Say you live in Washington State, and you find yourself getting to know and becoming attracted to your dental hygienist — or for that matter your optician (that's the person who fits your eyeglasses, based on the prescription provided by your optometrist). You're interested in a romantic relationship, a sexual relationship, perhaps even marriage. You're both consenting adults, you think, right? You have a right to marry, and even a right to have sex (given Lawrence v. Texas).
The Washington authorities don't seem to think so. Let's see how some new Washington regulations treat this.
1. Under Washington Administrative Code 246-16-020, your dental hygienist and your optician are "health care providers." This means that, under Washington Administrative Code 246-16-100, they "shall not engage, or attempt to engage, in sexual misconduct with a current patient." Sexual misconduct "includes but is not limited to" sex, kissing, "[h]ugging ... of a romantic ... nature," "[s]uggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends," "[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship," or "[m]aking statements regarding the patient['s] ... body, appearance, sexual history, or sexual orientation other than for legitimate health care purposesamong many other things."
OK, you say, no problem; you should just switch to a different dental hygienist or optician, and then start dating. Perhaps banning optician-client relationships is going a bit far, but it's hardly a big burden on people's romantic, sexual, or marital choices.
2. No dice! Subsection (3) of the provision states that "A health care provider shall not engage, or attempt to engage" in any of these activities "with a former patient, client or key party within two years after the provider-patient/client relationship ends." Two years, not a short time. If you do want to date your former dental hygienist or optician, you can't even kiss them until two years after you leave their practice. Or, to be precise, you can kiss them, and they can kiss you back — if they are willing to risk professional discipline and possibly loss of their livelihood, a pretty serious burden.
3. But wait; maybe before you leave them and wait the two years, you ought to get a sense of whether they're even interested, no? Except that even if you ask whether they're potentially interested, their answer has to be:
I'm sorry, but I can't discuss the possibility of a relationship after the professional relationship ends.
Of course, this restriction does end two years after the professional relationship ends. So two years after switching dental hygienists or opticians, you can call up the person and say, "Hey, remember me, from two years ago? I only stopped coming to your office so that I could wait two years and then ask you out. So, are you interested?" At that point, they can start a relationship with you — or say, "oh, sorry you had to stay away for two years, but I don't think it would work out between us."
4. Actually, can they start a relationship with you, even two years later? Well, not if "(a) There is a significant likelihood that the patient ... will seek or require additional services from the health care provider; or (b) There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship." How should the hygienist or optician think this through? Let's skip item (a), though even that's troublesome enough (since if a relationship does develop, you might well ask your lover or spouse for some professional help, as lovers and spouses often do).
Instead, consider (b): Is there an imbalance of "power, influence, opportunity and/or special knowledge of the professional relationship"? It's hard to grasp what "special knowledge of the professional relationship" means, but if the question is whether there's an imbalance of "special knowledge," the answer would likely be "yes": All professionals, including dental hygienists and opticians, have special knowledge others don't have.
And what about "influence" or "opportunity"? Say the optician is a relatively well-paid small businessman, and you're poorer or less well-educated. The optician may well have more influence and opportunity than you do. He may not have nearly enough to threaten you or coerce you, but that's not the test; the question is just whether there's "an imbalance of ... influence [or] opportunity." Does an optician making a comfortable living have influence and opportunity that's "balance[d]" with that of, say, someone who's working as a waitress for minimum wage? Probably not. And if that's so, then that means the optician and waitress can'd date even after the two years have passed.
Of course, maybe the rule is meant to capture something less than all "imbalance of power, influence, opportunity and/or special knowledge." Perhaps eventually it will be interpreted more narrowly than it seems to be written. But in the meantime, the optician or hygienist who is contemplating whether to have the relationship with you risks losing his or her livelihood should he or she guess wrong about what the law means.
5. More: The rule applies not just to relationships with clients, but also with any "key party", which includes "immediate family members and others who would be reasonably expected to play a significant role in the health care decisions of the patient or client and includes, but is not limited to, the spouse, domestic partner, sibling, parent, child, guardian and person authorized to make health care decisions of the patient or client."
Say you're a single doctor; you get to know your patient; and through the patient, you get to know the patient's sister, whom you find yourself romantically interested in. Can you ask her out (either while you're seeing the patient, or for two years afterwards)?
