Eugene Volokh loses his shit over some Washington State regulations barring healthcare providers from imposing on patients for romantic or sexual relationships:

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. . . .

[T]he optician and waitress can’t date even after the two years have passed. . . .

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 . . .

No matter how good your relationship with the person you’re seeing [. . .] someone else may file the complaint . . .

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.

I think Volokh is partly misunderstanding the statute, and partly slanting his argument toward the most extreme of its provisions. He shows almost no concern for the problems the statute was intended to address, and launches himself on a barbarians-at-the-gates rant over fairly manageable concerns. But even if we do not blithely sweep away centuries of providers’ abuse of vulnerable patients in the face of Volokh’s anguish over the right of patients to date their dental hygienists, there are some real issues raised here.

The key statutory provisions include:

WAC 246-16-100

Sexual misconduct.

(1) 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. Sexual misconduct includes but is not limited to:

     (a) Sexual intercourse;

     (b) Touching the breasts, genitals, anus or any sexualized body part except as consistent with accepted community standards of practice for examination, diagnosis and treatment and within the health care practitioner’s scope of practice;

     (c) Rubbing against a patient or client or key party for sexual gratification;

     (d) Kissing;

     (e) Hugging, touching, fondling or caressing of a romantic or sexual nature;

     (f) Examination of or touching genitals without using gloves;

     (g) Not allowing a patient or client privacy to dress or undress except as may be necessary in emergencies or custodial situations;

     (h) Not providing the patient or client a gown or draping except as may be necessary in emergencies;

     (i) Dressing or undressing in the presence of the patient, client or key party;

     (j) Removing patient or client’s clothing or gown or draping without consent, emergent medical necessity or being in a custodial setting;

     (k) Encouraging masturbation or other sex act in the presence of the health care provider;

     (l) Masturbation or other sex act by the health care provider in the presence of the patient, client or key party;

     (m) Suggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends;

     (n) Terminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship;

     (o) Soliciting a date with a patient, client or key party;

     (p) Discussing the sexual history, preferences or fantasies of the health care provider;

     (q) Any behavior, gestures, or expressions that may reasonably be interpreted as seductive or sexual;

     (r) Making statements regarding the patient, client or key party’s body, appearance, sexual history, or sexual orientation other than for legitimate health care purposes;

     (s) Sexually demeaning behavior including any verbal or physical contact which may reasonably be interpreted as demeaning, humiliating, embarrassing, threatening or harming a patient, client or key party;

     (t) Photographing or filming the body or any body part or pose of a patient, client, or key party, other than for legitimate health care purposes; and

     (u) Showing a patient, client or key party sexually explicit photographs, other than for legitimate health care purposes. 

(2) A health care provider shall not:

     (a) Offer to provide health care services in exchange for sexual favors;

     (b) Use health care information to contact the patient, client or key party for the purpose of engaging in sexual misconduct;

     (c) Use health care information or access to health care information to meet or attempt to meet the health care provider’s sexual needs. 

(3) A health care provider shall not engage, or attempt to engage, in the activities listed in subsection (1) of this section with a former patient, client or key party within two years after the provider-patient/client relationship ends.

(4) After the two-year period of time described in subsection (3) of this section, a health care provider shall not engage, or attempt to engage, in the activities listed in subsection (1) of this section if:

     (a) There is a significant likelihood that the patient, client or key party 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.

Those with skill and knowledge in the art will recognize some of these provisions and the reasons for them. The explicit and comprehensive prohibition, and the two-year ban on post-therapy relationships, are lifted from rules grudgingly adopted by the American Psychiatric Association, and soon thereafter by the AMA and other worldwide healthcare boards. (A good discussion of the issue is here.) The impetus for such rules was the widespread abuse of patients by psychotherapists especially; though sexual misconduct has been found in all professions, the nature of the psycho-therapeutic relationship, the inherently sexual content of many psychological problems and treatment sessions, and the just-plain-weirdness of many psychotherapists, made it unusually common in that field. (The prohibitions on undressing or masturbating in front of a patient, and describing your own sexual fantasies to patients, are not there by accident.) Worse, when sexual relationships between psychotherapists and their clients were first identified as a problem, there was a widespread defensive reaction among therapists, denying that the problem existed, complaining about the intrusion into their - yes - sexual autonomy and right to love, insisting that their sexual relationships with their patients were not abusive, and in many cases claiming that they were even part of therapy (while engaging in the misconduct during their patient’s scheduled clinical sessions and billing the patients for the “service”!).

