A recipe for reproach: acceptance of patient’s gifts triggers family concern

18 April 2018 | Harry McCay, BComm, LLB, Senior Solicitor, Avant Law, ACT

Doctors naturally want to provide the best possible care to their patients. In doing this, sometimes patients show their gratitude by offering gifts. While it is a thoughtful gesture, accepting gifts from patients can blur boundaries in the treatment relationship, leading to unwanted consequences and legal ramifications for the doctor, as this recent case demonstrates.

A complaint recently reported by a regulator, noted a general practitioner (GP) who had been treating his elderly male patient for over a decade. The doctor’s wife, also a GP, had treated the patient’s wife in that time. To show his appreciation for the service he and his wife had received over the years, the patient developed a habit of bringing in an occasional bottle of wine for one or both doctors.

Initially given at Christmas time and on the GP’s birthday, the gifts of wine became more frequent, adding up to two bottles about three or four times a year.

On one occasion, the patient gave the GP a meal voucher to celebrate his wife’s improved health and the fact he had received an unconditional driver’s licence. On another occasion, the patient offered his GP $1,000 in cash, which the GP said he refused.

Family members suspicious of doctor-patient relationship

The patient’s family members, believing the GP had failed to observe appropriate professional boundaries, lodged a complaint with the state’s complaints body. In addition to the issue of the GP receiving gifts from the patient, the family members were also concerned with the GP’s overall clinical care of the patient. They alleged:

  • The GP had referred the patient to a geriatrician for further assessment of his cognitive abilities upon the patient’s request, after a psychiatrist had found indications of early dementia. The subsequent assessment by the geriatrician found the patient had appropriate capacity, which the patient’s family felt was incorrect.
  • The GP had incorrectly determined the patient was cognitively competent to drive.

In this respect, one family member specifically complained that the GP had not adequately engaged with her as the patient’s appointed enduring guardian.

The complaints body brought the matter to a Professional Standards Committee Inquiry (the committee) to determine whether the GP had engaged in unsatisfactory professional conduct.

Issues considered during inquiry

In considering whether a finding of unsatisfactory professional conduct was appropriate, the committee had to determine:

  • the varied interpretations and implications of the gift-giving, such as monetary value, nature and frequency of the gifts
  • whether the GP attempted to discourage or return the gifts
  • the GP’s obligations in keeping the family informed of the patient’s treatment
  • the GP’s medical reasons for requesting further cognitive assessment by the geriatrician
  • the allegation of incorrect diagnosis concerning the patient's cognitive capacity.

GP escapes unsatisfactory professional conduct finding

Ultimately, the committee found in favour of the GP on all aspects of the complaint.

While the GP admitted receiving the gifts of wine and a meal voucher, the committee accepted his evidence that he did not accept the patient’s gift of money.

The committee noted guidance in the Medical Board of Australia’s Code of Conduct1 which warns about exploitation of a power imbalance in a doctor-patient relationship2, and prohibits encouraging patients to give gifts3. The committee did not consider that accepting a gift would necessarily breach the Code of Conduct.

The committee found the GP had not encouraged the gifts. However, they noted it would have been desirable for him to have held a conversation with the patient about why the gifts were given and reinforcing to him that they were not necessary. In this case, the committee believed that failing to do so could not be described as improper or unethical based on the context of their relationship and the patient’s desire to give gifts.

Regarding the health assessment, the committee found it was reasonable for the GP to seek a second opinion in the circumstances and to conclude the patient was fit to drive.

The committee also dismissed the allegation that the GP should have informed the patient’s family member of the patient’s request for a further cognitive assessment and his proposal to refer him to a geriatrician. Although the family member had been appointed as the patient’s enduring power of attorney, the committee noted that the power in relation to making health decisions only became operational when the patient lost capacity. In this case, they considered that the GP reasonably believed the patient had not lost capacity. The committee noted that communicating to a family member is such a circumstance could constitute a breach of confidentiality and the professional standards contained in the Code of Conduct.

The legislation in each state differs for enduring powers of attorney, so it’s best to check with your local Avant medico-legal advisor on the specific requirements.

Key lessons

  • A healthy doctor-patient relationship requires professional boundaries. While accepting gifts from patients does not necessarily breach boundaries, doctors should carefully consider the implications before accepting gifts from patients. Think about how it may affect your ability to provide good healthcare, and how a patient’s family might interpret the situation.
  • When treating elderly patients in particular, be aware of family members’ apprehensions and queries. Bearing in mind any privacy and confidentiality considerations, discuss with the patient what communications should occur with family members to address any concerns.
  • Understand when the powers in relation to health matters under enduring powers of attorney become operational.

More information

View our webinar: Ethics obligations knowledge and skills: Professionalism in medicine.

For advice on your obligations in the doctor-patient relationship, visit our website or call our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.

1Good Medical Practice – a Code of Conduct for doctors in Australia - http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx2Paragraph 3.2.5 of Code of Conduct ibid3Paragraph 8.12 of Code of Conduct ibid

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