succeed in codifying what our goal is here. CHAIRMAN PORTER asked if there was further discussion on the bill, or objection. Hearing no objection, amendment two was passed. REPRESENTATIVE FINKELSTEIN moved to pass the bill out of committee, as amended, with individual recommendations and zero fiscal notes. CHAIRMAN PORTER said we would draft a CS with these amendments incorporated, then meet with the sponsor and anyone else who wants to be in the loop. REPRESENTATIVE TOOHEY said she would like to be in the loop. CHAIRMAN PORTER said if anyone has objections to what they have crafted, then they can let him know, but the bill will be held until that is accomplished. He asked if there was objection to moving the bill under the conditions stated. Hearing no objection, under the conditions stated, CSHB 35(JUD) passed out of committee.
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