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The Ethical Problem of Sexual Misconduct by Doctors in Australia

1. Clearly define the ethical question/problem and provide a brief explanation as to why it is important.

2. Identify facts and key assumptions which are relevant to your analysis of the ethical problem.

3. Analyse the ethical problem using act utilitarianism, identifying all relevant consequences. Compare negative versus positive consequences and assess whether net utility will rise or fall as a result of the ethical act being examined.

4.  Apply Kant’s categorical imperative by defining the rule that authorises the act central to the ethical problem you have chosen. Discuss whether this rule can be applied universally.

5. Provide a conclusion comparing results in parts c & d above identifying whether your ethical conclusion equates with your conscience with regards this problem.

1. Recently, a Perth doctor has been banned from practicing medicine because of professional misconduct which includes act of sexual harassment towards a patient. As per the judgement issued by State Administrative Tribunal, the conduct of Gregory Duck was considered as serious breach code stated by medical institutions for doctors. Serious breach of code includes incompetence and poor medical practice and sexual harassment (ABC, 2017).

There are some recent cases of sexual misconduct in Australia by doctors have brought this issue into the limelight. This issue is considered as serious breach at both ethical as well as legal level. A sexual relationship between the doctor and the patient is considered as unethical and it challenges the basic factors of doctor patient relationship.

2. In Australia, almost 50 doctors are still conducting their medical practices which have been alleged for sexual misconduct. As per the report of Fairfax Media, Dr Andrew Churchyard, working as neurologist in Victoria had harassed almost 35 patients from last 13 years in Australia and still he is able to continue his practice despite a complaint to the Medical Board as long ago as 2007.

Health Minister of Victoria named as Jill Hennessy is invited for the purpose of reviewing the national use of chaperones for doctors who are alleged for sexual misconduct. All the victims of Dr Churchyard's were male, and they all are suffered from some serious neurological conditions such as Huntington's disease and Tourette's Syndrome. Dr. Churchyard was charged by police for harassing their patient and he committed suicide after more patients file complaint against him (SDM, 2016). 

According to Hyam, there are many similarities between the child sexual abuse and sexual misconduct by doctors because in both the cases there is no balance of power, victim is not capable to make decision in his own interest and weakened self-protective instincts and vulnerability. Other similarities include factors related to secrecy which are associated with traumatic disillusionment with the idolised object, and victim is feeling guilty for that experience and thinks he is responsible for everything. There are some legal similarities also such as consent of victim and in both the cases it is not possible for victim to provide informed consent. There are number of countries such as America where sexual misconduct by doctors are  considered as misconduct but with one exception that consent of victim cannot be used as defence (Kiel, n.d.).

Utilitarian Analysis of Sexual Misconduct by Doctors in Australia

3. Utilitarian includes all the good and bad notions of any action on the basis of consequences produced by the act. These consequences can arise at any time whether as the result of the act or during the performance of act. If there is not much difference between the positive and negative consequence then many scholars did not consider the issue as moral issue. Acts are considered ethical if positive consequences of the act are more as compared to negative consequences, and in case negative consequences are more than act is considered as unethical (Mill, 1863).

In the present issue, sexual relationship between doctor and patient is considered as unethical act. In case if both doctor and patient give informed consent for sexual relationship then it might be possible that this relationship have some positive consequences. Positive consequences of sexual relationship between doctor and patient are very less as compared to negative consequences. There are very particular situations in which this relationship is considered as ethical relationship.

On the other hand, sexual relationship between doctor and patient is clearly unethical, and they are always considered as unethical because there is imbalance of power between the doctor and patient and victim is not able to take decision in his own interest (Cohen, Kelian, Oliveira, Gobbetti, & Massad, n.d.)

It is the fundamental duty of the doctor to respect the dignity of patient and also to maintain the respect of his profession. There is fiduciary relationship between the doctor and patient and such acts reduce the dignity of medical profession.

Sexual harassment not only affects the victim at physical level only but it also leave mental affect on patient. There are both long term and short term effects of sexual harassment on victim such as fear, guilty feeling, mental disorder, lack of confidence, and various other effects. In some cases victims even take their own life and take other major steps. Therefore, negative consequences are more as compared to positive consequences. 