Well, if "who would be reasonably expected" applies only to "others," and not to "immediate family members," then immediate family members are off-limits to you, period, no matter whether they play a role in the patient's health care decisions.
But say even that "key party" includes only those immediate family members who would be reasonably expected to play a significant role in the patient's health care decisions. And say that the patient's sister is herself a doctor or a nurse. The patient's sister would surely be "reasonably expected to play a significant role in the health care decisions of the patient" — people routinely rely on medically trained family members' advice in making health care decisions.
So no dice with the patient's sister. You can't marry her. You can't have sex with her. You can't ask her on a date. You can't even say she looks nice (that's "[m]aking statements regarding the ... key party's ... appearance"). You can't do this while you treat the patient. You can't do it for two years afterwards. You can't do it even two years afterwards, if "[t]here is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship" (between you and the patient, or you and the sister? who knows?). And of course you can't transfer the patient to another caregiver so that the two-year clock starts ticking, since that would be "[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship."
6. While we're at it, if you run into one of your patient's at a party or some other function, make sure you never say that the patient looks nice, since that's "[m]aking [a] statement[] regarding the ... key party's ... appearance."
7. And if you're the professional involved, don't just worry that these rules will apply to you only if the patient (or the other "key party" involved) complains. No matter how good your relationship with the person you're seeing, no matter how nonacrimonious any possible breakup, no matter how carefully you make sure that you only date people who won't want to jeopardize your career, someone else may file the complaint — say, a jealous ex of one of the people involved, which is what happened in this Minnesota case — and you may get disciplined even if the allegedly wronged party is entirely on your side (in fact, is now your loving spouse).
8. Of course I know that medical relationships offer room for various kinds of abuses. In some situations, it may be proper to interfere with people's right to marry, and their sexual and romantic autonomy, in order to prevent those abuses. We can talk about psychotherapist-client (or -ex-client) relationships, or relationships between doctors and current patients, or other circumstances where the risk of subtle coercion or unprofessional behavior is especially high (which is to say materially higher than the risk of subtle coercion and other harms in any sexual relationship).
But the trouble here is that the rules go vastly further than these special situations, and vastly undervalue the countervailing reasons to limit regulation — people's right to choose whom to date, have sex with, and marry, even including their dental hygienists, opticians, and the like. So much for the right to marry; so much for sexual autonomy; so much for consenting adults deciding whom to love, without the fear of losing their livelihood.
Related Posts (on one page):
- The Right to Marry, and the Right to Sexual Autonomy, in Washington State:
- More on Sex Between Professionals and Their Former Clients:
- Sex and the Massage Therapist:
This is yet another way that Washington State, which once had a sensibly conservative legal system, is now a paradigmatic Blue State. Truly political correctness run amok.
As for having a fixed ban rather than a case-by-case consideration of whether abuse of power has occurred in a particular case, that's just a classic rules versus standards situation, and it's legitimate to go with a rule over a standard for all the usual reasons (would have been legitimate to go the other way too), even if the scope of the rule in this case is excessive.
Do you really mean precisely this? A mere statute per se cannot lead to 'apparently not'. Citation indicating that this has been adjudicated with respect to Lawrence? Why wouldn't Lawrence be controlling?
Though I wouldn't mind if there was a law saying you can't hit on a waitress or bar tender - it would save me a lot of effort and embarrassment.
That is, many prosecutors/regulators (and a big chunk of the public) think that good criminal laws are those that result in the defendants being convicted 100% of the time, rather than escaping through "loopholes." Paraphrasing Ed Meese, if they weren't guilty, they wouldn't have been charged. In this view, the right place to put the power in the adjudicatory system is in prosecutorial discretion. Prosecutors are tough, and they're on "our" side, as contrasted with whimpy, ivory tower judges. I've noticed that this applies to regulators as well as prosecutors (and regulators have the added advantage of being "experts", as well as being the self-defined good guys).
All of this is a long-winded way of asking whether perhaps the regulatory authorities in practice choose not to go after a good many violations of these rules which come to their attention, if the relationships at issue meet with their approval. I'm not sure of how one would go about investigating this, though.
