Commentary: Granting Medical Licensure, Honoring the Americans With Disabilities Act, and Protecting the Public: Can We Do All Three?

Abstract

Physicians suffer from the same illnesses as others do, and some of these illnesses may limit their ability to safely practice medicine. Individuals with of some of these same illnesses may also suffer from denial, blinding them to their limitations. Data support that, while many of these physicians do voluntarily limit their practices or seek help, not all do. Schroeder and colleagues demonstrate in this issue that in their attempts to protect the public, state medical licensing boards may have asked questions prohibited by the Americans with Disabilities Act. They point out an ethical tension between nonmaleficence (protecting the public from harm) and individual autonomy (respecting the rights of each individual physician), amplified by the different approaches lawyers and physicians use to address conflicts. The classic legal approach is adversarial, whereas the classic medical approach is collaborative. Both are valid approaches, but neither works well in tandem with the other. The time has come for all sides of the licensure debate to acknowledge the legitimacy of the others’ concerns, to recognize the different approaches they each take, and to work together with others to find a common solution. The solution must allow boards to identify individuals with illnesses that impair their ability to practice safely and that also lead to denial of these very limitations. The solution must respect the autonomy of the individual licensee with a disability who can practice safely with an accommodation and who respects the need for that accommodation. The solution must protect the public.

Documented licensure of physicians began in the early 13th century, when the faculty at Salerno first began issuing physicians practice licenses.¹ In 1873, Texas passed the first modern medical practice act requiring that all practicing physicians be licensed by the state.² From that time forward, state medical licensing boards have faced diverse challenges and pressures. Historically, medicine is a profession, a calling requiring specialized knowledge and often lengthy training. Professions in this sense are traditionally self-regulating and dedicated to the service of others. As described by Roscoe Pound,³ dean of Harvard Law School, “The term [professionalism] refers to a group pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.” Today, state medical boards are responsible for licensing physicians, in this way providing regulation within the profession.

Medical boards are regulatory bodies of the state or territorial government, typically of the executive branch. In this form, they serve to protect the welfare of the citizens. As agencies of the state government, licensing boards are not fully independent bodies. Their power derives from the authority granted to them by law, typically the Medical Practice Act. Through this act, boards are typically charged with fulfilling the following ideals:

1. The practice of medicine is a privilege granted by the people acting through their elected representatives. It is not a natural right of individuals.
2. In the interests of public health, safety, and welfare, and to protect the public from the unprofessional, improper, incompetent, unlawful, fraudulent, and/or deceptive practice of medicine, it is necessary to provide laws and regulations to govern the granting and subsequent use of the privilege to practice medicine.
3. The primary responsibility and obligation of the state medical board is to protect the public.⁴

Virtually all practice acts include language similar to this.

In function, medical boards typically are reactive agencies. They respond to complaints about practitioners, but they do not conduct proactive investigations. Boards rarely go out and set “stings” to trap physicians. For a variety of reasons, it is only when a problem has already occurred, when a patient is aggrieved or harmed, that a board intervenes.

We would like to believe all physicians always act in accordance with Dr. William J. Mayo’s exhortation at the 1910 graduation of Rush Medical College: “The best interest of the patient is the only interest to be considered.” This is important, for as is true of many professions, we have unique rights and responsibilities as physicians. We are allowed to ask questions about the most intimate details of a patient’s life, details patients often do not even share with their partners. We have the right to touch people in ways and in places that no one else does. We have the privilege to do things that, were anyone else to do them, would be considered a felony. For example, when an attacker cuts his victim with a knife, he or she goes to jail; when a surgeon cuts open a patient, he or she is simply doing his or her job. How do we earn these privileges? It is part of a societal contract, the fiduciary responsibility that comes from being a professional. In theory, medical boards maintain this societal contract through the licensure process, but what happens when an applicant does not meet the requirements for licensure?

Illness and Denial

As human beings, conditions arise that blind us to our own limitations, and we can enter a state of denial. For example, the National Council of Alcoholism and Drug Dependence notes that alcoholism “is characterized by … distortions in thinking, most notably denial.”⁵ Those of us in the medical field recognize that denial is a characteristic of several mental illnesses, including mania and psychotic illnesses. “Individuals with a Manic Episode frequently do not recognize that they are ill and resist efforts to be treated.”⁶ This occurs in other illnesses as well. A physician experiencing denial about his or her mental health may not seek needed treatment or may fail to report limiting disabilities on licensure applications.

Data from board disciplinary records support that not all physicians who have illnesses that prevent them from practicing safely voluntarily refrain from practice. In Minnesota, there is a state agency, the Health Professionals Services Program (HPSP), which is separate from the medical board and follows and treats health care professionals of all disciplines who have medical impairments. An individual can self-report to HPSP, and, if one does, no information is passed on to that individual’s licensing board; the individual keeps his or her license intact. At the end of fiscal year 2007, HPSP was following 158 licensed physicians.⁷ Of these, 64% (101) reported themselves to HPSP; the remainder were referred by others. Of more concern, 21% (33) were referred to HPSP under board discipline. In other words, 21% of the physicians followed by HPSP were there in part because someone was aggrieved enough by the physician’s behavior to file a complaint with the state medical board and because, after investigation, the board determined the illness was so severe as to violate the Medical Practice Act. Of most concern, all of these 33 physicians referred to HPSP under board discipline had previously been in HPSP and been dismissed for failing to comply with the program. These 21% could have stayed voluntarily in HPSP and avoided contact with the board; they could have voluntarily restricted their practice. They did not. They continued to practice medicine, and, as a result, patients were harmed.

