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Some time ago a colleague shared an article from an American newsletter that reported “Does staff member’s kiss of resident violate CMS regulations?”  This is the USA monitoring authority for aged care facilities.

At first glance my immediate response to the fact a nurse kissed the man who was a patient in rehabilitation on both cheeks and the forehead, saying “I have always loved you” was oops.  To me this interaction was a step too far.    BUT asked whether there were legal or professional risks in such behaviour in Australia was cause for me to look harder.

The wife of the patient reported the incident claiming it had made both her and her husband uncomfortable.   They did not know the name of the RN but were dissatisfied with the administration’s first investigation which had found no evidence.  The wife then reported to the State authority and that investigation (called a survey) did identify violations of Medicare and Medicaid’s regulations which included a failure to protect a resident from abuse and failure to implement policies on abuse/neglect.  The facility was held accountable.

Thinking it over for some time and having worked in the USA where I observed what seemed to me to be more personal and emotional interactions at times between staff and patients I wondered if the nurse had problems and lacked insight or whether the man and wife were just a bit too sensitive.

I have no doubt that staff do give hugs and kisses to patients especially the very young and the old.  The kindness and empathy of giving emotional support, touching and recognition is important but I have also seen where one “loved” client has received such attention other patients in the room were jealous and hurt, especially in paediatric areas.

Over many years I have seen examples of nurses who have failed to maintain a professional relationship with clients during admission or after discharge getting into strife for unprofessional or unsatisfactory professional behaviour.  AHPRA reports many violations as a result of investigations and professional hearings.

There have been incidents where the actions of staff showing “excessive” fondness for clients have been observed by family and caused distress.  The families felt staff were displacing them in the affections and intimacy with the client.  Jealousy, guilt or ownership might be behind the family’s discomfort but the reactions are strong.

Trespass is a legal term, it is a criminal action and trespass to person can be a civil case where people feel they have been subjected to inappropriate touching.  Obviously minor infractions and crowded situations fall outside of such actions but if there has been a deliberate behaviour, assault, battery or false imprisonment the law steps in.

Touching without consent is trespass.  In the case reported it was determined that the kissing incident was an innocent expression of an RN’s happiness with the progress of one of her patients.  The outcome of the investigation found the facility at fault.  The failure of administration to deal appropriately with the complaint led to sanctions.  There was no report that the RN was chastised but the findings did highlight that there need to be policies and procedures that protect clients from what could be interpreted as abuse.

The concept of maintaining professional boundaries is the key I think.  The risk of interpreting behaviours or comments that are  personal rather than professional lies behind many situations.  We may be utterly innocent of anything other than kindness or empathy but if touch or words are interpreted by observers as “a step too far” then the way is open for condemnation.  “Do we have to be cold, aloof and unfeeling?” Is often asked by students when boundary issues and boundary violations are discussed.  Of course not but we do have be culturally and professionally aware if strong emotions or conversations move from professional to personal interactions.

It is hard, especially when we want to support and help people emotionally.  We care and we express that caring with clients.  The trick is not to single out particular people who generate strong emotions in us.  We have to be able to monitor our own reactions and also respond with caution when faced with client’s words or behaviour that have moved into the personal arena.

So in answer to the question could there be legal consequences for kissing a client no matter how innocent the action was?  I think if it was a once off, public display that would be unlikely.  Could there be professional consequences?  Yes certainly because we are governed by our standards and ethics and boundary crossings or worse, boundary violations are matters the profession takes seriously.  Protection of the public is what it is all about.

Facilities can be held accountable it would seem from the article described above.  Failure to have adequate policies, failure to investigate complaints properly, failure to respond appropriately to concerns about behaviours open the way for complaints.  I would hate for staff to be so inhibited and fearful that they withhold instinctive kindness and emotional caring.  What we need to ensure is that we have clear ideas about what the limits need to be.

There are some fabulous webinar recordings by Pam Savage regarding Nurses and the Law at the Nursing CPD Institute. The  Nursing CPD Institute provides good information and CPD  on an array of nursing topics in a range of easy learning ways including webinars and quizzes on the latest information that Nurses need to know – remember the Nursing CPD Institute  was created by Australian Nurses for Nurses!