14 June 2016

Medical Fiduciaries

'Breaching The Sexual Boundaries In The Doctor-Patient Relationship: Should English Law Recognise Fiduciary Duties?' by Suzanne Ost in (2016) 24(2) Medical Law Review 206-233 considers whether sexual exploitation in the doctor–patient relationship would be dealt with more appropriately by the law in England and Wales on the basis of a breach of fiduciary duty. Three different types of sexual boundary breaches are discussed, with a focus is on breaches where the patient's consent is obtained through inducement. Ost argues that current avenues of redress do not clearly catch this behaviour, failing to capture the essence of the wrong committed by the doctor—the knowing breach of trust for self-gain—and the calculated way in which consent is induced.

 Ost comments
The central argument presented in this article is that doctors' breaches of sexual boundaries would be most appropriately responded to through the recognition of fiduciary obligations. Whilst the argument has previously been made that sexual exploitation in certain relationships may be dealt with more fittingly at law on the basis of a breach of fiduciary duty, this claim has been made in the broader context of all professional relationships in which one party ‘has responsibility for the [other's] emotional or psychological well-being’. My concern is more specific. It is centred on the doctor–patient relationship for three reasons.
First, this professional relationship, which is so fundamental in our society, offers a considerable exploitative opportunity for the unscrupulous doctor. This is due to not merely the significant imbalance of power, but also the unique way in which the relationship will readily furnish opportunities for sexual exploitation. Other professional relationships—such as social worker–client or solicitor–client—will seldom if ever do likewise, for as Archard explains, ‘[a] patient … must open herself up, lay herself bare, share significant confidences with her doctor’. In such a relationship that is so dependent on trust, there is clear evidence that the sexual exploitation of patients has a deleterious effect on their mental well-being. Moreover, the sexual nature of the exploitation in the unequal relationship between the doctor and patient serves to render especially egregious the abuse of trust. Secondly, as I will demonstrate, a fiduciary duty not to breach the sexual boundaries can be grounded in the doctor's professional responsibilities not to breach trust or to act out of self-interest, and is compatible with the contemporary pro-patient autonomy model of the doctor–patient relationship.
Thirdly, although the ethical obligation on doctors to refrain from breaching sexual boundaries with their patients is far from new, being traceable to the Hippocratic Oath, medical professionals’ adherence to this ethical imperative has been raising growing concern. Over the past 20 or so years, there has been a series of well-publicised cases in which doctors were alleged to have behaved in a sexualised way towards their patients. Initially, there was the Department of Health's inquiry concerning GP Clifford Ayling, who was alleged to have committed indecent assaults on female patients over a period of 30 years. This was followed by a second inquiry into sexual abuse allegations made by female psychiatric patients against two male psychiatrists, and media coverage of allegations against GPs Oladapo Idowu and Benjamin Deodhar. More recently, a tribunal upheld a Primary Care Trust's decision to bar GP Navin Zala from working in its area in 2012 following allegations that he had sexually abused patients over a 20-year period. He was subsequently convicted of 10 counts of indecent assault and sentenced to 11 years imprisonment. And, at the beginning of 2014, the Fitness to Practice of the Medical Practitioners Tribunal Service suspended Dr Srinivas Yenugula, having ruled that he had provided ‘sexually motivated’ treatment to numerous female patients.
This article's unique contribution lies in its detailed critical scrutiny of the synergy between fiduciary duties, the obligation to maintain sexual boundaries, and (the nature of) the doctor–patient relationship. The case for dealing with a doctor's sexual misconduct through recognising fiduciary duties has previously been made by Tan. However, whilst I reach broadly the same conclusion regarding the appropriateness of fiduciary law to tackle this behaviour, this article takes forward Tan's briefer analysis in a number of important respects. First, I consider the issue of prevalence to demonstrate the significance of the problem. Secondly, whilst Tan focusses on battery as an alternative cause of action for the patient, I consider the suitability of both battery and negligence. Thirdly, I subject the question of whether the case for fiduciary obligations is made out to greater critical and analytical scrutiny. Finally, I draw important connections between fiduciary obligations and the contemporary model of the doctor–patient relationship.
The article unfolds as follows. I begin by exploring what sexual boundary breaches within the doctor–patient relationship are and consider also their prevalence, before explaining why such breaches of sexual boundaries can be harmful and exploitative. I then differentiate between three different types of sexual boundary breaches. My particular focus is on breaches involving inducement. I do not address cases of rape or sexual assault, which would ordinarily be dealt with by the criminal law. Rather, I am concerned with instances where doctors engage in sexual behaviour with their patients when patients acquiesce, but whilst their consent might be questioned because they have been induced into sexual activity by the doctor, the question of whether their consent is invalid at law is not clear cut. Take, for instance, the case of cosmetic surgeon, Fabian Baez, who offered to provide a botox procedure for free to a patient in exchange for sexual favours. In such a case, the patient consents to the sexual activity; however, her only reason for so doing is to obtain the surgery she desires. The surgeon takes advantage of the patient, knowing that offering her the procedure is likely to be sufficient inducement to gain her acquiescence to sexual activity. Considering such wrongful and harmful breaching of the sexual boundaries by doctors, I explore what is available in terms of legal redress. I contend that the current avenues of redress do not lend themselves well to such sexual exploitation because it is not clear that they catch this behaviour. Moreover, they fail to capture the essence of the wrong committed by the doctor—his knowing breach of trust for self-gain, having allowed a conflict to arise between his duty to the patient and his self-interest—and the calculated way in which consent is induced. I thus argue that these cases would be more appropriately dealt with if the law recognised a doctor's liability for breach of fiduciary duty. Finally, I proceed to elucidate the way in which the fiduciary approach can be synthesised with the contemporary pro-patient autonomy model of the doctor–patient relationship.