PS: In my practice I've done a little representation of professionals in front of licensing boards (medical-related). My impression is that it makes a *huge* difference whether one is in one of the privileged castes (for example, MDs and dentists) or one of the riff-raff (eg massage therapists). If you're golden, you can get away with a lot more before any formal regulatory action will be initiated against you.
Sorry, couldn't resist making this profoundly enlightening contribution. :)
In any case I think the truly pernicious thing about these overbroad laws is not that they forbid many things, if they would really practically forbid everything they name then they wouldn't be that dangerous. If they truly enforced a law like this in a literal fashion it would get overturned in under a year.
What is truly dangerous about laws like this is that they can end up being applied to whoever society deems as 'bad'. For instance in some jurisdictions you might expect it to be used disproportionatly against gays and lesbians. In this jurisdiction it would be other groups. In short by covering such an overbroad swath in theory it becomes a law against 'bad' relationships which is much more damaging in the long term.
Uh-huh-huh-huh.
Those damn liberals are everywhere.
I'd think that publicity of a suit to overturn the law brought by a spouse (or even a prospective spouse) would have much better resonance with the voting public than one bought by the regulated professional.
THose wishing to devalue doctors relative to other professions (insurance, managed providers) wanted to blur the relationship between doctors, others (What do you mean - the contract says you have access to a health care provider)
Others wanted to trade up, whether it was optometrists wanting to do optical injections and treat infections of the eye or whether it was your local maseuse (I'm a health care provider, too - it is discriminatory to not let me ... or to say that my treatments are not covered...)
Finally we have a legal world that is, by the confluence above, unable to distinguish any of these roles.
The first mistake was letting employers sit between patient and doctor. All else is details.
Houston dude, I'm not convinced that a fundamental right to marry = a fundamental right to gay marriage. If marriage is defined--as it has been for centuries--as a union between a man and a woman, then you can claim that you have the right to enter in to such a union so long as the state's compelling interests to not trump your right (i.e. incest, age limits, bigamy, etc.) Gay marriage, it seems, would be a separate question altogether.
Could then a male-female couple challenge this WA law under the male-female established right to marry? and, if it was overturned for opposite-sex couples under that argument, would a (currently hypothetical) WA constitutional ban on gay marriage "and the incidents thereof" barr overturning it in the case of couples that cannot get married and result on the law only applying to same-sex couples?
Is just a query on what would be the consistent application of the law in a case like this. I find this particular regulation pretty interest from that point of view (i.e. what results would come forth if we follow this path to the end). Please do not make it into a political debate of gay marrieage, pro or con
Thanks
As for interfering with the substantive due process right of marriage, of course it is an interference to some extent but not automatically invalid for that reason alone. There's an obvious state interest in preventing health care practitioners from exploiting the power they have over patients. One might argue that the ban is of excessive duration in this case, particularly given the relatively limited power that an optician or dental hygienist has over a patient (contrast, e.g. the case of a physician prescribing narcotics for the patient) so who knows, maybe a challenge just awaits the right set of facts.
It's hard to imagine these kinds of regulations prohibiting marriage rather than just a sexual relationship, but the former would generate a more interesting case.
And who voted for it? And who signed it into law?
Comments from all of the above should be solicited.
who podcasts her sexual exploits.
In any event, does that Washington law prevent dental hygienists, opticians, optometrists from cleaning the teeth, checking the eyes of their own spouses?
This MUST have come up in response to specific phenomina
resulting in excessive retaliation for SOMETHING.
Who sponsored it indeed? Who are the constituants
that inspired them to make such questionable use of their free time?
Due to the complexity, I smell group self-rightious indignation, or imposition of unrelated lifestyle choices.
In NH the recent turmoil was over a well respected doctor telling an obese client she was fat. Granted, he implied it in less than clinical terms.
Logicnazi, IANAL, but it sure sounds like that to me, and I can think of far worse cases than that. Commenting upon the patient's weight loss or gain? Better be looking at the scales, not the patient, while you say that, even though a famine victim look in someone with no history of anorexia is an indication of some serious disease. And the ER doctor who made a preliminary - and correct - diagnosis of gallstones just from my wife's yellowish face and the location of the acute pain might have come under that rule.
