Indecencies committed by care providers

"We are a healthcare institution. We employ staff in many fields, including doctors, nurses, secretaries and support staff. Within the institution we have rules about dealing with unwanted intimacy. We also have a protocol forbidding employees from having a sexual relationship with a patient. We know that such relationships are against our ethical code of conduct. However, we would also like to know what the legal basis is for such prohibitions, what consequences we are allowed to attach to any breach and where the legal boundaries lie."

Your institution is absolutely right in identifying that entry into a sexual relationship with a patient is unethical. What not everyone realises is that such behaviour has been a criminal offence since 1886. Paragraph 1 of Article 249 of the Dutch Penal Code provides that: “A person who commits indecencies with his minor child, stepchild or foster-child, his ward, or with a minor, a minor servant or subordinate entrusted to his care, instruction or supervision, is liable to a term of imprisonment of not more than six years or a fine of the fourth category”. In the course of time, a provision was added to clarify this stating that a public servant who commits indecencies “with a person submitted to his authority or entrusted or commended to his supervision” and any director, doctor, teacher, public servant, supervisor or employee “in a prison, State institution for the care and protection of children, orphanage, hospital or a charitable institution, who commits indecencies with a person admitted to such institution” is liable to the same punishment. In 1991 a further addition was made stating that this punishment also applies to “a person employed in the health care or social care sector, who commits indecencies with a person who has entrusted himself to his care or assistance as a patient or client”.

Indecencies

The word “indecencies” was deliberately chosen instead of the term “sexual acts” due to the specific overtones of the latter. The chosen term is intended to refer to actions of a sexual nature that are contrary to social and ethical standards. The intention was to establish an absolute prohibition on indecent acts between care providers and patients or clients. However, the legislation does not intend this offence to apply to a care provider who undertakes the treatment of his wife or girlfriend.

Dependence

The Dutch Supreme Court attempted to capture those social and ethical standards in an accurate definition in a decision in 1997. The general practitioner suspected of abuse claimed that his patient did not resist the sexual acts but joined in voluntarily. However, according to the Supreme Court’s definition, one can only say that no indecencies have been committed if the nature of the relationship as a care provider does not play any role in the sexual acts “in the sense that the patient or client acted voluntarily and was not influenced by any form of dependence, such as generally exists to a greater or lesser extent in such a functional relationship”. In other words, the relationship of dependence that is generally a key feature of the relationship between care provider and patient or client must not have played any role. So the fact that the patient or client voluntarily agreed to the sexual acts of the care provider is not sufficient. In short, the relationship between the care provider and the patient or client will involve committing indecencies unless the criteria that the sexual acts were completely voluntary and took place in complete independence are satisfied.

Prevention

The courts are very clear about the degree of voluntary action and independence required. It is not the case that indecent acts are only criminal if the patient or client has been coerced; in that case the punishment may be even more severe. Nor does an argument that the patient or client did not put up any resistance constitute evidence of completely voluntary action, as that would render the protection against the natural dominance of the care provider due to the nature of his or her profession more or less illusory. According to a judgment of the Supreme Court dating from 2003, even a care provider who fails to prevent his or her patient or client from involvement in sexual acts initiated by the patient or client may be guilty of this crime.

Always file a police report

Many care institutions are sensible enough to prohibit employees from committing sexual acts with patients or clients under internal protocols. However, strictly speaking it is not a disaster if no such protocol turns to have been implemented, as the prohibition is also imposed by legislation. It’s always possible to fall back on this. This is what is known as a standard contained in the general legal consciousness. The legislation also adds a number of special features, the most important being that the limitation period for criminal prosecution only commences once the patient of client reaches the age of majority. Care institutions have an agreement with the police that if such sexual acts are discovered they will always be reported to the police.

Far-reaching consequences

The consequences of committing such a crime can be far-reaching. It can be grounds for summary dismissal. It can lead to a sanction by a disciplinary body. Both the professional disciplinary bodies and the criminal courts can also punish the guilty party by prohibiting him from continuing to practise his profession. Depending on whether the client or patient has suffered physical or psychological injury as a result of the sexual acts, the civil courts may also order the care provider to pay compensation. The employer can make a claim against the dismissed care provider for the financial consequences of the immediate termination of his employment.

It is clear that it is in an employer’s interests to prevent any sexual acts between the care providers they employ and the patients and clients they wish to assist. In many cases the care provider in question underestimates both the consequences that entering into such a sexual relationship has for the patient or client and the consequences for himself if the relationship becomes public. As an employer it is your responsibility, as a minimum, to create an environment in which such behaviour is avoided to the greatest extent possible. And in which the patient or client feels safe and free to report it. Clear information and straightforward sanctions are a good start.