(Check out the article published in PTinMotion, February 2018 edition based on this blog post: “Avoiding Charges of Sexual Misconduct“)

The recent social media campaign #metoo has brought to light the staggering number of women and men who have been victims of sexual harassment, assault, and battery. Women and men have been using the #metoo hashtag on facebook and twitter to show that they have been victims of sexual harassment or to show solidarity with victims (most of the posts on facebook that I’ve seen have been speaking out as victims). One recent CNN article estimates that 1.7 million people from 85 countries have used the #metoo hashtag in the last few weeks!¹ Unfortunately, this speaks to the widespread prevalence of sexual harassment and abuse in our society.

As a physical therapy student currently participating in patient care in a hospital setting, I am acutely aware of the need for ways to prevent this type of misconduct in health care. Within the health care professions, it is crucial that our interactions with patients serve to promote their health and not compromise it or put them in jeopardy of unwanted contact/conduct such as sexual harassment. As one of the most commonly acknowledged ethical principles in medicine says, “First do no harm” (from the Latin, “Primum non nocere”). This is especially important because patients who seek health care treatment are often put in vulnerable positions due to the type of information that they seek or the state of their health at the time they are being evaluated and treated. As physical therapists in the acute care setting, we work with especially vulnerable patients: patients are clothed in hospital gowns, often on medications that compromise their full cognitive ability or awareness, and are often lacking control of bowel and bladder functions or at the very least need help moving to/from the bathroom or bedside toilet.

Just as in the workplace with the employee-employer relationship, there is a skewed balance of power in the patient-physical therapist (or insert: doctor, nurse, psychologist etc.) relationship. This inequity creates a situation where there is increased potential for harassment or abuse of power. When discussing these matters, I think it is helpful to have some basic legal definitions in mind:

Legal Definitions

Sexual Harassment: any unwanted verbal or physical “conduct of a sexual nature”²

Assault (aka “attempted battery”): “a threat or physical act that creates a reasonable apprehension of imminent harmful or offensive contact”³

Battery: “a physical act that results in that harmful or offensive contact”³

Physical therapy treatment sessions often include some component of physical contact between therapist and patient and thus if a patient feels this contact is inappropriate, legally you could be charged with battery! Even if a patient feel threatened, this legally could constitute assault! If those terms don’t perk your interest or awareness to the issue of sexual harassment and the serious nature of this issue, I don’t know what will. Indeed, The American Physical Therapy Association (APTA) addresses this issue directly in the APTA code of ethics, which among other things promotes integrity in relationships between physical therapists and patients. The APTA code of ethics directly states, “Physical therapists shall not harass anyone verbally, physically, emotionally, or sexually.”⁴

(*Note: I will use the broad term sexual harassment through the rest of this post for simplicity’s sake.)

So, how can we as physical therapists deliver quality patient care in a culture in which sexual harassment is so prevalent and also one in which the threat of litigation is a constant concern? One of the easiest ways to promote ethical care is to use the process of informed consent in our communication with patients. Informed consent is the process of explaining the intent, benefits, and risks of a proposed evaluation or treatment technique and eliciting patient understanding and agreement with that proposed technique.^5,6 The patient should have the opportunity to ask questions and accept or refuse treatment. Informed consent serves as a standardized way to promote the patient’s autonomy (freedom of choice) and communicate medical information in a way that promotes beneficence and avoids harm.^6,7

Part of the process of informed consent, and primarily the responsibility of the health care professional is assessing patient understanding and cognitive fitness for understanding and agreement.^6,7 In a recent review article, Fields and Calvert propose certain procedures for assessing cognitive competence and using informed consent practices with cognitively impaired patients including alternative consent procedures such as utilizing advanced directives or legal proxies as designated with the patient’s Medical Power of Attorney (MPOA). ⁷

Cognitive impairment may be from a known medical diagnosis (i.e., Alzheimer’s disease/dementia, brain injury) or it may be more transitory (i.e., due to infection or medication effects); but it is clear that cognitive capacity falls along a continuum and may experience rapid change.⁷ Thus, the health care professional has a responsibility to continuously assess cognitive fitness in all patients, no matter the medical diagnosis or setting.

Here is a simple three step process of gaining informed consent in a cognitively competent adult : “What”, “Why”, and “Is that okay”.

1-“What”: Explain what you are planning to do

2-“Why”: Explain why you feel this action is medically necessary/beneficial

3-“Is that okay?”: Ask for consent/understanding

As a physical therapist a verbal communication to obtain consent may sound like this:

Out Patient Physical Therapy Setting

(Example: patient comes in complaining of hip and/or low back pain):

What: “I am going to feel along your hip bones and low back”

Why: “This will help me assess how your bones are aligned with one another and it will help me feel joint motion if I push on different areas. This information helps me to understand the problem you are having and to offer you better treatment options”

Is that okay? “Do you understand the purpose of this? Is it okay if I do that?”

In Patient Physical Therapy Setting

(Example: patient has just had hip replacement surgery):

What & Why: “I would like to see your incision along the side of your hip and buttocks to make sure that it is healing appropriately and that there are no signs of infection”

Is that okay? “Do you understand the purpose of this? Is it okay if I do that?”

Following this dialogue, it is important to document patient understanding and agreement to treatment.

Another important practice is to have another person in the room while you are delivering healthcare services that have the potential of being misconstrued or are necessarily going to be violating a patient’s privacy to a greater extent. Surgeon Atul Gawande, in his book, “Better: A Surgeon’s Notes on Performance,” describes his father (also a doctor), who would have an accompanying nurse or staff member present in the room during ANY type of exam on a female patient!

The physical therapy profession has an obligation and unique opportunity to promote integrity and trust within the health care setting. In order to act in the best interests of our patients, uphold the APTA’s standard of ethical conduct, and protect ourselves from litigation, it is important to utilize this process of informed consent with all patients. Physical therapists may also wish to use third party witnesses in certain situations. These practices can only serve to improve patient care and elevate our reputations as responsible health care professionals. The recent media explosion of the #metoo campaign has served to increase my awareness of the issue of sexual harassment and abuse. My response as part of the healthcare community will be to diligently use the informed consent process with each of my patients.

References:

1. http://www.cnn.com/2017/10/30/health/metoo-legacy/index.html
2. https://www.eeoc.gov/eeoc/publications/fs-sex.cfm
3. https://www.law.cornell.edu/wex/assault_and_battery
4. http://www.apta.org/Ethics/Core/
5. http://www.wcpt.org/policy/ps-consent
6. Purtilo RB. Applying the principles of informed consent to patient care. Legal and ethical considerations for physical therapy. Physical Therapy. 1984 Jun;64(6):934-7.
7. Fields LM, Calvert JD. Informed consent procedures with cognitively impaired patients: A review of ethics and best practices: Informed consent review. Psychiatry and Clinical Neurosciences. 2015;69(8):462-471.