And of course, the great thing about over-inclusive rules like this - for those who prosecute violations, that is - is that making everyone a criminal gives the authorities the discretion to prosecute those they dislike, political enemies, and anyone who questions their authority in areas where legally they have no authority.
Isn't there an "Arney Becker" ethics rule in CA named after the L.A. Law divorce attorney who screwed all his female clients? My memory is that it is a bit more like this, with an absolute prohibition, versus the rule-of-reason that some/many states have. I don't practice in CA, and indeed, don't meet most of my clients anyway, except over the Internet, so am not up on this subject.
I couldn't help but recall Daniel Webster's:
These recordings should be archived, ever at ready access should misunderstandings about the interaction. They need to be accessible by HCP to allow discovery by patients (and their counsel) of patterns of abuse of the authority that comes with being a HCP. HCPs (and their counsel) will need to be able to access these archive by patient, to discover patterns of behavior, by the patient, that may put the HCP (and his license) at risk. Perhaps some simple, easily used, and well known format should be used for the archives.
Clearly, in the future, all Patient-HCP interactions must be conducted over the internet must be recorded, and all such recordings will be available as podcasts.
This is what happens when grand-standing legislators try to create general rules based on one egregious incident (we’ll never lat *that* happen again!) and when a society that shuns being “judgmental” demands that no one ever face opprobrium for anything that is not specifically illegal.
"There's an obvious state interest in preventing health care practitioners from exploiting the power they have over patients."
It is of course interesting to discuss the legal technicalities of the topic, but why not go back to the basics, rather than being simply reactive to a law/regulation already enacted?
Please explain to me, why there is an "obvious" state interest? Unless you subscribe to seemingly boundless state paternalism, adult citizens in a free society have to take responsibility for their situations. This includes those hard of learning. We have all learned from mistakes when we were taken advantage of. In hindsight we usually realise that this wouldn't have happened had we been more alert and used common sense. Minor citizens DO have parents, and it ain't quite yet the State, God forbid.
Sure, this particular ban is excessive, but why not do away with it altogether?
Government's laws have no common sense as becomes quite clear time and again when following the discussions on this site.
Furthermore, in my opinion, the positive effects of micromanaging rules are almost always far outweighed by the perils they pose to everybody's liberties.
PersonFromPorlock is quite correct in citing Webster:
"There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters."
PDXLawyer touches on another very important angle when pointing out the role prosecutorial discretion plays. Why have we been so willing to put our entire lives in the hands of a few people who have succeeded to protect themselves from scrutiny and oversight to such an extent? See Nifong for an extreme example. I have known a few prosecutors and universally they are the type of self-centered individuals who are willing and able to promote themselves in a political campaign requiring not thoughtful reflection and deliberate action, but pandering to the media inflamed passions of politics.
In the meantime, I wish the invocation of "compelling State interest" were questioned more and used as restrictively as befits a Democracy.
"There's an obvious state interest in preventing health care practitioners from exploiting the power they have over patients."
Please explain to me, why there is an "obvious" state interest? Unless you subscribe to seemingly boundless state paternalism, adult citizens in a free society have to take responsibility for their situations.
I didn't say that the ban was necessarily a good idea. By saying there was an obvious state interest I was saying merely that, should the state choose to enact such a regulation, there's an obvious rationale for doing so. Put another way, the regulation may be a bad idea, but it isn't arbitrary.
And as for adult citizens taking responsibility for their situations, I'm all for that as a general principle. However, to use my prior example of a psychiatrist prescribing narcotics for a patient, if that psychiatrist says to the patient "have sex with me and I'll keep prescribing the narcotics for you" it's not an obvious slam dunk conclusion that the only proper legal approach for the state to take to deal with this type of situation is to provide a common law tort remedy.
I submit that we, as a society, have elvated especially matters sexual to such a level that darn near every stupid idea flies through enactment, the stricter the better. This leads, as I am sure Prof. Volokh intended to show with his post, to ridiculous levels of intrusion into our private lives and results in intolerable levels of guardianship by state bureaucracies.
The aim of my previous comment was to go back to the basics: The State may well claim the legal right to enact all sorts of rules, but this claim should be challenged, narrowly granted and frequently rejected. This requires for all of us to stop finding and relying on all sorts of "obvious" rationales why we need laws to protect us from each other. It's getting out of hand. It is simply providing more and more tools to whip us all into line.
