Legal considerations sexual misconduct in the workplace
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Today we will be discussing legal considerations dealing with professional boundaries and sexual misconduct in the workplace. We will examine in depth what sexual misconduct is, and how to prevent this from happening in our nursing practice. This presentation will also review the nurse practice act and its view on sexual misconduct. If you have any questions, please don’t hesitate to ask.
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Legal considerations sexual misconduct in the workplace
- 1. By Tosin Ola, RN, BSN
- 2. Protect the patient Caters to patient’s dignity and respect Prevents nurses from using their power and knowledge to affect the patient’s life Boundary crossings Professional misconduct
- 3. Excessive self disclosure Secretive behavior Super nurse behavior Singled out client treatment
- 4. Client attention to the nurse Selective communication Flirtations You and me against the world Failure to protect
- 5. A nurse obtaining sexual gratification with a patient Sexual conduct a patient interprets as demeaning or harassing Sexual congress with a patient who consents or accepts Flirting, seductive behavior Inappropriate nurse behavior
- 6. Touching patients inappropriately Sexual harassment Sexual abuse Forming personal relationships outside the professional setting Having sexual contact with patients or clients
- 7. Most professional liability insurances do not cover sexual misconduct. Hospitals can be found culpable in sexual misconduct cases due to: Forseeability Negligence Master-servant laws
- 8. Sexual Misconduct in the Workplace First offense: Consensual First offense: Non-consensual Complaint filed by patient or other health care professional Internal Investigation Internal investigation and reporting to the police Written Warning Second offense Criminal charges and possible arrest Termination Possible Litigation from Victim Possible Litigation from Victim and Employer
- 9. Mandatory reporting of sexual abuse Patient safety is the nurses’ priority Consult supervisor if unsure Document incidents Comply with reporting requirements
- 10. Sexual contact or attempted sexual contact with a patient Convicted with criminal felonies Failure to report Fines
- 11. Be aware Be cognizant of feelings and behavior Be observant of the behavior of other professionals Always act in the best interest of the client.
- 12. Abel, G. (2005). Professional misconduct. Retrieved September 14, 2009, from http://www.bmiatlanta.com/PSM.html Alligood, M. R., & Tomey, A. M. (2006). Nursing theory: Utilization and application (3rd ed.). St Louis, MO: Mosby Elsevier. American Nurses Association (2001). Code of ethics for nurses with interpretive statements. Retrieved September 14, 2009, from http://www.nursingworld.org/ Guido, G. W. (2006). Legal and ethical issues in nursing (4th ed.). Upper Saddle River: NJ: Prentice Hall. National Council of State Boards of Nursing (2007). Professional boundaries and sexual misconduct. Retrieved September 14, 2009, from https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf
- 13. Oregon State Board of Nursing (2008). Nursing state practice act. Retrieved September 14, 2009, from http://www.osbn.state.or.us/OSBN/pdfs/npa/Div45.pdf Parish, C. (2008). Think the unthinkable. Nursing Standard, 22(50), 17-19. Retrieved from ProQuest database on September 13, 2009. Santa Barbara Cottage Hospital (2006). Hospital policies manual. Retrieved from the Cottage Hospital employee intranet website on September 14, 2009. Weeks, S., Drake, L., Hehir, B., & Scullion, J. (2009). The love taboo. Nursing Standard, 23(43), 28-29. Wright, L. (2006). Violating professional boundaries. Nursing, 36(3), 52-54. Retrieved from MEDCINL database on September 12, 2009.
Editor's Notes
- Hello everyone, my name is Oluwatosin Ola, but you can just call me Tosin. Today we will be discussing legal considerations dealing with professional boundaries and sexual misconduct in the workplace. We will examine in depth what sexual misconduct is, and how to prevent this from happening in our nursing practice. This presentation will also review the nurse practice act and its view on sexual misconduct. If you have any questions, please don’t hesitate to ask.
- As a health care professional, a nurse strives to inspire the confidence of clients, treat all clients and other health care providers professionally, and promote theclients’ independence (National Council of State Boards of Nursing [NCSBN], 2007). According to the Code of Ethics for Nurses (2002), patients should expect a nurse to respect their dignity and act in their best interests at all times. There is a boundary that exists between patients and nurses, and this boundary is in place to prevent the nurse from obtaining personal gain from the nurse-patient relationship, sexual misconduct and inappropriate involvement in the patient’s life. Nurses have an upper hand in the nurse-patient relationship, since they have access to personal details of the patient’s health and confidential knowledge. “Establishing boundaries allows the nurse to control this power differential and allows a safe connection to meet the client’s needs” (NCSBN, 2007, p. 3).Crossing the professional boundary may cause undue stress, emotional upheavals and confusion to the patient and should be avoided as much as possible. However, sometimes a boundary crossing is inadvertent and easily rectified. When a serious boundary violation occurs, this is called professional misconduct (NCSBN, 2007).
