Sexual Misconduct by Pharmacists Part 1: Background

US Pharm. 2016;41(6):46-48.

Boards of Pharmacy address a variety of issues associated with pharmacists and their misbehaviors. Many of these events involve violation of federal or state statutes, disregard of regulations or rules, dispensing errors, diversion, fraud, and failure to comply with continuing education or competency requirements.¹ Events that may also trigger board review are sexual indiscretions by pharmacists. When it comes to the personal actions of pharmacists, in some cases they are no different from the actions of certain politicians, clergy, or professional athletes. Pharmacists are human and naturally experience sexual desires. However, expressing some sexual desires inappropriately can result in criminal prosecution and Board of Pharmacy action.

This article will explore the causes and costs of such sexual indiscretions and present an original study of several cases where pharmacists were disciplined for sexual misconduct.

Sexually Offensive Behavior and Pharmacists

Experiencing sexual attraction toward people we come into contact with on a daily basis is a normal element of a typically functioning libido.^2,3 Problems associated with these attractions may occur when the individual acts upon them, because it is at this point when those actions affect the life of another person. Occasionally, the actions include sexual misconduct that is not acceptable to society. Therefore, it will always remain necessary for society and regulatory bodies to examine the vulnerability of some individuals within a given situation or relationship.

A problem may rise in any relationship requiring mutual agreement where an imbalance of power exists between the parties involved. For instance, one can envision a situation where a supervisor asks for an employee’s input about some issue, after the super-visor has made it clear what the expected answer should be. Even if the employee feels completely safe to express the opposing viewpoint, he or she will still feel compelled to say what the supervisor wants to hear. Therefore, when there is an imbalance of power, the person with less power is never truly being asked for an honest opinion or opposing thought. It is within this framework that this article will analyze the potential for an exploitative relationship between a pharmacist and his or her patient.

Within the practice of pharmaceutical services, there are two potential avenues of a power imbalance, and it is important for a pharmacist to recognize the power that is associated with the position he or she occupies in most societies, including in the United States. Pharmacists are in a position of power due to: 1) the societal importance associated with their position, and 2) the nature of pharmacy services. While each represents a distinctly different type of power, both provide an avenue for an abusive relationship between the pharmacist and his or her patients. For patients who are engaged in drug-seeking behavior, few people have more power than a medical professional who can ultimately place the desired drug in their hands. This creates an opportunity where an addicted patient may engage in behaviors that he or she would otherwise avoid. These situations are easily recognizable as patient abuse made possible by the imbalance of power. In these cases, the pharmacist may consciously misuse that power to coerce patients to participate in sexual behaviors.

Another type of exploitative relationship that is not as easily identified results from the imbalance of power provided by the social status of a position. Henry Kissinger once said that “power is the ultimate aphrodisiac,”⁴ and the field of evolutionary psychology provides numerous studies to demonstrate this phenomenon. A classic study of mate preferences found that females often find males who exhibit a higher level of power and social status to be more attractive.⁵

In these situations, the patient may be vulnerable to potential coercion to engage in a sexual relationship because of an overwhelming attraction to the pharmacist. Therefore, it is important to recognize that, in these instances, the pharmacist may have made no attempt to coerce the patient, and may not even be consciously aware of the possible coerciveness that is associated with his or her displays of returned sexual interest. However, the codes of ethics within most professional organizations warn of the potential problems of dual relationships, specifically for this reason. These codes of ethics caution professionals against any involvement with clients or patients that might impair their judgment, affect their ability to render effective services, or result in potential harm to, or exploitation of, patients.²

While many of these cases have involved sexually offensive behavior that followed a line of power associated with the pharmacist’s access to drugs or the pharmacist’s social status, there have been examples of sexually offensive behavior that occurred separately from the individual’s role as a pharmacist. While focusing on the etiology of sexually offensive behavior leads to an extensive body of literature discussing biological influences and sociocultural factors as well as developmental experiences, recent studies suggest that sexual offenders use sex as a coping strategy, and there appears to be an element of control embedded within most types of sexually offensive behavior.^6-8 Rapists, for example, often state that a primary motivation for an assault was to degrade the victim, as a symbol either of all women or of a specific woman who has offended him.⁹ Child molesters report feeling in control when they have sex with children, and that they do not feel the same sense of control with adults.¹⁰

Whatever variables play a role in the desire to engage in sexually offensive behavior, one element that is always identified as a precursor to the sexual offense is opportunity. Many sexual offenders deliberately create opportunities to offend, but others simply allow events to unfold in a way that produces the opportunity.¹¹ This allows the opportunity to arise, while enabling the offender to deny that he or she deliberately created the situation. In whatever way opportunities occur, the critical point is that no matter how strongly predisposed an offender is to commit rape, child molestation, or other sexual offense, he or she cannot do so unless an opportunity exists.¹² Therefore, it is important to begin acknowledging the potential opportunities that may be created by the power associated with a pharmacist’s access to drugs and by the social status associated with the position itself.