4. Kant was the opponent of Utilitarian theory developed by Mill. According to Kant, there are some actions which are prohibited such as murder, theft, and others even these actions result in more positive result as compared to their alternatives. Kant developed two questions to decide whether act is ethical or not. First question determine the purpose of act and consider whether act fulfil the goals of human beings or just done to fulfil one owns purpose. Section question states whether act perform by person rationally done by other persons also. In case answer to these questions is no then it is advisable that individual does not perform that question. According to Kant these questions were equivalent. Theory developed by Kant is an example of a deontological moral theory, and as per these theories act is ethical or not does not depend on the result of act but on the fact whether individual perform his duty or not.

Kant's Categorical Imperative and Sexual Misconduct by Doctors in Australia

Kant stated that principle of morality was supreme and he referred to it as The Categorical Imperative, and the CI determines the moral duty of individual (CSUS, n.d.).

Sexual harassment by doctors is an ethical issue and it also affects the duties of human being. This type of conduct from doctors while discharging their voluntary duties not only reduces the dignity of medical profession but also breach the human dignity. As stated above, it is the fundamental duty of doctors to respect the dignity of patient and their profession.

On the basis of Kant theory this type of conduct is analyzed on the basis of two questions. Firstly this type of conduct does not fulfil the duty of human beings and its result and the purpose of this act is self oriented. In this doctor’s consider their own interest and perform the action for self satisfaction, and as per Kant’s theory action is not ethical if it does not fulfil the goals of human beings or just done to fulfil one owns purpose.

Secondly, this type of conduct is not perform rationally by the other person because it fall under the category of breach of ethics as well as it result in legal consequences, and as per the theory if act is not performed rationally by other person then act is unethical (Caplan, 2016). 

5. After analyzing this issue on the basis of above two theories that is utilitarian theory and Kant theory, it is clear that sexual relationship between doctor and patient is unethical act. It not only breaches the moral ethics but also create legal consequences for doctors as well. The issue of sexual harassment is itself a sensitive matter but its implications in medical field are more dangerous because society respects this profession and there is relationship of trust between the doctor and patient. Therefore, Sexual harassment is clearly an unethical act and in case of medical profession it is considered as more dangerous. Medical institutions must take strict action to avoid such situations and set framework for this purpose.

References:

ABC, (2017). Perth doctor banned over ‘sexualised behaviour’ towards patient. Available at: https://www.abc.net.au/news/2017-02-17/perth-doctor-banned-over-professional-misconduct/8279546. Accessed on 10th March 2017.

SMD. (2016). Dozens of doctors being watched due to sexual misconduct allegations. Available at:  https://www.smh.com.au/national/health/dozens-of-doctors-being-watched-due-to-sexual-misconduct-allegations-20160809-gqopbs.html. Accessed on 10th March 2017.

Kiel, H. Sex, discipline and doctors the New South Wales experience. Available at: https://www.aic.gov.au/media_library/conferences/medicine/kiel.pdf. Accessed on 10th March 2017.

Mill, J. (1863). Utilitarianism. Available at: https://www.utilitarianism.com/mill1.htm. Accessed on 10th March 2017.

Cohen, C. Kelian, R. Oliveira, R. Gobbetti, G. & Massad, E. Sexual harassment in the physician-patient interaction: analysis of charges against doctors in the state of São Paulo. Available at: https://www.scielo.br/scielo.php?script=sci_arttext&pid=S1807-59322009001100007. Accessed on 10th March 2017.

CSUS. Kantian Ethics. Available at: https://www.csus.edu/indiv/g/gaskilld/ethics/kantian%20ethics.htm. Accessed on 10th March 2017.

Caplan, L. A. (2016). Too Many Doctors Who Sexually Abuse Patients Go Unpunished. Available at: https://www.medscape.com/viewarticle/872103. Accessed on 10th March 2017.

Soin, K. & Tan, J. Sexual Harassment in the Medical World. Available at: https://www.sma.org.sg/UploadedImg/files/Publications%20-%20SMA%20News/4512/Insight.pdf. Accessed on 10th March 2017.

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