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Sexual Misconduct in the Professions
How Health Care Professionals Get in Trouble – or Don’t
by
Mark R. Brengelman, JD, MA
Attorney at Law
Frankfort, Kentucky

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About Mark R. Brengelman
• Holds Bachelor's and Master's Degrees in Philosophy from Emory University, Atlanta,
Georgia
• Earned a Juris Doctorate from the University of Kentucky College of Law, Lexington,
Kentucky
• Served out a successful twenty year career with state government in Kentucky,
including…. now in private practice since 2012
• Was a former Assistant Attorney General assigned to multiple state licensure boards
in health care and other professions – General Counsel and Prosecuting Attorney
• Has presented Continuing Education for over 50 national and state organizations and
private companies, including the Kentucky Office of the Attorney General, the
Kentucky Bar Association, the National Attorneys General Training and Research
Institute, and the Federation of Associations of Regulatory Boards and eight of its
member associations in psychology, physical therapy, dentistry, nursing, veterinary
medicine, emergency medical services, state licensed contractors, and athletic trainers
• Has represented all three branches of state government and now a local municipality
in governmental ethics and now a state licensure board

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Based upon the content of this program, you will be able effectively to identify:
• Identify the difference between law, ethics, and morals, and the defense of true love
• Examine the basics of the professional power dynamic between the health care professional and the patient
• Provide examples of state laws governing the current doctor-patient relationship
• Review examples of state laws governing applicable employer-employee, and supervisor-supervisee relationships
• Analyze a recent court case distinguishing how the laws apply to a current client vs. a former client consensual
relationship
• Discuss whether criminal penalties are the answer
• Detail a state licensure board case revoking the license of a health care professional for a consensual relationship
with a current patient of record, and
• Go over basic tips and techniques to defend yourself from liability
Sexual Misconduct in the Professions
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Disclaimer! Goals of the content of this program – what this does and does not cover:
• Does provide a broad overview of sexual misconduct in health care
• Does not cover everything about regulatory health laws, and uses only examples (mostly from Kentucky)
as applied to a specific health care profession, and
• Does educate the person attending to ask the right questions in their own state and profession about
compliance with their own governing regulatory health laws and possibly codes of ethics
Sexual Misconduct in the Professions
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The devastation of sexual misconduct:
“Having been sexually abused by a pastoral counselor has totally devastated me.... Those vital parts of me
(spiritual, physical, mental, emotional, social) all have to be rebuilt. One who is committed to Christ and his
teachings, and is at the same time trained in the science of the mind and emotions, is in the strongest possible
position to bring healing to those who hurt. It is terrifying to know that this unique position has been violated in
such a horrible way.”
-- Exploited by a pastoral counsel
“I changed from a confident, competent professional to a panic-stricken agoraphobic.... I developed eating
disorders, experienced terrifying nightmares, and became suicidally depressed. Ultimately, I had to leave my job,
and I required intensive psychiatric treatment three times a week for a period of several years.”
-- Exploited by a psychiatrist
from Nugent, C.D., Gill, J.P. & Plaut, S.M. (Eds.) (1996). Sexual exploitation: Strategies for prevention and
intervention Report of the Maryland Task Force to Study Health Professional Client Sexual Exploitation.
Baltimore, MD: Maryland Department of Health and Mental Hygiene
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The devastation of sexual misconduct, con’t.:
A male physical therapist places a hand on a female patient's breast during treatment.
A dentist hugs and kisses a patient on the lips as she leaves his office following treatment.
A psychologist tells his patient that she must become more comfortable with her body and her sexuality and
suggests that she masturbate on his office couch while he observes.
A psychiatrist "falls in love" with a war veteran she is treating for post traumatic stress disorder and has a sexual
relationship with him.
A gynecologist examines a patient and discusses her sexual history. She later agrees to his request for a date
and then a sexual relationship. The sexual relationship continues while she remains his patient.
from Nugent, C.D., Gill, J.P. & Plaut, S.M. (Eds.) (1996). Sexual exploitation: Strategies for prevention and
intervention Report of the Maryland Task Force to Study Health Professional Client Sexual Exploitation.
