Barriers to Mental Illness and Substance Abuse Treatment Among Physicians and the Impact on Patient Care

Balancing the interests of physician privacy and patient safety is a challenge facing the medical profession. Physicians are at a higher risk for suicide compared to the general population. According to the American Foundation for Suicide Prevention, approximately 300 to 400 U.S. physicians commit suicide each year.² Although lack of treatment for depression is a predominant factor in suicide, the majority of physicians who commit suicide were not undergoing psychiatric treatment at their time of death.³ In fact, many deliberately choose not to seek treatment due to concerns regarding a perceived lack of confidentiality and the potentially adverse effects that a diagnosis of mental illness or substance abuse may have on their medical license or medical staff privileges.

State medical boards, the licensing bodies for physicians in each state, maintain an overriding mission to protect patient safety by ensuring, among other factors, that practicing physicians possess the mental and physical health required to provide competent professional services. Hospitals and other health care organizations uphold a similar duty in reference to the physicians to whom they grant medical staff privileges.

Accordingly, as part of the process for determining whether a physician demonstrates the requisite fitness to practice medicine, state medical boards and health care organizations consider the practitioner’s mental health status and any current or past substance abuse. Given that mental illness and substance abuse may inhibit a physician’s ability to provide quality care, licensing boards and health care organizations must consider these factors for purposes of protecting patient safety. However, the professional risk perceived by physicians of a diagnosis of mental illness or substance abuse, which influences them not to seek treatment, disadvantages both physicians and patient safety. Specifically, lack of treatment not only endangers the health and well-being of individual physicians, it also jeopardizes the safety of patients receiving treatment from those physicians, as unresolved mental health or substance abuse issues may lead to negligent care.

This article first provides a general overview of requirements by state medical boards for disclosing mental health and substance abuse issues, identifies relevant federal and state laws governing the confidentiality of such information and its use, and offers one potential solution to assist in striking a balance between encouraging treatment for physician mental health and substance abuse while also protecting patient safety.

Disclosure of Mental Health and Substance Abuse Treatment to State Medical Boards

Requirements for the disclosure of mental health and substance abuse issues as well as treatment for such conditions to state medical boards differ from state to state. Regardless of the specific mandate, any simple disclosure can have an impact on the physician. A 2007 study by the Journal of Medical Licensure and Discipline sought to identify such requirements within all state medical board license applications and any resulting ramifications.⁴ Out of the 35 state medical boards that responded, 37% indicated that diagnosis of mental illness by itself was sufficient to merit sanctioning a physician.⁵ The study also found that 40% of the responding state medical boards considered a diagnosis of substance abuse as sufficient for sanctioning a physician.⁶ Potential sanctions include the revocation or restriction of a physician’s license, probation, or satisfactory completion of a treatment program.

As illustrated by these findings, a substantial number of state medical boards continue to possess the authority to discipline physicians for diagnoses of mental illness or substance abuse, irrespective of whether such conditions impair the physician’s ability to practice medicine competently. While these state medical boards likely rationalize such sanctions as preemptive action seeking to protect patients from substandard care by a physician potentially impaired due to mental illness or substance abuse, many argue that professional licensing and credentials should instead be based on performance (i.e., evidence of impaired ability) as opposed to a diagnosis or treatment. As one example, the American Medical Association House of Delegates proposes that, “physicians who have major depression and seek treatment not have their medical licenses and credentials routinely challenged but instead have decisions about their licensing and credentialing and re-credentialing based on professional performance.”⁷

Missouri’s state medical board, the Board of Registration for the Healing Arts (the “Board”), may sanction a physician for “habitual intoxication or dependence on alcohol,” even if such dependence does not cause adverse professional performance.⁸ Grounds for sanctioning by the Board also include failure by a physician to comply with a treatment program entered as part of a Board order, settlement agreement or licensee’s professional health program.⁹ The Board’s regulations do not address diagnosis of mental illness as a reason for sanctioning medical licenses, but some state medical boards maintain such regulatory authority. The Oregon Medical Board, for one, mandates automatic suspension of a physician’s license if the physician is determined by a court to have a mental illness.¹⁰

Hospitals and other health care facilities may also consider a physician’s mental health or substance abuse issues when determining whether the practitioner possesses the professional competence necessary to be granted privileges. Hospitals typically include such requirements in the organization’s medical staff bylaws, which may also enable them to request treatment records of practitioners who have previously demonstrated behavioral or substance abuse issues.

Applicable Federal and State Laws

While state medical boards, hospitals, and other health care organizations may consider issues regarding a physician’s mental health or substance abuse as part of determining the physician’s fitness to practice medicine, compliance with multiple federal and state laws must be assured.