Comprehensive bans on sexual relationships, and correspondingly rigid prohibitions on such evasions as abandoning the patient’s therapy in order to sleep with them, or starting to sleep with them immediately after they were “cured”, were eventually recognized as the only way to keep therapists honest and prevent them from exploiting loopholes in the regulations. Appealing to therapists’ sense of professionalism had been tried - the results were disastrous; strict rules and few or no exceptions became the order of the day. And those rules were adopted by other professions as well, and for similar reasons. 

The problem is not trivial. Linda Jorgenson and Pamela K. Sutherland produced an brief review of the general topic of breaches of fiduciary duty, including sexual misconduct. and discussion of its legal implications. They note:

Up to thirteen percent of the respondents [to a 1973 survey of psychiatrists, obstetrician/gynecologists, surgeons, internists and general practitioners] reported that they had engaged in erotic behavior with patients, ranging from sexual intercourse (7.2%) to kissing.

A spate of studies followed, notably by Holroyd & Brodsky,Gartrell and others,and Pope and others. Holroyd & Brodsky and Pope documented the incidence of sexual contact among psychologists while Gartrell focused on the psychiatrist-patient relationship. Pope concentrated on the harm that was caused by psychologists’ sexual involvement with patients. Feldman-Summers and Jones surveyed psychologists to determine the effects of sexualized contact by therapists and other health care providers on their patients.Patients who had engaged in sexual contact with their health care provider suffered from “mistrust of and anger toward men” and had significantly more symptoms after termination of treatment. Other effects of the sexual contact included anger, shame, humiliation, depression, and anxiety. Feldman-Summers and Jones found that injuries caused patients by providers’ sexual contact did not differ significantly between therapists and other health care providers: the damage resulting from breach of trust that occurs in either situation manifests itself in similar ways.

[references omitted]

That last point is vital: all healthcare providers, broadly defined, stand in a fiduciary position with regard to patients, even if that relationship does not include professional-level therapeutic practice. The requirements of respect, non-judgmental therapy, confidentiality, non-maleficence, and so forth arise from important principles of medical ethics, and they serve to protect patients from harms that may accrue whenever those obligations are breached, no matter who is responsible. It is bad - and very possibly just as bad - to have your confidentiality breached through the release of your medical records by your psychotherapist as it is through your therapist’s office clerk. (Then again, it is often worse when the violation takes place on the part of a professional whom you personally have invested with your trust, as opposed to a lower-level functionary with whom you have only an impersonal relationship.) This is the reason that the non-contact rules have spread through the professions, and obviously the reason they have been expanded to include non-professional ancillaries such as dental hygienists and massage therapists. The rules are inflexible because the professions themselves have demonstrated that leaving room for their judgment does not adequately solve the problem.

Volokh not only does not acknowledge, other than perfunctorily, at the very end, the dangers these regulations are intended to address, but he also does not seem to recognize their origin, the history of such prohibitions, and the reason for their rigid form. Given that history, and both the content and form of the healthcare code, it is obvious how such sweeping regulation of sex came to be imposed on nutritionists, recreational therapists, and X-ray technicians, as well as doctors and psychologists. The Administrative Code defines certain professions and fields requiring state certification; other sections of the code make reference to the definitional section to impose their regulations and requirements on the entire body of healthcare professions and providers. This is generally reasonable: every such field labors under the same obligation of confidentiality, of patient-centered service, of non-self-interestedness, and so forth. And it is reasonable that they all should refrain from sexual abuse of patients as well. Volokh implicitly admits this when he says:

Of course 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 relationships between psychotherapists and clients (or ex-clients), or relationships between doctors and current patients, or other circumstances in which 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 . . .

He seems to be saying that regulations such as the above are reasonable where the potential for abuse exists; he simply thinks that the range of circumstances and professional relationships in which that potential does exist constitute merely “special situations”, apparently rare ones. The history of this subject suggests otherwise, in ways and to a degree I think Volokh underestimates.

