“When a yes should mean no”: doctors and boundaries

We thank Dr Bhan for his letter in response to our paper ‘Elephant in the room’ (1, 2). He has correctly noted that even what might be described as consensual acts of sexual boundary violations (SBVs) between doctors and their patients are not truly so due to the power differential in their relationship. This is why our paper points out that “consensual” acts of SBVs with adults are considered unethical but not illegal — barring issues around the law on adultery in India at present (3). We refer to “consensual” within inverted commas, as the validity of consent for such acts is questionable because the patient might have said “yes” — or at the minimum did not say “no” — because of transference issues. Transference reactions are the attitudes and feelings patients bring into the relationship based on their relationship with significant others in their life. These can arise in any doctor-patient interaction. This is an issue which has been discussed in detail in the publication we quote in our paper (4). Unless doctors are trained to anticipate and deal with such issues, their own “counter transference” can put themselves and their patients at risk. Thus, the doctor will need to understand why these acts are unethical even if the patient does not say no, if s/he says yes or even if s/he seems to initiate the act.

These issues are known to arise when non-sexual boundary violations (NSBVs) have “slipped into” SBVs, often in the context of an “emotional relationship” between the patient and doctor (5). However, there are situations like unnecessary physical examination where the patient might not even realise that s/he has been submitted to an unnecessary procedure. These are no different from other acts of sexual abuse. As Bhan rightly points out, medical societies in India need to define what appropriate physical contact is, especially regarding intimate physical examination (1).

Bhan also raised the issue of the capacity of psychiatric patients to give consent. Generally when a patient is acutely psychotic or delirious there is obviously no question of the patient being capable of giving consent. (It is also unlikely that the doctor and patient will get drawn into an emotional relationship with each other at this time). Other situations where issues of consent do not arise are with adults with impaired intellectual functioning or with children. The grey areas would be situations where the adult patient may be capable of consent for other civil contracts but not in a position to give a valid consent for a sexual relationship with the doctor, due to transference issues. (This is grey only from a legal viewpoint, not an ethical viewpoint).

As stated in our original paper we excluded sexual harassment, sexual molestation and rape from the purview of our paper as we felt that there is no need to generate an ethical debate on why it is unacceptable. Even though offenders who commit these crimes (if they do admit to them), tend to rationalise their behaviour and say, “The no meant yes,” we all know and accept that these acts are crimes. We hope the results of our study will raise awareness on why, in the context of sexual contact in a doctor-patient relationship, a patient’s “yes” should still mean a “no”.