Baltimore, MD: Maryland Department of Health and Mental Hygiene
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Codes of ethics in mental health:
1. What then are professional codes of ethics?
• The American Association for Marriage and Family Therapy has a Code of Ethics effective July 1, 2012,
and;
• This is not binding under law, it’s a voluntary standard and guidance for persons who choose to join the
AAMFT as a member
• The American Counseling Association has a Code of Ethics effective 2005
• The National Board for Certified Counselors has a Code of Ethics effective March 1, 2013, and
• These are also not binding under law, these are voluntary standards and guidance for persons who
choose to join those organizations as a member
• Example: Elvis Presley Impersonators’ Code of Ethics
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Codes of ethics in mental health, con’t.:
2. What then are professional codes of ethics?
• These codes of ethics provide aspirational goals and duties as voluntary standards and guidance for
persons who choose to join those organizations
• But they may have the force of law, if and only if, they are specifically adopted into law your state
legislature or by an agency through an administrative regulation
• These are also used as guidance to establish the standard of care in a malpractice action for money
damages, and
• See “the principles of medical ethics of the American Medical Association” – the actual practice is to use a
national standard’s language in state law by administrative regulation
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Common elements of laws prohibiting sexual misconduct:
Prohibition on:
1) a) sexual contact without consent, and
b) sexual harassment (of the patient, of anyone under authority (student, supervisee), and employees or
co-workers)
2) a) same as in 1, above, and
b) prohibition on consensual sexual contact while the person is a patient (see lawyer rules)
3) a) same as in 1 and 2, above, and
b) prohibition on consensual sexual contact even after the person is a patient – either forever or for a
defined period of time (from when? discharge as a patient, last appointment, or last professional service for
the patient)
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Example of new laws – State of Washington from the Washington Administrative Code:
• Authorized by the Revised Code of Washington (laws passed by the House, the Senate, and signed by the
Governor to become law)
• Administrative regulation for multiple health professions provides that a “health care provider shall not engage,
or attempt to engage, in sexual misconduct with a current patient, client, or key party, inside or outside the
health care setting. Sexual misconduct shall constitute grounds for disciplinary action” (WAC 246-16-100(1)
• The rule then states sexual misconduct includes but is not limited to twenty-one acts, such as sexual
intercourse, kissing, and soliciting a date with a patient, client/key party (WAC 246-16-100(1)(a), (d) and (o))
• The rule addresses not just current patients/clients, but former patients/clients/key parties (WAC 246-16-100(4))
• Patient, client, or key party initiation or consent does not excuse or negate the health provider’s responsibility
(WAC 246-16-100(7))
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Some thoughts from the criminal courts – what about criminal prohibitions?
• Existence of criminal laws – what are some states doing?
• Examples of school teacher misconduct in the professions – criminal laws apply; frequency of state
discipline against public school teachers by the Educational Professions Standards Board
• How do criminal laws help or hinder the application of civil laws in the health professions?
• Opinion and recommendation: criminal laws on the book for sexual assault, etc. vs. criminal
prohibitions on the consensual doctor-patient sexual relationship in licensure laws
• Beware of the difficulties of “parallel proceedings” when more is at stake
• Could be a factor in malpractice as a per se malpractice violation; but…… malpractice insurance
exempts consensual sexual relationship cases
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Bonus content – the role of state licensure boards:
• Every state licensure board enforces similar laws applicable to their profession, as above
• Government function to protect for the benefit of the public “health, welfare, safety, and morals”
• Complaint (from third parties? by the next treating therapist?), investigation, prosecution and disciplinary
action against a professional license, and
• Many remedies – revoke, suspend, probate, reprimand, fine, and mandate payment by the therapist to the
patient for mental health treatment due from the sexual misconduct – an unusual role for restitution to the
complaining party/patient
• Beware the issue of “parallel proceedings” – i.e., being sued by the patient for money damages and
defending your professional license, or even while facing criminal charges
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Summary and tips for avoiding liability and risk:
• Every state licensure board enforces similar laws applicable to their profession
• For those who hold a dual credential, you will be held to the standard of each board, i.e., two (2) year vs.
five (5) year prohibition on sexual contact with a former client
• Review your own practice act and be familiar with updates and new standards – your profession reflects
evolving standards – including the criminalization of sexual conduct in the “doctor-patient” relationship, and
• Be aware of malpractice issues as sexual misconduct is usually excluded from coverage because that is
an intentional act, an intentional wrong not covered by malpractice insurance – insurance by its very
nature excludes intentional acts from coverage
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Did we cover it all?
• The basics of professional regulatory laws
• Examples of prohibited conduct and dual relationships
• Examples of prohibited sexual misconduct – who and what does it cover?
• Examples of prohibited sexual and romantic relationships
• An in-depth review of specific state licensure laws, and
• Analysis from the courts on sexual misconduct laws and prohibitions on romantic relationships
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Sexual Misconduct in the Professions