A frequent reader of this blog has recently sent me some articles about physicians with mental illness. She has a long standing interest in substance abuse and how doctors are handled in rehab. Specifically she is angry with the way doctors are treated like sub-humans when involved in substance abuse programs. That is her opinion. There is a lot of anecdotal information to support her view. We also have some tangible evidence that state medical boards treat physicians with all kinds of mental illnesses differently from other doctors. One of the articles is a testimonial from JAMA in 1998 by an internal medicine doctor who had been diagnosed as bipolar. He had innocently marked on his license renewal that the diagnosis had been made. The Minnesota medical board demanded his psychiatric records, presuming he was a public risk simply by being diagnosed with a psychiatric condition. He refused to produce the records. After a prolonged battle the Department of Justice advised the request for records violated the Americans with Disabilities Act (ADA). Notably there had never been any complaints filed against him. Had he not self-reported, no one would have known the diagnosis.
The JAMA testimonial is here:
There is a balance here. The state has a right and duty to protect the public. The doctor has a right to privacy, especially concerning personal medical records. Nowadays, state boards cannot directly ask about substance abuse or mental illness. They can ask general questions like "Do you have any condition which would hinder or prevent you from performing medical duties in a safe and effective manner?"
Of course, the doctor who has successfully completed substance rehab or is effectively treated for a mental condition can answer "No" without disclosing any details. That is a big change. The presumption that a diagnosis of mental illness places the doctor in a suspect category no longer is allowed under ADA....
In early August the Department of Justice's Civil Rights Division responded to Miles's complaint by informing the Health and Licensing Section of the Minnesota attorney general's office that the government "generally supports the task force's recommendations," which urge shifting to a standard of proof that would investigate an applicant's ability to practice medicine instead of automatically demanding records when a psychiatric illness is involved.
The Department of Justice stated, however, that in several areas the recommendations still fall short of meeting the requirements set out in the ADA.
The medical board's task force urged, for example, that when an applicant's answers to certain questions raise concern, requests for an applicant's medical records be ordered according to a hierarchy and that the process be overseen by a medical coordinator who is also a licensed physician.
The sequence would be the following: (1) the treating physician's statement; (2) hospital summaries such as admission, discharge, and consultant reports; (3) full hospital records; and (4) outpatient treatment records.
Responding to this suggestion, attorney Sheila Foran of the Department of Justice's Disability Rights Section told the medical board that although the hierarchy idea "is sound in principle," it is "too vague to ensure implementation consistent with the ADA. In order to fully comply with the ADA, the board must devise procedures that will safeguard the integrity of the hierarchy; namely, ensuring that additional medical information will be sought only where strictly necessary to determine a licensee's fitness to practice."
Foran suggested that at the first level, the treating physician be asked specifically about the applicant's ability to "perform with reasonable skill and safety all tasks and activities required of physicians." Only when their responses are "unsatisfactory" should they be asked for information about the illness course or treatment.
"In the vast majority of cases, the treating physician's opinion that the licensee's condition does not negatively impact his or her ability to perform" professional duties should close the board's inquiry, she wrote...
At the level at which complete hospital records can be requested, the Department of Justice wants the board to show that it has reason to doubt the applicant's ability to practice, and that hospital summaries indicate that without additional information the applicant cannot be declared fit to practice. The licensee must be informed in writing of such a finding "in ample time to permit appeal," according to Foran.
"A licensee should almost never be asked to produce outpatient medical records," she emphasized in addressing the fourth level of the hierarchy. The strict criteria for taking steps at this level are that all previous information is insufficient to draw conclusions about a physician's ability to practice and outpatient record requests are very narrowly drawn and needed "to rebut the Board's preliminary determination that the licensee is not qualified to practice medicine." The board also must give the licensee the opportunity to "demonstrate that such records are not necessary" to a determination of relicensure.
Attorney Foran also suggested that while the ADA does not require the Minnesota medical board to have an ADA coordinator and an ADA-related grievance procedure because it has fewer than 50 employees, it strongly recommended that to avoid such difficulties, it designate an individual to fill this role.
In an interview with Psychiatric News last month, Miles said that the Minnesota medical board has indicated that it plans to implement all of the Department of Justice's recommendations, except one. It plans to continue to ask whether, since his or her last license renewal, the physician has been treated for bipolar illness, schizophrenia, or other psychoses. It will continue to treat other just as disabling psychiatric disorders, such as PTSD, with a less strict standard, Miles pointed out, as it does with all physical illnesses.
Miles commented that the Department of Justice's response is "not surprising," because the board's policy was based on the "false presumption that a mental health diagnosis or use of mental health services reliably predicts occupational impairment."
His case is still open, though the board has never suspended his license. "I can't imagine [the board's] taking any action like that," he said. Whatever the medical board decides, Miles will not consider his case closed until the board compensates him for his "extraordinary legal costs," he told Psychiatric News.
Miles also stressed that he was "impressed with the degree of support" he has received from Minnesota psychiatrists, APA, and the medical community in general.