When behaviors or interests are sexual in nature, our individual sensitivities and cultural backgrounds come into play.³ While some situations or relationships are easily recognizable as egregious violations of ethics and offensive abuse of the victim, other situations may be much less clear. That is why professionals within any field must continually be reminded that their behaviors are a reflection of their profession, and that even when there is no harm intended or anticipated, they may face legal issues and will be held accountable by their licensing board when violations occur.

The legal implications pertaining to dual relationships within the field of mental health depend on the nature of the dual relationship and whether the client suffers harm.¹³ In the area of mental health, engaging in a sexual relationship with a client or patient is strictly prohibited by every set of ethical standards developed by the various professional associations and licensing bodies. Nevertheless, research indicates that many training programs do not spend enough time addressing how to deal with sexual attraction to clients.^14,15

In light of those findings, Corey et al argued that training programs have an ethical responsibility to help students prepare for and openly discuss their concerns about sexual dilemmas in counseling practice.² They further pointed out that ignoring this subject during training sends a message to students that it should not be talked about, which will inhibit their willingness to seek consultation when they later encounter a sexual dilemma in their practices.

Furthermore, the restrictions associated with sexual misconduct were an area of concern for the field of medicine long before the field of mental health came into existence. The Hippocratic oath, dating to the 4th century BC, stated, “Whatever houses I may visit, I will come for the benefit of the sick, remaining free from all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.”¹⁶

Clearly, then, there is an enormous need for all medical professionals to take a closer look at the potential sexual violations that could occur and to use this information to better prepare students in training programs. As Corey and his colleagues elegantly summarized, prevention of sexual misconduct is a better path than remediation.²

Actionable Offenses

It is well established in U.S. law that states have the power to regulate the practice of pharmacy, through both their police powers and the Tenth Amendment to the U.S. Constitution. Boards of Pharmacy are typically granted broad discretion by state legislation to discipline pharmacists, technicians, and pharmacies. Disciplinary actions include license revocation, suspension (with or without probation), reprimands, and civil penalties.

While the majority of infractions may be related to federal or state drug violations, Board of Pharmacy regulations may specifically allow for discipline based on violating any other type of federal law, state law, or rule. In addition, Boards of Pharmacy establish rules that provide for discipline should pharmacists conduct themselves in a manner that is likely to lower the respect and confidence the community has in the profession of pharmacy. Activities that involve sexual indiscretions can fall into this category and are typically categorized as unprofessional conduct.

Sexual indiscretions that lead to criminal charges may result in board actions. Furthermore, even if a pharmacist is acquitted in court of the charges, the board may still implement penalties, as the standard for determining guilt in an agency hearing is typically lower than “beyond a reasonable doubt.”

Generally, laws and regulations must be specific enough so the pharmacist knows what would be considered illegal activity. Other-wise, a pharmacist would be forced to guess at what is prohibited. Pharmacy practice acts and board regulations are an exception, as they do not indicate specific sexual offenses that constitute unprofessional conduct and moral turpitude. Nevertheless, such cases can be successfully prosecuted by the board even though the pharmacist has disobeyed no specific legal requirement (In re Suspension of Heller, 374 A2d 1191 NJ 1977). While some may argue that the laws and regulations are unconstitutionally vague, most courts have upheld the discretionary use of such provisions that result in discipline by Boards of Pharmacy.

Original Study: Method of Data Collection

The purpose of our study was to collect data from Boards of Pharmacy in all 50 states and the District of Columbia. A letter was sent to each state pharmacy board, asking that they provide up to two cases relating in some manner to discipline based on sexual indiscretion. The letter included a self-addressed mailer and an e-mail address so cases could be mailed or forwarded electronically. Boards of Pharmacy responded with hard copies of cases, electronically transmitted cases, and, in one situation, a website where cases could be examined.

Response Rate

Fifty-one Boards of Pharmacy were mailed the request for information. Twenty states responded, which is a response rate of 39.2%. Ten boards reported no cases of sexual indiscretion, often mentioning that the apparent lack of cases was based on a personal recollection of the executive director or the individual who was responding. Because the boards relied on personal recollection, the true coverage period was limited to the time the individual reporting had been affiliated with the board and the quality of his or her memory. Boards of Pharmacy typically do not have master indexes of the types of cases prosecuted. As such, when a board reported no cases, what that meant is that, based on the knowledge of the reporter, there were no cases.

Conclusion

Look for further coverage of this important topic in the August 2016 issue, when the specific cases will be presented.

REFERENCES

1. National Association of Boards of Pharmacy. Boards of Pharmacy report 1,914 disciplinary actions to the NABP clearinghouse during second quarter 2015. NABP Newsletter. 2015;44(9):193. www.nabp.net/system/rich/rich_files/rich_files/000/001/133/original/october2015nabpnewsletter-final.pdf. Accessed February 2, 2016.
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16. The Hippocratic oath. www.nlm.nih.gov/hmd/greek/greek_oath.html. Accessed March 11, 2016.

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