In its effect on me as a mere citizen, a bad regulation is the same as an arbitrary regulation.
In such statutes, State powers run amok. But human nature is not amenable to PCBS masquerading as legitimate concern. Useful to remind these benighted legislaries [my term] that politicians in general, and themselves in particular, do nothing except on behalf of contributing constituencies. Stuff of this nature goes only so far... meantime, anyone who has a life to live will most certainly go his way rejoicing.
If you insist on a professional regulation example, how about police officers? Which is more an abuse of power, a doctor asking a patient out on a date, or a cop asking out a woman he's pulled over? Cops have a lot more power over people than doctors.
Keeping with the civil service theme, can a firefighter hit on a woman after putting out a small fire in her apartment? What about building inspectors? Members of the planning commision?
[Sorry if this is a duplicate, but from here it looks like my previous post got eaten.]
One in particular here in Seattle was a doctor had totally consensual (and supposedly appreciated) sex with a patient who he had dated in the past IN the exam room and his physician assistant complained. Consensual sex in a private area with someone ythey've had sex with before the doctor/patient relationship existed - you might want it to be 'wrong' but how do you define laws so it is?
I suspect their focus was on the 'bad' aspects of these kinds of interactions and tried to make it so people couldn't get 'off' on a loophole but lost sight of all it would also curtails.
Oh man, please don't give Minneapolis city officials any ideas.
I wasn't referring to a situation in which the psychiatrist administers narcotics in order to render the patient unable to resist a sexual assault. I'm referring to the situation in which the narcotics are legitimately prescribed for something, and the psychiatrist uses the threat of "turning off the tap" of prescriptions in order to coerce the patient into a sexual relationship.
The regulation in the article applied to opticians and dental hygienists as I recall. I was just making the point that for some health care professionals, there really is a huge power imbalance in the patient relationship so that a state might be legitimately concerned that that relationship may be abused.
You are correct, of course. I'm afraid I read it, but it didn't register.
However, under your scenario, my other point kicks in: If she is a drug addict and taken advantage of, the psychiatrist is definitely guilty of a grave indiscretion, but does it follow that the victim's indiscretion (her addiction) "obviously" requires comprehensive State regulation which then applies to every honest psychiatrist as well and is intrusive and rights-abridging to boot?
Pyrthroes, as to who is hitting on who, any survey (and indeed, any woman) will tell you that it is the guys hitting on the girls, and not taking no for an answer. Of course you may have forgotten to set your snark flag.
What's next?
Whether it is an accusation that they were petrified when their husband raised his voice (and therefore they get an ex parte TRO and he goes to feminist political reeducation classes), or a claim that their tooth cleaner dude freaked them out when he said they were cute.
They are entitled to make whatever allegations they want and they are entitled to be believed. And they ARE believed. And no, Eugene, you will never get a jury or a licensing agency to punish that cute little 22 year old dental hygienist chick for coming on to you. It is clearly just another Evil White Male Act. Girls against the Boys. So when do y'all want to talk about the elephant in the living room?
It's not obvious, one way or the other, as you've just got a classic rules versus standards problem on your hands. You could, for example, abolish the rule and allow all relationships between doctors and their patients except where the relationship constitutes a "grave indiscretion." It's not obvious that doctors and patients are better off in this scenario. A clear two year rule prohibits some relationships that ought not to be prohibited, but at least you know where you stand, rather than having to rely on someone else's after-the-fact adjudication of whether your relationship constituted a "grave indiscretion."
Yes, rather like laws prohibiting homosexuality. :-)
I can actually see the reasons for such a prohibition. The vast majority of situations where a dental hygenist hits on a patient will be consensual and non-abusive, but there will be situations where the power imbalance will create a problem, and the government of Washington clearly thinks it needs to do something. Maybe it does, maybe it doesn't. But I notice that Cornellian is prepared to defend this form of regulatory overreach, while the situation with respect to homosexuality is, of course, very different. :-)
Telling someone they have an effective pool of zero potential candidates for intimate contact because they are gay would be blanket proscription, not mere regulation. Surely you can see the difference?