Continuing Concerns About Sexual Misconduct
The board continues to receive a significant number of complaints alleging sexual
misconduct - in fiscal year 00/01 - 133 complaints; fiscal year 01/02 - 134 complaints.
The complaints range from inappropriate remarks to improper touching to illegal
sexual relationships to sexual assault and rape.
Allegations of sexual misconduct have always been one of the highest priorities
of the board's Enforcement Program and can result in criminal prosecution as well
as disciplinary action against the physician's license.
If complaints are substantiated to a level of proof which is clear and convincing,
discipline for a violation of Business and Professions Code section 726 - sexual
misconduct - can range, minimally, from seven years of probation (with various specified
terms and conditions) to license revocation.
A violation of section 729 - sexual exploitation - can result in administrative
and criminal charges being filed against the licensee. Further, Business and Professions
Code section 2246 was added in January 2003, stating any proposed decision, which
contains a finding of fact that the licensee engaged in multiple acts of sexual
exploitation, "shall contain an order of revocation. The revocation shall not be
stayed by the administrative law judge."
Generally, complaints fall into two categories: those against therapists and those
against all other practice specialties. Complaints against therapists often include
boundary issues alleging some type of improper relationship with the patient. In
addition, conversations between a physician and patient can be taken out of context
by the patient. Physicians should use caution when questioning patients about their
history, especially when their sexual history is discussed, as some patients have
interpreted the discussion as sexual advances by the physician.
Complaints against non-therapist physicians typically allege improper examination
of the breasts or genitalia. Sometimes, the board receives complaints that a patient
simply did not understand what the doctor was doing and was too embarrassed to ask
Many patients are unfamiliar with examination procedures and become concerned when
a physician offers a modality or treatment that differs, in any way, from their
prior examination experience. Cultural differences may further contribute to this
During the examination, physicians are encouraged to describe the treatment to the
patient at an appropriate level of comprehension, to promote understanding.
While third-party chaperones are not mandatory when examining patients, they may
help avoid misunderstandings and patient complaints. However, if a chaperone is
used, he or she should be encouraged to pay attention to the patient or the particular
procedure being performed.