Volokh does not suggest a particular solution, but from the remark quoted just above he seems to think that the prohibition should apply to only a limited set of professions, and those with less-authoritative relationships with patients should be exempt from the sexual-contact ban. Again, this partly rests on an estimation of the actual extent of the problem, and is thus objectionable to the extent that estimation is faulty, but it also invokes a distinct regulatory environment for sexual exploitation, different from that of other professional obligations such as confidentiality - and that seems even more questionable. Under Volokh’s (implicit) regulatory scheme, all workers even peripherally connected with healthcare are under strict obligations of confidentiality, licensure, non-conflict-of-interest, and other such provisions, but only some of them would be prohibited from taking advantage of patients’ weaknesses for sex. (In fact, they would apparently not even have obligations of confidentiality or non-conflict, in the case of sex alone, but presumably would have in all other circumstances: the statute he objects to prohibits use of confidential information and manipulation of the treatment relationship in pursuit of a sexual relationship, and these provisions, as well as the others, would be void by Volokh’s exemption for certain fields. Unless the confidentiality provisions of the various regulatory statutes are redundant, your dental technician could be de-licensed for getting your phone number from your private medical records in order to try to sell you a time-share membership, but would be perfectly free to disrobe in front of you, masturbate, describe their sexual fantasies about you, and then use your private contact information to mail you pictures of their genitals, under the Swiss-cheese regulatory scheme Volokh apparently favors.) He does not recommend a case-by-case analysis for each regulation as it applies to each type of provider - he objects only in the case of sexual abuse. Arguably, regulation of sexual relations is a grave intrusion by the state upon individual liberty, but violation of providers’ obligations to patients by way of inappropriate sexual relations is an even graver harm. Volokh’s sexual exceptionalism would make that the only such harm the state does not regulate across the board.

It seems to me there are good reasons, both substantive and procedural, for the state to have proceeded as it did: first, the dangers of abuse of this type are too real, and if it seems unlikely that nutritionists or dental technicians are in a position to play Svengali to sexually suggestible patients, there is still no reason to let them try; as for procedural reasons, it is simply easier, and no doubt more effective, to regulate healthcare professions equally, especially in the areas of healthcare ethics and provider obligations to patients, than to admit the suggestion that those obligations do not apply in some cases. Finally, there is the overlooked question of professional roles: Volokh’s objections are grounded on his perception that the danger of abuse is low in some healthcare settings, particularly involving skilled technicians rather than authoritative professionals, and thus that regulation in those settings is unnecessary because, essentially, nothing bad can happen if, say, your dental hygienist asks you out for a date (whereas it would be shocking if your doctor did so). But, while healthcare ethics has a highly utilitarian motivation, one traditional aspect of it is the definition of the general roles and obligations of providers - how providers are supposed to live their professional ives, and how they are supposed to approach patients and healing. From this perspective, there may be good reasons to expect providers to refrain from viewing patients as potential booty calls, whether or not such an encounter is overtly harmful in the particular instance. And if this raises the bar of professional expectations - even extending them to healthcare vocations that are not regarded as “professions” - that may be no bad thing. Volokh’s objections - centered on the individuals involved and not on the larger context in which they act, or the need to maintain the internal standards of the professions generally, ignores this issue.

All in all, I don’t think it’s too much of a burden on healthcare providers to ask them to find dates elsewhere than their patient list. (We prohibit military personnel from dating almost anyone in the uniformed services [all “other ranks”, and anyone in one’s own chain of command], and nobody objects to that prohibition.) Medical ethics, at least for the licensed professions, has been seen as imposing highly stringent behavioral constraints, and I don’t think that’s unreasonable. The real question here is not whether licenses professionals should be held to such standards - even Volokh does not object to that, apparently - but whether those standards should be extended to encompass non-licensed ancillary technical fields. The reasons for extending them, as I have noted, are partly procedural, but I suspect partly also a perception that anyone in a patient-care field has similar obligations and ought to live up to them. That seems reasonable to me, even if the marginal benefit of bringing hygienists and technicians under this cloak are minimal.