“Consensual” sexual activity between doctors and patients : a matter for the Criminal Law?

Ost, Suzanne and Biggs, Hazel (2012) “Consensual” sexual activity between doctors and patients : a matter for the Criminal Law? In: Bioethics, medicine, and the criminal law : the criminal law and bioethical conflict : walking the tightrope. Cambridge University Press, Cambridge, pp. 102-117. ISBN 9781107025127

Abstract

This chapter offers the beginnings of an exploration of what counts as exploitative sexual activity between a doctor and patient and of what role (if any) the criminal law should play. The issue of maintaining sexual boundaries between health care professionals and patients has become a significant matter of concern in recent years following several high profile scandals. Ethical and regulatory guidance takes the position that any engagement in sexual activity with a patient by a doctor is inappropriate and damaging. In this chapter, we first explore why this might be the case and whether sexual activity between doctor and patient is always exploitative. We consider whether consent can ever really freely be given in the context of this relationship. Does the imbalance of power between doctor and patient mean that the health care professional always effectively thwarts the patient’s capacity to give free consent to sexual activity? Secondly, we assess whether criminal law should be utilised to deal with cases where sexual activity with a patient amounts to wrongful, harmful behaviour on the part of the doctor.