- There are many different types of boundary violations which may lead to future professional misconduct. Some of these violations occur easily and inadvertently. It is essential that nurses understand these violations to avoid crossing them. The NCSBN has provided an outline of the main violations. As we go through this list, take note of the ones you might have transgressed on without even knowing. I have crossed a few on this list in my professional practice, and I am sure that others can relate to this as well. Let us examine them now:Excessive self disclosure: This occurs when a nurse over-shares feelings, personal problems or emotional intimacies with the patient (NCSBN, 2007, p. 8). For example, telling the patient that one just got dumped, discussing ones financial problems , or confessing that you have ‘the hots’ for an attractive physician is very inappropriate.Secretive behavior: This occurs when the nurse keeps secrets with the client and becomes guarded when anyone questions this behavior (NCSBN). A nurse on a unit I worked on was penalized for keeping secrets. The patient had his family bring in his home narcotics. The nurse was aware of this, but did not take the narcotics from him and store in the pharmacy per policy. Instead she kept the secret until the patient overdosed and had to be coded on the floor. She was later terminated.Super nurse behavior: The nurse believes that he or she is immune from fostering a non-therapeutic relationship and that only he or she understands and can meet the client’s needs (NCSBN). This usually occurs when a nurse gets too emotionally invested in a patient and believes she is the best and only patient advocate.Singled out client treatment: This occurs when a nurse keeps switching her assignment to get the patient, visits the patient even when she is not at work and spends an inappropriate amount of time with the patient (NCSBN). This is one of the violations that I have had personal experience with.
- Client attention to the nurse: Patients exhibit this by buying presents or gifts for a particular nurse, requesting that only the nurse work with them and calling the nurse at home while the patient is in the hospital. Even something as simple as a cup of coffee can be the first step towards violating this professional boundary. Do not accept gifts from patients---ever.Selective communication: This occurs when the nurse doesn’t document or report the patient’s behavior in full, but selects what she chooses to disclose to others. Although some professional discretion is necessary, it is important to give the multidisciplinary team as much information on the patient that is gleaned as possible, so that the right medical treatment plan can be developed.Flirtations: The NCSBN (2007, p. 8), define flirtations as, “The nurse communicating in a flirtatious manner, perhaps employing sexual innuendo, off-color jokes or offensive language.” Some patients and family members may cross this line and try to flirt with you. It is the nurses’ responsibility to keep communications therapeutic and professional.You and me against the world behavior: This occurs when the nurse always sides with the patient regardless of the situation and is overly protective of the patient. An example is a patient on telemetry that sneaks outside to smoke. Although this is against hospital policy, some nurses allow them to leave without saying anything. Or getting the doctor’s order If something happened to the patient while they were smoking, both the nurse and the facility would be held responsible. When in doubt, follow hospital policy!Failure to protect the patient exists when the nurse does not recognize that she is attracted to the patient, does not report to the supervisor or notify a colleague of the situation. This example is actually a violation of the nurse practice act. We will discuss this later.
- There are many cases that have made headlines in recent years due to nurses crossing the professional barrier between patients and nurses. Given that one healthcare professional a week is barred for ‘sexual misconduct’, it is clearly a significant problem (Weeks, Drake, Hehir, & Scullion, 2009, p. 28). The National Council of State Boards of Nursing (2007, p. 3), describes professional sexual misconduct as “an extreme form of boundary violation and includes any behavior that is seductive, sexually demeaning, harassing or reasonably interpreted as sexual by the client.”Guido (2003), elucidates several court cases in recent years that related to sexual misconduct. The case detailed by Wright (2006, p. 29) tells the case of a male RN that met a psych patient at a facility where he was working. They became friendly, flirted, exchanged phone numbers and gifts. After her discharge, the patient started a sexual relationship with the nurse, and he even procured Klonopin pills for her without a prescription. The truth did come out a few weeks later and his nursing license was permanently revoked on the grounds of professional sexual misconduct, and practicing above the scope of practice. Let this be a lesson to all of us. Examples are listed above, let us go through them…*read through the slide*
- Professional Sexual Misconduct can take many forms. It can include “touching patients or clients inappropriately during the course of one's professional interaction with them, sexual harassing behavior, forming personal relationships with patients or clients outside of the professional setting, or having sexual contact with patients or clients” (Abel, 2005, ¶ 1). Touching patients inappropriately during professional activities like bed baths, diaper changes and procedures is a form of sexual misconduct. A male nurse was sued for inappropriate touching during auscultations of breath sounds (Guido, 2006).Sexual harassment is defined unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature (Parrish, 2006). A physician at a hospital I worked in had his license suspended, then revoked; after several sexual harassment charges were brought against him. Alligood & Tomey, (2002, p. 292), define sexual abuse as, “Sexual contact and touching in a nonconsensual manner that is offensive to that person. ” Sexual contact is any touching of the sexual or intimate parts of the body by either a mouth, hands, genitals or other objects. Sexual abuse can occur regardless of if the victim is asleep, drugged, incapacitated, unconscious or sedated.Forming personal relationships outside of the hospital is another form of sexual misconduct. Asking a patient out on a date, or accepting a date with a patient shortly after terminating the nurse-client relationship is still sexual misconduct. Of course, having sexual contact with the patient either in or outside of the hospital setting is a gross violation of professional boundaries and the highest form of sexual misconduct. Some practitioners might argue that the patient initiated or consented to the sexual congress, however, this is still deemed sexual misconduct (NCSBN, 2007).
