Ethics Rounds

Recently I shared with a group of learned colleagues that an invitation I had received was causing me some significant anxiety. The invitation was to speak at the New York Academy of Medicine on a panel convened by the Association for Psychoanalytic Medicine, on the topic of sexual boundary violations in psychoanalytic practice. A colleague captured the totality of what I felt I had to offer the audience: "Don't do it!" Desperate for more than three words to fill my allotted time on the panel, I pressed my colleagues to discuss the reasons why we prohibit sexual involvements.

As a discipline, ethics involves more than establishing rules: Central to the enterprise is setting forth our reasons. In class and committee discussions, the phrase "That's obvious" or some equivalent invites undisciplined thinking, because such phrases so easily help us avoid the challenging work of putting our reasons into clear words. I was therefore grateful for my colleagues' willingness to explore the reasons behind one of our most fundamental and apparently straightforward ethical standards:

10.05 Sexual Intimacies With Current Therapy Clients/Patients

Psychologists do not engage in sexual intimacies with current therapy clients/patients.

An anecdote shared by a close friend in a psychoanalytic institute helps capture the clinical dilemma underpinning the ethical analysis. My friend's institute was sponsoring a workshop on ethics. By virtue of recent incidents, the topic of sexual involvements came up. During a workshop discussion an analyst remarked that he would never be at risk for a sexual involvement. My friend's immediate response was that everyone is at such risk; believing one is not at risk is, in and of itself, a risk factor. As my friend listened more closely, however, he concluded that this individual was indeed correct in his assessment. The individual would never cross a boundary because he would never allow himself to get close enough to a patient for a boundary crossing to occur.

The anecdote is telling because it captures a dynamic central to the dilemma: The qualities that bring a therapy or an analysis to life may be the very qualities that bring us toward an edge, the crossing of which can be hugely harmful. The first principle in our Ethics Code, Beneficence and Nonmaleficence--Do Good and Do No Harm--captures this dilemma. We strive not only to avoid harm, but to do good as well. To the extent that we restrict the range of what we allow ourselves to feel in a treatment, we may limit our capacity to do good. From an ethical perspective, we foster the conditions that allow us to do good, but remain aware of how those very same conditions can lead to harm.

Considering the prohibition

As the discussion amongst me and my colleagues about Ethical Standard 10.05 unfolded, several reasons we proposed to explain the absolute prohibition against sexual involvements fell short in some significant respect, even though each captured something important and true. The argument that a power differential makes an involvement unethical seemed weak, because many relationships (many marriages and partnerships, for example) contain significant differences in power and influence. Such differentials, in and of themselves, do not make a relationship unethical. That a sexual involvement fails to put the patient's best interest ahead of our own also seemed untenable as an independent and sufficient reason to explain the absolute prohibition, insofar as we put our interests ahead of our patients in many ways. The fees we charge, the times we agree to see patients, scheduling vacations and cancelling an appointment for an emergency are all appropriate ways in which we may put our needs ahead of our patients'. A third argument proposed was that sexual involvements place patients at great risk of harm. Again, while true, the argument seemed not to carry the day. Many interventions, such as surgery, carry significant risks. The issue is not one of risk, but of risks in relation to likely benefits. Finally, the argument was put forth that sexual involvements with patients are always harmful. This argument was seen as compelling but complicated, insofar as the prohibition would rest entirely on an empirical claim about specific cases. Licensing boards and ethics committees--unlike courts in a malpractice action--do not need to find harm in order to find a violation, and thereby "de-link" the ethical and the empirical in relation to specific cases. Such "de-linkage" allows a committee or board to find a violation apart from finding harm and thereby provides considerably greater discretion in finding a violation. As the discussion continued, it seemed clear that such discretion was an essential and valuable feature of the ways boards and committees work, and that an absolute prohibition should not depend upon finding harm in every specific case.

Three reasons did seem independent and sufficient as ethical grounds for an absolute prohibition against sexual involvements with patients. First, a sexual involvement makes the work of psychotherapy or analysis impossible. You cannot conduct a psychotherapy or analyze a patient with whom you're having, or have had, a sexual involvement--the method you use to help the patient has been neutralized. A sexual involvement is unethical because you can no longer exercise beneficence in the professional relationship.

Second, there is no legitimate claim for a psychologist to derive this kind of gratification (sexual gratification) from this kind of relationship (a psychotherapeutic or psychoanalytic relationship), and the very nature of the gratification places the patient at risk of substantial harm. In other words, it is unethical to place a patient at risk when that risk is created by a gratification that the psychologist has no legitimate claim to deriving from the relationship.

Third, the relationship between a psychologist and a patient is a fiduciaryrelationship. In a fiduciary relationship, there is an overarching ethical obligation not to derive illegitimate forms of satisfaction that place the patient at risk of harm. A sexual involvement violates the fiduciary nature of the relationship and is therefore unethical. These three arguments appear to stand on their own as independent and sufficient reasons for why sexual involvements with patients are always unethical.

Ethics committees' roles

The question of how an ethics committee should respond to a sexual involvement is complicated and inevitably depends on the individual case. While licensing boards focus on protecting the public and courts examine whether the elements of a legal claim have been met, ethics committees strike me as having a somewhat different role: to bring their profession's ways of thinking to bear on the situation. Our training as psychologists serving on an ethics committee counsels us to remain mindful of all the parts of what can be complex situations. That means keeping in mind the interests and needs of the patient, who may have suffered a significant harm, as well as those of the psychologist, who may be a predator at one extreme or, at the other, a psychologist in the midst of a life crisis who engages in behavior that he or she never would have in other life circumstances. Committees may also have to consider the interests and needs of a training site, insofar as sexual involvements can have a profound effect on students and supervisees who learn of the involvement. Sexual involvements can also profoundly affect other patients and the public's perception of and confidence in what psychotherapy and psychoanalysis are about. Ethics committees are well aware that the impact of sexual involvements is never confined solely to the psychologist and the patient.

An ethics committee neither can nor should weigh all the interests and needs the same, nor give all the interests and needs equal priority. Yet unlike other bodies, the members of an ethics committee have as part of their professional background and training the skills to keep all of these interests in mind as the committee fashions a response. And with that enormous challenge, ethics committees, above all, need to be wise.

Further Reading

Send questions, comments or suggestions regarding "Ethics Rounds"--or submit vignettes (without identifying information) for column discussion--via email. "Ethics Rounds" welcomes your involvement and will confer with authors before publishing letters to discuss any confidentiality concerns.

Previous "Ethics Rounds" columns can be found at the APA Ethics page in the "From the Director" section.