| (a) Sexual misconduct is behavior that exploits the
physician-patient or physician-staff member relationship in a sexual
way. This behavior is non-diagnostic and non-therapeutic, may be verbal
or physical, and may include expressions of thoughts and feelings
or gestures that are sexual or that reasonably may be construed by
a person as sexual.
(b) Sexual misconduct may be the basis for disciplinary
action if the behavior was injurious or there is an exploitation of
the physician-patient or physician-staff member relationship.
(c) Sexual violation may include physician-patient
or physician-staff member sex, whether or not initiated by the patient/staff,
and engaging in any conduct with a patient/staff that is sexual or
may be reasonably interpreted as sexual, including but not limited
to:
(1) sexual intercourse, genital-to-genital contact;
(2) oral to genital contact;
(3) oral to anal contact, genital to anal contact;
(4) kissing in a romantic or sexual manner;
(5) touching breasts, genitals, or any sexualized body
part for any purpose other than appropriate examination or treatment,
or where the patient/staff has refused or has withdrawn consent;
(6) encouraging the patient/staff to masturbate in
the presence of the physician or masturbation by the physician while
the patient/staff is present; and
(7) offering to provide practice-related services,
such as drugs, in exchange for sexual favors.
(d) Sexual impropriety may comprise behavior, gestures,
or expressions that are seductive, sexually suggestive, or sexually
demeaning to a patient/staff, including but not limited to:
(1) disrobing or draping practices that reflect a lack
of respect for the patient's/staff's privacy, deliberately watching
a patient/staff dress or undress, instead of providing privacy for
disrobing;
(2) subjecting a patient/staff to an intimate examination
in the presence of medical students or other parties without the explicit
consent of the patient/staff or when consent has been withdrawn;
(3) examination or touching of genitals without the
use of gloves;
(4) inappropriate comments about or to the patient/staff,
including but not limited to making sexual comments about a person's
body or underclothing, making sexualized or sexually demeaning comments
to a patient/staff, criticizing the patient's/staff's sexual orientation
(transgender, homosexual, heterosexual, or bisexual), making comments
about potential sexual performance during an examination or consultation
except when the examination or consultation is pertinent to the issue
of sexual function or dysfunction, requesting details of sexual history
or sexual likes or dislikes when not clinically indicated for the
type of consultation;
(5) engaging in treatment or examination of a patient/staff
for other than bona fide health care purposes or in a manner substantially
inconsistent with reasonable health care practices;
(6) using the physician-patient or physician-staff
member relationship under the pretext of treatment to solicit a date;
(7) initiation by the physician of conversation regarding
the sexual problems, preferences, or fantasies of the physician; and
(8) examining the patient/staff intimately without
consent.
(e) Sexual exploitation by a practitioner is the breakdown
of the professionalism in the physician/patient/staff relationship
constituting sexual abuse. Sexual exploitation may undermine the therapeutic
relationship, may exploit the vulnerability of the patient/staff,
and ultimately may be detrimental to the patient's/staff's emotional
well-being, including but not limited to:
(1) causing emotional dependency of the patient/staff;
(2) causing unnecessary dependence outside the therapeutic
relationship;
(3) breach of trust; and
(4) imposing coercive power over the patient/staff.
(f) A third impartial person who is the same sex as
the patient must be present in the examining room if a patient is
asked to disrobe or if the genitalia are examined.
(g) The practitioner under investigation for sexual
misconduct may be required to have a complete medical evaluation,
including appropriate mental and physical examination. Laboratory
examination should include appropriate urine and blood drug screens.
(h) The psychiatric history and mental status examination
is to be performed by a psychiatrist knowledgeable in the evaluation
suspected of sexual misconduct. The examination may include neuropsychological
testing.
(i) Sexual violation or impropriety may warrant disciplinary
action by the department up to and including revocation of license.
(j) In the event a physician applies for license reinstatement,
any petition for reinstatement will include the stipulation that additional
mental and physical evaluations may be required prior to the department's
review for reinstatement to ensure the continuing protection of the
public.
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