TESTIMONY OF THE MAINE MEDICAL ASSOCIATION

IN OPPOSITION TO

L.D. 13, AN ACT TO REQUIRE CERTAIN LICENSING BOARDS TO REPORT CASES OF SEXUAL ABUSE OF A PATIENT OR CLIENT BY A LICENSEE TO A LAW ENFORCEMENT AGENCY OR THE DEPARTMENT OF HEALTH & HUMAN SERVICES

Joint Standing Committee on Labor, Commerce, Research, & Economic Development

Room 208, Cross State Office Building

Tuesday, January 31, 2017, 1:00 p.m.

Good afternoon Senator Volk, Representative Fecteau, and Members of the Joint Standing Committee on Labor, Commerce, Research, & Economic Development.  My name is Andrew MacLean and I am Deputy Executive Vice President & General Counsel of the Maine Medical Association and I am speaking in opposition to L.D. 13, An Act to Require Certain Licensing Boards to Report Cases of Sexual Abuse of a Patient or Client by a Licensee to a Law Enforcement Agency or the Department of Health & Human Services.

The Maine Medical Association is a professional organization representing more than 4000 physicians, residents, and medical students in Maine whose mission is to support Maine physicians, advance the quality of medicine in Maine, and promote the health of all Maine citizens.

The MMA appreciates the concern of Representative Espling and the co-sponsors of the bill for patients who may be subjected to inappropriate sexual behavior by a clinician and our opposition to the bill certainly does not mean that we condone such behavior.  Our opposition is based, first, on a belief that the health professions licensing boards in Maine understand and take seriously their public protection role and deserve discretion in carrying out their disciplinary function when considering issues that arise in the licensee-patient relationship.  Second, even if the Committee were to decide this level of oversight for health professions licensing boards is necessary, we see some technical, drafting issues with the bill.

Current ethical and legal guidance on inappropriate sexual behavior by clinicians

I will focus my comments here on the ethical and legal guidance for the Board of Licensure in Medicine because that is the health professions licensing board with whom we are most familiar.  The Code of Medical Ethics of the American Medical Association, a standard of the profession of medicine, includes two opinions that are relevant to your consideration of L.D. 13:  Opinion 9.1.1, Romantic or Sexual Relationships with Patients and Opinion 9.1.2, Romantic or Sexual Relationships with Key Third Parties.  The first sentence of Opinion 9.1.1 is clear in stating that “[r]omantic or sexual interactions between physicians and patients that occur concurrently with the patient physician relationship are unethical.”  The two physician licensing boards also have developed an administrative rule called Joint Rule Chapter 10, Sexual Misconduct.  This ethical and legal guidance is directly applicable to inappropriate sexual behavior by a physician towards a patient, commonly called “boundary violations.”  I have attached the two ethics opinions and the joint rule to my testimony for your review.  Two provisions of the Maine Criminal Code, 17-A M.R.S.A., Part 2, Chapter 11, Sex Assaults and Chapter 12, Sexual Exploitation of Minors may also be applicable to some situations.  Finally, in some situations, the licensing authorities might consider the application of the child abuse and neglect reporting laws, 22 M.R.S.A., Chapter 1071, Subchapter 2, Reporting of Abuse or Neglect. 

The MMA submits that the health professions licensing boards, with the advice of their assistant attorneys general, can properly review a set of facts before them through a complaint and determine the appropriate course of action – action against the licensee by the board or referral to a law enforcement agency, the Department of Health & Human Services, or other governmental entity -without the specific guidance of the legislature as suggested in L.D. 13.

A psychiatrist who participated in our Legislative Committee discussion of this bill, later expressed a concern that this bill could be an infringement on the rights of victims of boundary violations.

Unfortunately boundary problems happen with healthcare professionals from time to time. When they do, it is psychologically important for victims to be able to make complaint and seek redress with autonomy over the process.  For personal reasons, some victims will choose to seek redress through criminal, civil or regulatory channels. They may choose regulatory channels (i.e. Board complaint) because it offers much more privacy than a legal proceeding. If this bill automatically adds a legal proceeding to the process, then they lose the privacy they had sought.

Technical, drafting issues with the bill

Based upon the discussion above, the MMA urges the Committee not to proceed with the bill.  But, should the Committee decide to do so, we suggest that you give some further thought to the scope of the reporting obligation in the bill.  The various ethical and legal provisions cited above use some defined terms, but I do not believe any of them use the term “sexual abuse” as contained in the bill but not defined.  Also, the bill should apply to all Maine licensed health care professionals, not just those covered in the bill as drafted.  Nurses would be just one large group of licensees who have frequent face-to-face interactions with patients who are not covered in the bill.

Thank you for considering the views of the Maine Medical Association on L.D. 13.  I would be happy to respond to any questions you may have.