Who should provide your intimate care?

April 5, 2005 -- Today Newsday ran an interesting AP story by Timothy Inklebarger about a bill pending in the Alaska legislature that would allow mental health inpatients to express a gender preference for "intimate care." The piece, "Bill would let patients pick nurse gender," does a good job of including brief comments from supporters and opponents of the bill, but it could have explained the bill better and explored some of the issues presented in more depth.

The piece leads with the story of Faith Myers, a former patient at the Alaska Psychiatric Institute (API) in Anchorage who (along with her partner) has reportedly filed many complaints over the last few years about API practices that have allowed what she views as invasions of privacy by male staff. The structure of the piece suggests that Ms. Myers' complaints may be the main impetus for the pending bill, which she is "pushing" for, but the piece does not specifically say that. It does explain that Ms. Myers, who has schizophrenia, has stated that "male nurses" at API would "regularly see her and other female patients bathing, using the bathroom, and dressing," that "male staff members" would walk into female patients' bedrooms, showers and bathrooms unannounced, and that she had been "strip searched" by two male nurses when she was first admitted to API, despite requests that it be done by female staff. The piece would have benefited from some account of API's response to Ms. Myers' specific factual claims, which might shed further light on the nature and extent of the alleged problem.

The piece reports that the bill, HB 220, allows mental health patients in institutions with staffs of 10 or more persons to express a gender preference for intimate care. The report notes that if a "staff member of the same sex" is not available, the facility must document the reason. The bill's sponsor, Rep. Les Gara (D-Anchorage), argues that his bill is "about the basic right of the most vulnerable patients to be treated with dignity," and warns that patients who have suffered sexual abuse could be further traumatized by having patients of the opposite sex bathe or clothe them. Not surprisingly, API opposes the bill, and the piece quotes director Ron Adler arguing that it is unnecessary because API plans to follow an Alaska Mental Health Board recommendation to "revise its gender sensitivity policy to allow the staff gender requests." Gara counters that API is only responding to the pressure brought on by the bill, and that without that pressure the needed change may not occur. The piece also quotes Karl Sanford, chief nursing officer at Fairbanks Memorial Hospital: "I am offended by this because it is my job as a nurse to make an appropriate assessment of the patient upon admission into the facility and to make sure that that patient's issues are dealt with appropriately." In fact, though the bill is by its terms gender-neutral, it's not hard to imagine male nurses in particular objecting to the implication that they cannot be trusted to fulfill their legal and ethical obligations to provide appropriate professional care solely because of their gender. The story does not specifically bring this out.

This bill raises a number of other issues that are worth exploring. First, though the current draft of the bill is limited to adult patients "receiving mental health treatment" at "hospitals," the drafting is broad or unclear in several ways. First, the bill is not limited to female patients who wish to have female nurses. It provides broadly that any mental health patient who is receiving "intimate care" may request "care by a staff member who is the sex the patient requests." "Intimate care" is defined as "hygienic care" including bathing, dressing, changing and toileting, but not "activities done in preparation for medical procedures" (whatever that means). The bill as drafted would allow male or female patients to request male or female care givers, and by its terms not just for intimate care, but for any "care." In addition, it applies not just to nurses, or even other types of licensed care givers, but to any "staff member" at all. On the other hand, the bill also offers a catchall exemption from the general rule if compliance would "adversely affect patient treatment" (whatever that means).

Some questions arise. Based on other language discussed below, it appears that the bill is intended to be limited to intimate care, but the most relevant part, specifying what the patient can request, says only "care." Presumably the bill will not be construed to give patients the right to request that every aspect of their care, whether intimate or not, be provided by a member of a specific gender. Moreover, though the article seems to see the bill solely in terms of Ms. Myers' situation, what about a patient who requests a male care giver? It may often be practical to fulfill requests for females, but we're less sure about the reverse, even in psychiatric units, where the percentage of male nurses may be higher. In addition, if the hospital cannot comply with the request despite "reasonable and good faith" efforts, the bill appears to require that it document that it has had a "licensed staff member" of the non-requested gender provide "intimate care," or if no such licensed staff member is on duty, then it must document that it has had an "unlicensed" staff member of the non-requested gender do so. The term "licensed staff member" expressly includes registered nurses, advanced practice nurses, nurses' aides, physicians, physicians' assistants, and physical therapists. Some of these persons may not technically be "staff," but does the bill really mean that hospitals would be required to have staff physicians, physicians' assistants or physical therapists provide the intimate care if any were on duty? Some nurses might look upon such a prospect with momentary glee, but what the bill describes as "intimate care" is part of the nursing assessment, and having it performed by personnel who are not trained as nurses presents quality of care issues. Moreover, what is the real reach of "intimate care"? Does it include any tasks typically done by physicians, such as exams? Where do transgendered providers fall? What would a hospital have to show to be excused under the "adversely affect patient treatment" provision, which could potentially make the whole thing little more than advisory in nature? On a more minor note, the current draft bill applies only to facilities with more than 10 staff members on duty to provide direct care to mental health patients, not all hospitals with 10 or more staff members, as the piece states.

Perhaps the biggest unexplored issue is the potential effect of such a law as precedent for the allowance of such preferences to influence or control the provision of care beyond intimate care for mental health patients. Should inpatients on general medical-surgical units or in long-term care facilities--some of which may have few male nurses--be given the same right? Should inpatients be able to control the gender of the practitioner who performs invasive exams or surgeries? Should inpatients be able to express other class-based preferences for their providers (such as ethnicity or sexual orientation)? Or is the situation Ms. Myers describes unique, perhaps because of the history of male sexual violence toward women?

Ms. Myers' allegations raise serious questions as to whether appropriate care was provided, and whether the facility in question was following appropriate policies. However, to the extent the allegations relate to the care of nurses or those under nurses' supervision, many nurses may see the proposed response as overreaching. As Mr. Sanford's comment about his "job as a nurse" implies, current legal and ethical nursing standards do already address Ms. Myers' concerns, albeit in a more general way. For instance, the US Code of Ethics for Nurses, provision 1.1 reads: "Respect for human dignity - A fundamental principle that underlies all nursing practice is respect for the inherent worth, dignity, and human rights of every individual." At least some of the alleged behavior would appear to violate this fundamental part of the code of ethics. In addition, the Alaska Nursing Statutes and Regulations (Article 7. Disciplinary Guidelines, Section 770: Unprofessional conduct) states that nurses shall not emotionally abuse a patient. Unnecessarily invading a patient's privacy would appear to be a form of emotional abuse. Our understanding is that other licensed health professionals operate under comparable legal and ethical standards. Given these factors, as well as the policy issues discussed in the paragraphs above (some of which would remain even with a well-drafted statute), it is worth considering whether a special legislative response to alleged abuses at one facility is appropriate in this situation.

In short, this bill's subject matter and drafting issues would appear to present a complex web of policy concerns, and the article could have done more to bring that out.

Alaskan nurses: Please contact your legislative representatives about the bill. Non-Alaskan residents: weigh in with your comments to Alaskan Nurses Association Executive Director Camille Soleil at csoleil@aknurse.org and please send us a carbon copy so we can follow your thoughts on the issue. Thank you.

See the article by Timothy Inklebarger in Newsday or AP.

See the pending house bill 220 in the Alaska legislature.