Over the past several years, allegations of sexual misconduct among acupuncture practitioners have become more commonplace. As a result, clinics have to become much more vigilant in implementing policies to avoid sexual misconduct allegations.
These allegations may be brought against an acupuncturist as a professional liability claim, as a complaint filed with the state licensing board, or as part of a criminal action. Even an unfounded allegation can have a devastating emotional, personal, and professional impact on practitioners and place them at greater risk for error and patient harm.
Sexual misconduct consists of many different behaviors on a continuum of escalating severity and may occur in person, by telephone or text, or via the internet. Sexual misconduct may begin with behavior that includes offering favors or gifts, sharing personal information, or other acts designed to gain the patient’s trust. The behavior may escalate in severity to include sexually inappropriate language and physical contact. Regardless of the specific behavior, sexual misconduct is always a breach of trust and an ethical violation.
Risk-Management Strategies
While no practitioner is immune to a sexual misconduct allegation, your exposure risk can be minimized by implementing the following risk-management strategies:
Maintain professional boundaries. Patient-doctor relationships function optimally when professional boundaries are observed. Maintain professional boundaries by:
- Not socializing with patients outside of the professional healthcare setting
- Not seeing patients alone after-hours in the healthcare setting
- Using caution when communicating with patients over social media; separate personal and professional presence and content online
- Never engaging in sexual relations with a patient
- Terminating the patient-practitioner relationship with patients who behave in a manner that indicates they are seeking a personal or sexual relationship
Always have a witness present. If possible, consider having a witness available and present during care and examination. Implement a policy that requires a witness for all sensitive examinations or treatments that are sensitive in nature, occur in sexually sensitive areas of the body, require disrobement, etc. Use a witness regardless of the sex/gender of the person performing the exam or the sex/gender of the patient. If a patient refuses a witness, consider referring them out of the clinic.
If you are a solo practitioner and a witness is not an option, consider working with an attorney to explore other options that may be available under state and federal law to protect you against allegations of sexual misconduct.
Consider the needs of minor patients. Always perform examinations of minors in the presence of a parent or guardian. If a parent or guardian is unavailable, a witness should be present. If an examination or treatment that is sensitive in nature occurs in sexually sensitive areas of the body, requires disrobement, etc., use a witness in addition to having the parent present.
Educate the patient. Patients should never be surprised by care rendered in your office. Prior to performing an examination or any form of treatment, especially one that involves sexually sensitive areas of the body such as the breasts, groin, hips, or buttocks, be sure to explain to the patient why the exam or treatment is needed and what it will entail. Get verbal consent before moving forward and thoroughly document the informed-consent discussion in the treatment note.
Ensure privacy and dignity. Provide a place for patients to disrobe that is private and out of the view of anyone else or any security cameras in the office. Offer the patient an appropriate gown or cover when disrobement is required. Do not remain in the room while patients are disrobing.
Educate staff. All clinical personnel should be educated about the power imbalance between patients and practitioners and should understand professional boundaries. Staff should be familiar with and understand policies regarding sexual misconduct, risk factors for sexual misconduct, and procedures for reporting misconduct.
Know the law. State law provides specific guidance regarding reporting obligations related to sexual misconduct allegations. Ensure that you are familiar with those obligations and that they are reflected in your policies and procedures. If you are unsure, check with your state board or state association.
Seek adequate insurance coverage. Despite the implementation of best practices, a sexual misconduct allegation can occur. This allegation can be expensive to defend even if it later proves to be untrue. Consult your malpractice insurance policy to determine whether it includes adequate coverage for costs related to defense against allegations of sexual abuse or misconduct.
Document properly. Base the performance of sensitive or intimate exams on direct clinical indications. Be sure to document in the medical record the clinical indication for the exam, the education provided to the patient about the exam, the identity of the witness present for the exam, and the verbal consent you receive from the patient prior to performing the exam. When a patient refuses a witness, document the patient’s refusal and refer out if necessary.
Dealing with a sexual misconduct allegation – even an unfounded one – can be a life-altering event. Implementation of proactive risk-management strategies can help avoid sexual misconduct allegations before they occur.