HIPAA

The most commonly cited federal law governing the confidentiality of health information, the Health insurance Portability and Accountability Act (“HIPAA”), protects most individually identifiable health information held or transmitted by a “covered entity” or its “business associate,” in any form or medium.¹¹ However, while records for mental health or substance abuse treatment implicate HIPAA safeguards, physicians are required pursuant to state licensing board regulations, medical staff bylaws and other health care organizational procedures to grant the release of such information to licensing boards or hospitals, thus eliminating the applicability of HIPAA’s privacy protections.

Federal Regulation Governing Confidentiality of Alcohol and Drug Abuse Patient Records

In addition to HIPAA, special privacy protections are afforded to alcohol and drug abuse patient records under federal regulations. Specifically, federally-assisted substance abuse treatment programs that provide alcohol or drug abuse diagnosis, treatment or referral are prohibited from disclosing patient records in connection with such treatment.¹² These federal regulations “were written out of great concern for the potential use of substance abuse information against individuals, causing individuals with substance abuse disorders to not seek needed treatment.”¹³

In February 2016, the U.S. Department of Health and Human Services finalized vrevisions to these regulations, seeking to clarify that the records of general medical practices and individual practitioners within them could also be covered by 42 C.F.R. Part 2 if they are federally assisted and are identified or hold themselves out as primarily performing substance abuse treatment.¹⁴ While 42 C.F.R. Part 2 generally requires substance abuse treatment programs to obtain written patient consent before sharing treatment records, the finalized rule would allow a patient to permit through written consent the disclosure of treatment records to an integrated care network. This finalized change seeks to “facilitate information exchange within new health care models while addressing the legitimate privacy concerns of patients seeking treatment for a substance use disorder.”¹⁵ Although the purpose behind this finalized rule is well-intentioned, it could cause individuals granting general consent to have their treatment records reach providers they did not want to access their personal information. In particular, physicians obtaining substance abuse treatment who provide general consent may have their treatment records disclosed to providers with whom they work or otherwise risk adverse impact on their careers.

State Confidentiality Laws

States also have laws and regulations that protect the confidentiality of patient medical information. For example, Missouri safeguards the confidentiality of information and records compiled by a mental health program.¹⁶

Rehabilitation Act and Americans with Disabilities Act

The Federal Rehabilitation Act and The Americans With Disabilities Act (as amended) (“the ADA”) provide physicians with protections in certain instances in which their medical staff privileges might be jeopardized by mental health or substance abuse issues. Section 504 of the Rehabilitation Act (“Section 504”) provides that an otherwise qualified individual with a disability shall not, solely by reason of that individual’s disability, be excluded from or subjected to discrimination under any program or activity receiving Federal financial assistance.¹⁷ A plaintiff making a claim under Section 504 must show that a reasonable accommodation is possible.

The ADA prohibits a covered employer from discriminating against an otherwise qualified individual with a disability because of the disability in regard to job application procedures, among other conditions.¹⁸ The ADA also requires a place of public accommodation to make reasonable modifications to its policies, practices and procedures where necessary to ensure full and equal access to its services by disabled individuals. However, accommodations under Section 504 as well as the ADA are not required if doing so would pose a “direct threat” to the health and safety of others.¹⁹ Thus, if a physician poses a “direct threat” to patient safety, the physician is not entitled to protection of Section 504 or the ADA in reference to his or her medical staff privileges.

A Compromise Solution

The regulatory and workplace barriers to physicians seeking treatment for mental illness or substance abuse, whether perceived or real, must be addressed by state medical boards. While protecting patients from impaired physicians should be a primary mission of state boards overseeing medical licensure, that goal would be enhanced by taking affirmative steps to prevent physician impairment. As articulated by the Federation of State Medical Boards (“FSMB”), “the diagnosis of an illness does not equate with impairment.”²⁰ Unfortunately, some state medical boards seemingly do not recognize this distinction, as evidenced by sanctioning of physicians based on diagnosis without regard for whether the diagnosis causes impairment. While mental illness and substance abuse often lead to impairment over a period of time, the threat of such diagnosis by itself inevitably leads many practitioners to avoid treatment altogether. In this way, practices designed to protect patient safety may actually create a risk of harm.

As an alternative, FSMB proposes that state medical boards offer a voluntary track for participation in a physician health program,²¹ enabling physicians to obtain treatment confidentially.²² FSMB goes on to recommend that, “as long as the physician is willing to abide by contracted agreements struck by the physician health program and the physician does not pose a risk of harm to the public, the physician participant can maintain confidentiality.”²³ Such a proposal would incentivize physicians to seek treatment early rather than wait for impairment. Rather than viewing physician privacy and patient safety as competing interests, protecting physician privacy may actually support patient safety by promoting treatment before the onset of impairment. State medical boards and health care organizations should consider the aforementioned FSMB recommendation and other potential solutions to improve physician health and patient safety as a whole.

Biography

Julianne Story, JD, is a partner and David Solberg, JD, is an associate in the Kansas City Office of Husch Blackwell LLP. The information contained in this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and readers are urged to consult their own attorney concerning their own specific situation and any specific legal questions.

Contact: julianne.story@huschblackwell.com