Most health care related professional licensing schemes contain a uniform proscription against engaging in sexual intimacies with clients. This sexual conduct bar does not depend on consensual or non-consensual acts. Violating this conduct is the first and surest way to lose your professional license. Prior relationships with current licensee and current relationships with former patients also creates huge problems.
The General Assembly, through the Pennsylvania Code defines Sexual intimacies as romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:
- (i) Sexual intercourse, or any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
(ii) Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.
(iii) Sexual invitations.
(iv) Soliciting or accepting a date from a client/patient.
(v) Masturbating in the presence of a client/patient or encouraging a client/patient to masturbate in the presence of the licensed marriage and family therapist.
(vi) Indecent exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature. 49 Pa. Code § 48.1
- (a) The consent of the patient to any sexual impropriety or violation is not a defense to any disciplinary charge for violation of the act or this subchapter.
- (b) Evidence of specific instances, opinion evidence, or reputation evidence of a patient’s past sexual conduct is not admissible in proceedings brought under § 21.148(b)(9) (relating to standards of nursing conduct). The Board may consider sexual relationships between the nurse and the patient occurring prior to the professional relationship.
- (c) A nurse who attempts to raise as a defense an argument that conduct prohibited as a sexual violation or sexual impropriety was necessary or appropriate to the treatment of a patient shall be required to demonstrate competency in practice which relates directly to the treatment of sexual function or dysfunction. This competence may be demonstrated through educational training and supervised clinical experience. Appropriate discussions of sexual matters between a nurse and a patient shall be fully documented in patient records.
Apparently this conduct is prevalent in the psychology, psychiatry, licensed marriage and family therapist, and LSW and professional counselor professions. I say this because the language in each of these licensing regulatory schemes is exact, precise, and consistently repeated throughout. The law is very clear about this topic: 49 Pa.Code § 47.61 states: Sexual intimacies between a licensed social worker or licensed clinical social worker and a current client/patient, or an immediate family member of a current client/patient, are prohibited. More importantly, licensed social workers and licensed clinical social workers may not accept as client/patients individuals with whom they have engaged in sexual intimacies. For how long you ask? Sexual intimacies between a licensed social worker or licensed clinical social worker and a former client/patient, or an immediate family member of a former client/patient are prohibited for 7 years following the termination of the professional relationship.
Violation of these provision will warrant disciplinary action:
- (a) A violation of § § 47.61—47.63 (relating to prohibited conduct; former sexual partners as clients/patients; sexual intimacies with a former client/patient or an immediate family member of a former client/patient) will be deemed unprofessional conduct and will subject the licensed social worker or licensed clinical social worker to discipline under section 11(a)(2) of the act (63 P. S. § 1911(a)(2).
- (b) The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the licensed social worker or licensed clinical social worker is not a defense in any disciplinary action brought under § § 47.61—47.63.
Pennsylvania does not recognize, along with all other states, that a mental health professional’s conduct in engaging in a sexual affair with a patient is actionable in tort (a medical malpractice action). Thierfelder v. Wolfert, 617 Pa. 295, 327, 52 A.3d 1251, 1271 (2012). However, our Commonwealth court routinely concludes the State Board of Medicine properly orders, and it is within their authority, that psychiatrist’s license to practice medicine be revoked on ground that he had engaged in sexual relations with his patients. (“Revocation of psychiatrist’s license was reasonable sanction in light of his conduct.) Starr v. State Bd. of Med., 720 A.2d 183 (Pa. Commw. Ct. 1998); Morris v. State Bd. of Psychology, 697 A.2d 1034 (Pa. Commw. Ct. 1997).
- (8) Being guilty of immoral or unprofessional conduct. Unprofessional conduct shall include departure from or failing to conform to an ethical or quality standard of the profession. In proceedings based on this paragraph, actual injury to a patient need not be established.
- (i) The ethical standards of a profession are those ethical tenets which are embraced by the professional community in this Commonwealth.
- (ii) A practitioner departs from, or fails to conform to, a quality standard of the profession when the practitioner provides a medical service at a level beneath the accepted standard of care. The board may promulgate regulations which define the accepted standard of care. In the event the board has not promulgated an applicable regulation, the accepted standard of care for a practitioner is that which would be normally exercised by the average professional of the same kind in this Commonwealth under the circumstances, including locality and whether the practitioner is or purports to be a specialist in the area.
- (9) Acting in such manner as to present an immediate and clear danger to public health or safety. 63 P.S. § 422.41 (8) and (9).
The Boards and the courts consistently determine that having sexual intimacies with clients breaches ethical standards, standards of care, and constitutes immoral or unprofessional conduct. “Unprofessional conduct” includes “those breaches of trust, confidence and reliance, necessarily attendant upon the intimate relationship of physici and patient, which amount to gross abuses of the standards of professional conduct generally recognized as essential to the proper practice of medicine and surgery.” As well, the specific regulations above clearly state that it is of no consequence that intimacies occur either before or after a terminated client relationship. Importantly,