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. Let’s see how some new Washington regulations treat this.
1. Under Washington Administrative Code 246-16-020, your dental hygienist and your optician are “health care providers.” This means that, under Washington Administrative Code 246-16-100, they “shall not engage, or attempt to engage, in sexual misconduct with a current patient.” Sexual misconduct “includes but is not limited to” sex, kissing, “[h]ugging … of a romantic … nature,” “[s]uggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends,” “[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship,” or “[m]aking statements regarding the patient[‘s] … body, appearance, sexual history, or sexual orientation other than for legitimate health care purposesamong many other things.”
OK, you say, no problem; you should just switch to a different dental hygienist or optician, and then start dating. Perhaps banning optician-client relationships is going a bit far, but it’s hardly a big burden on people’s romantic, sexual, or marital choices.
2. No dice! Subsection (3) of the provision states that “A health care provider shall not engage, or attempt to engage” in any of these activities “with a former patient, client or key party within two years after the provider-patient/client relationship ends.” Two years, not a short time. If you do want to date your former dental hygienist or optician, you can’t even kiss them until two years after you leave their practice. Or, to be precise, you can kiss them, and they can kiss you back — if they are willing to risk professional discipline and possibly loss of their livelihood, a pretty serious burden.
3. But wait; maybe before you leave them and wait the two years, you ought to get a sense of whether they’re even interested, no? Except that even if you ask whether they’re potentially interested, their answer has to be:
I’m sorry, but I can’t discuss the possibility of a relationship after the professional relationship ends.
Of course, this restriction does end two years after the professional relationship ends. So two years after switching dental hygienists or opticians, you can call up the person and say, “Hey, remember me, from two years ago? I only stopped coming to your office so that I could wait two years and then ask you out. So, are you interested?” At that point, they can start a relationship with you — or say, “oh, sorry you had to stay away for two years, but I don’t think it would work out between us.”
4. Actually, can they start a relationship with you, even two years later? Well, not if “(a) There is a significant likelihood that the patient … 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.” How should the hygienist or optician think this through? Let’s skip item (a), though even that’s troublesome enough (since if a relationship does develop, you might well ask your lover or spouse for some professional help, as lovers and spouses often do).
Instead, consider (b): Is there an imbalance of “power, influence, opportunity and/or special knowledge of the professional relationship”? It’s hard to grasp what “special knowledge of the professional relationship” means, but if the question is whether there’s an imbalance of “special knowledge,” the answer would likely be “yes”: All professionals, including dental hygienists and opticians, have special knowledge others don’t have.
And what about “influence” or “opportunity”? Say the optician is a relatively well-paid small businessman, and you’re poorer or less well-educated. The optician may well have more influence and opportunity than you do. He may not have nearly enough to threaten you or coerce you, but that’s not the test; the question is just whether there’s “an imbalance of … influence [or] opportunity.” Does an optician making a comfortable living have influence and opportunity that’s “balance[d]” with that of, say, someone who’s working as a waitress for minimum wage? Probably not. And if that’s so, then that means the optician and waitress can’d date even after the two years have passed.
Of course, maybe the rule is meant to capture something less than all “imbalance of power, influence, opportunity and/or special knowledge.” Perhaps eventually it will be interpreted more narrowly than it seems to be written. But in the meantime, the optician or hygienist who is contemplating whether to have the relationship with you risks losing his or her livelihood should he or she guess wrong about what the law means.
5. More: The rule applies not just to relationships with clients, but also with any “key party”, which includes “immediate family members and others who would be reasonably expected to play a significant role in the health care decisions of the patient or client and includes, but is not limited to, the spouse, domestic partner, sibling, parent, child, guardian and person authorized to make health care decisions of the patient or client.”
Say you’re a single doctor; you get to know your patient; and through the patient, you get to know the patient’s sister, whom you find yourself romantically interested in. Can you ask her out (either while you’re seeing the patient, or for two years afterwards)?
Well, if “who would be reasonably expected” applies only to “others,” and not to “immediate family members,” then immediate family members are off-limits to you, period, no matter whether they play a role in the patient’s health care decisions.
But say even that “key party” includes only those immediate family members who would be reasonably expected to play a significant role in the patient’s health care decisions. And say that the patient’s sister is herself a doctor or a nurse. The patient’s sister would surely be “reasonably expected to play a significant role in the health care decisions of the patient” — people routinely rely on medically trained family members’ advice in making health care decisions.
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 (that’s “[m]aking statements regarding the … key party’s … appearance”). You can’t do this while you treat the patient. You can’t do it for two years afterwards. You can’t do it even two years afterwards, if “[t]here is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship” (between you and the patient, or you and the sister? who knows?). And of course you can’t transfer the patient to another caregiver so that the two-year clock starts ticking, since that would be “[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship.”
6. While we’re at it, if you run into one of your patient’s at a party or some other function, make sure you never say that the patient looks nice, since that’s “[m]aking [a] statement[] regarding the … key party’s … appearance.”
7. And if you’re the professional involved, don’t just worry that these rules will apply to you only if the patient (or the other “key party” involved) complains. No matter how good your relationship with the person you’re seeing, no matter how nonacrimonious any possible breakup, no matter how carefully you make sure that you only date people who won’t want to jeopardize your career, someone else may file the complaint — say, a jealous ex of one of the people involved, which is what happened in this Minnesota case — and you may get disciplined even if the allegedly wronged party is entirely on your side (in fact, is now your loving spouse).
8. Of course I know that 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 psychotherapist-client (or -ex-client) relationships, or relationships between doctors and current patients, or other circumstances where 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, and vastly undervalue the countervailing reasons to limit regulation — people’s right to choose whom to date, have sex with, and marry, even including their dental hygienists, opticians, and the like. 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.