These situations frustrate the public. Advocacy groups rank boards, listing them by percentage of doctors who suffered “serious disciplinary action.” Boards that do not restrict enough licenses are ranked lower and are labeled “Worst States.”⁸ On the other hand, members of medical boards are aware of the debates surrounding physician workforce shortages. We best serve the citizens of our state by ensuring that all physicians who can practice safely are doing so.

Without a doubt, stigma is associated with many illnesses that may—or may not—limit one’s ability to practice medicine safely. Board members are human beings, and they are subject to the same frailties as others, including irrational fears and misunderstanding. Despite the fact that science has demonstrated that psychiatric illnesses have genetic origins like other illnesses, advocates needed to lobby for more than a decade before Congress finally passed the Paul Wellstone Mental Health and Addiction Equity Act in the fall of 2008, requiring insurance plans to offer the same coverage for psychiatric illness as they do for all other illnesses.

As a psychiatrist, I spend much time advocating on my patients’ behalf, helping them to fight the stigma associated with their illness. Between manic episodes, an individual with bipolar disorder can be a world-class clinician, practicing incredibly competent and safe medicine. Unfortunately, we know that concern about loss of licensure or privileges may prevent physicians from seeking mental health care, even when they recognize their need for it.⁹

On the basis of my experience as a board member, I want all physicians who are capable of safely practicing to do so. Yet, I know there are physicians with illnesses that prevent them from practicing safely and who have not voluntarily limited their practice. My experience and the data demonstrate this, but how do we most effectively address it?

The Ethical Tension

Schroeder and colleagues¹⁰ raise an important question. They point out that many medical boards, in their efforts to understand which physicians have illnesses that may limit their practice, may have overstepped the legal bounds of the Americans with Disabilities Act (ADA) with the questions on their licensure applications.

By pointing this out, Schroeder et al highlight a very important ethical tension between nonmaleficence and individual autonomy. There are physicians who have illnesses that may impair their ability to practice safely. These illnesses may be associated with denial, blinding the physician to his or her own limitations and causing the physician not to report these limitations to the board. The public expects, and the board is obligated to ensure, that physicians with unrestricted medical licenses can practice medicine safely, but physician applicants who are in denial about their own limitations may not be able to offer the board accurate information to make an informed licensure decision.

Of course, there are also physicians who have illnesses that may not impair their ability to practice safely. These physicians may be keenly aware of and respect their limitations and have adaptations that allow them to practice safely. These physicians expect, and the ADA requires, that they not be subjected to undue hindrance in being able to practice safely. These physicians have the right to obtain a license without being subject to an undue burden.

The challenge lies in reconciling boards’ responsibility to identify applicants with illnesses that prevent them from practicing safely with its obligation to uphold the ADA and not prohibit the licensure of physicians whose illnesses do not affect their practice.

Medicine Versus Law: How Can We Help Everyone Win?

Whenever there is an ethical tension, the solution becomes complicated. Almost never do we find a simple “right answer.” There are extremes to addressing this specific tension. One extreme is for boards to avoid overstepping ADA bounds by making no inquiries about health and only responding to complaints. This does not protect the public. The other extreme is for boards to question physicians aggressively about their health to uncover any potential red flags. This does not respect the rights of physicians with disabilities.

This tension is amplified by the historic difference in how the fields of law and medicine resolve disputes. The classic legal model is the advocate model, where an advocate for each side aggressively argues his or her point of view. From the tension between these two sides, justice may emerge. The classic medical model is collaboration, where all parties discuss their perspectives back and forth and, from these discussions, the right answer may emerge. Each model has benefits and drawbacks, and each may be more effective in certain situations. The practical difficulty occurs when we try to solve problems by using both models simultaneously. It does not work.

Resolving the tension between protecting the public and protecting the rights of impaired individuals requires Solomonic wisdom. The time has come for all sides of this argument to begin to work together in collaboration. To do so, both sides will need to acknowledge that the other has legitimate concerns and interests. Solutions must be found that allow boards to identify individuals with impairments that limit their ability to practice safely. These solutions must recognize that these individuals may be in denial of their limitations and may not voluntarily report them. However, solutions must not unduly burden individuals with disabilities who can practice safely. Attempts to advocate on behalf of one side without respecting the legitimate needs and concerns of the other will only result in resistance and conflict.

If all sides collaborate and share knowledge, they will come to a better solution and be willing to act on the solution.¹¹ The classic adversarial model has a winner and a loser. For us to address all the concerns, all sides need to believe their concerns are understood and appreciated and that no one loses. The legal community does use this technique, in mediation. The time has come for all sides to step back and decide how, together, we can address the concerns. All sides must acknowledge that others have valid concerns. All sides must agree that if the concerns are valid, we need a solution that addresses all the concerns and that we do not have “winners” and “losers.” All sides must acknowledge that there may be strong feelings present but that we can have strong feelings without impugning the motives of each other. Working together, we can find solutions that will be better for all—the public, our patients, and our professions.