Case Scenario

I recently saw the name of one of my patients on a list of registered sex offenders who reside in the same ZIP code as our practice. This patient’s name was listed under crimes against minors. Often, parents leave children unattended in our reception area despite our posted policy that children younger than 12 years are to be accompanied by a responsible adult at all times.

I spoke to our risk management team, whose advice was, “Don’t tell anyone about him, just get him in and out quickly.” Certainly, I don’t want to be responsible for monitoring the comings and goings of everyone in the waiting room when this patient is on the schedule, and it does not seem appropriate to divulge his status to our staff. However, I did tell the staff that one of our patients is a convicted sex offender and to be mindful of unattended children in our office. At this time, however, I am the only one aware of this patient’s identity.

What are my ethical and legal obligations regarding this patient? What are my obligations regarding patients and staff with whom he might come in contact? Right now, I am in solo practice. If I hire an associate, should I tell that physician the patient’s identity? What should I say to staff if they see his name on the registry and ask about him specifically?

Commentary

Before addressing the particulars of this scenario, it may be helpful to review the current status of notification laws, which have evolved in the last decade. It is important to keep in mind that the presumptive purpose of community notification through registration is solely to inform the public, not to exclude or deny sex offenders services, not to ostracize them, and not to undermine their readjustment into society.

In 1994, the U.S. Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. The Wetterling Act required states to establish registries for convicted sex offenders and to develop rigorous registration requirements for sex offenders who are considered dangerous (i.e., “sexually violent predators”). The Act required all sex offenders to report their addresses every year for 10 years, and required those classified as “sexually violent predators” to report their addresses every three months for the rest of their lives. States that failed to comply with these provisions by September 1997 were subject to the forfeiture of 10 percent of the federal block grant funds earmarked for criminal justice purposes under the Edward Byrne Memorial State and Local Law Enforcement Assistance Program. By 1996, all 50 states had sex offender registries, and approximately 185,000 sex offenders were registered under these state laws.¹ Congress amended the Wetterling Act in May 1996. The resulting law, known as “Megan’s Law,” mandated that the designated agency for each state “shall release relevant information that is necessary to protect the public concerning a specific person required to register.”²

Not surprisingly, the community notification laws have generated substantial litigation and a corpus of case law, more than 60 percent of which was published between 1997 and 1999.³

In response to this particular physician’s query, the most constructive response is one that is informed, low-key, and dispassionate and balances public safety with the basic civil rights of the sex offender.

Although the information placed on the registry is in the public domain, and therefore is not confidential, it does not mean that a patient’s privacy rights can be abridged. Physicians are not obligated to inform their patients that another patient is listed on the registry, and, of course, the physician cannot disclose the identity of the individual to other patients. Nevertheless, some of the physician’s patients may have seen registry notices, recognized this patient, and may inquire. Again, the physician cannot confirm or deny rumors about this or any patient. The physician may say something like, “If we become aware that a patient in our practice is on the sex offender registry, please be assured that we will do everything we can to ensure the safety of our patients.” The best that physicians can do is to demonstrate that they have taken “reasonable care.”

The physician also may take a number of other steps. Although the physician is not obligated to inform the office staff that this patient is on the sexual offender registry, doing so in a low-key, nonalarmist tone may be appropriate and serve several functions: (1) preparing the staff in case a patient approaches them with a question about this patient; (2) alerting the staff, if approached regarding this patient, to direct patients to the physician; and (3) allowing all staff to be vigilant for any signs of concern. The physician could explain to this patient that he is aware that the patient is on the registry, that the office is a potentially high-risk setting because children frequent the waiting room, and that, inevitably, some of the other patients also may recognize him. The physician should assure this patient that the physician’s office is a safe and comfortable place both for this patient and for the other patients.

The physician has several possible options to choose from, and whatever decisions are made should be conveyed to this patient . The physician might choose to: (1) schedule this patient only at extreme hours of the day (i.e., very early or very late) to reduce or avoid contact with children; (2) have this patient wait for his appointment in an empty examination room rather than in the waiting room; or (3) refer this patient to an adult-only practice, if possible. Although this last option is not a perfect solution (e.g., adults without childcare may bring their children to the office), it considerably reduces the likelihood that this patient will encounter a child in the waiting room.

A fourth option, which I do not favor, is asking the receptionist to keep an eye on the waiting room when this patient is present. This option may place an unreasonable burden on the receptionist, who may feel torn between watching this patient and performing her assigned duties. I would explain to this patient that if any of these minor precautionary steps is taken, it is to protect him from false accusations as much as to protect the other patients. Lastly, if the physician has a posted policy that children younger than 12 years are not to be left unattended, he or she should make sure that the policy is prominently displayed.