- When any type of sexual misconduct takes place, the issue is no longer in the malpractice realm but becomes a criminal issue. As a result, most professional liability insurance companies have clauses that exclude all types of sexual misconduct (Guido, 2003).According to Guido (2003), hospitals can be found culpable in some sexual misconduct cases. Forseeability is one of the tort laws that may come up in court. “Foreseeability involves the concept that certain events may reasonably be expected to cause specific results”(Guido, p. 75). For example, if the hospital had an employee who had a felony for previous rape charges and this employee raped a patient or colleague, this law would determine the hospital culpable. If there were already multiple complaints against the rapist, and stricter disciplinary actions were not taken, this law states that the hospital is just as guilty as the offender. An example of negligence can occur in nursing homes or long term care facilities; where a resident is sexually assaulted or harassed by another resident. If the facility administration does nothing to prevent this from happening i.e. transferring the sex offender or providing additional security, they can be deemed negligent. The Master-servant law also gives some responsibility to the hospital. If a contracted employee (who is not permanently employed at the hospital), violates any professional boundary or engages in sexual misconduct; the hospital can be deemed liable as well (Guido, 2003).
- According to Santa Barbara Cottage Hospital’s policies regarding sexual misconduct (2008), the above disciplinary actions will be instituted. All complaints are investigated internally first by the risk management department .Written warnings will be provided for first offense, and if the case goes to criminal charges or a second offense, the employee will be terminated and may face litigation from the hospital to recoup damages and legal fees assessed in court.
- The nurse needs to be prepared to deal with violations by any member of the health care team. Patient safety must be the first priority. If a health care provider’s behavior is ambiguous, or if the nurse is unsure of how to interpret a situation, the nurse should consult with a trusted supervisor or colleague (NCSBN, 2007). The NCSBN (p. 10) also advises that, “Nurses should be familiar with reporting requirements, as well as the grounds for discipline in their respective jurisdictions, and they are expected to comply with these legal and ethical mandates for reporting.”Medical records tell a story. When healthcare professionals are called to court, the main thing that saves or breaks the case is having appropriate documentation. Since incidences take several months or years to make it to court, documenting properly and in a timely manner is the best defense against malpractice claims regarding sexual misconduct. If a nurse sees another health care professional engaging in any form of sexual or professional misconduct and does not do anything about it, she can be found negligent. To protect oneself, nurses should report inappropriate activity through the specified facility channels. This way, an internal investigation can be initiated to and proper disciplinary actions taken.
- The Oregon State Board of Nursing [OSBN] in the Nurse Practice Act (2007), laid out the requirements of nurses regarding sexual misconduct. “Engaging in or attempting to engage in sexual contact with a client; and failing to maintain professional boundaries with a client” (Section: Actions Derogatory to the Nurse Practice Act, p. 1) constitute a violation of the nurse practice act. The Board of Nursing also reserves the right to revoke or deny the license of anyone who is convicted with criminal felonies related to sexual conduct i.e. rape, sexual abuse or sexual misconduct. In addition, if a nurse fails to report another nurse on sexual misconduct, she can be brought up to the Board of Nursing on charges of negligence and failure to report. The fines that can be imposed for each infarction range from $1000 to $5000 per charge.Do not be afraid to speak up if you see something wrong. Protect your patient at all times. Speak up!
- The ANA Code of Ethics requires a nurse who’s over-involved with a patient to step back and seek assistance from a supervisor (Wright, 2006). To avoid crossing professional boundaries in healthcare, nurses should focus on the challenges listed above as outlined by the National Council of State Boards of Nursing (p. 10). It is important to prevent professional and sexual misconduct and report offenders as soon as an incident occurs. To avoid malpractice claims and ensure patient safety, appropriate documentation that covers a description of the incident observed and any comments made by either party is essential.Patients trust nurses implicitly and are often in emotional vulnerable states. Taking advantage of the nurse-patient relationship for one’s personal gain violates not only the nurse practice act, but ethical and moral standards as well.