examined the difficulties faced by physicians who have received treatment for mental illness when they try to renew their licenses. In this part, we look into the legal issues raised by state boards' probing of diagnoses and treatment.
To this day, so-called "probing," or overly expansive questions, continue to be asked about mental health in dozens of state medical board licensure and renewal forms.
In fact, questions related to mental health and substance use between 1996-2006, according to Sarah Polfliet, MD, a former forensic fellow in the Psychiatry and the Law Program at the University of California San Francisco.
Even more striking, doctors living in states that ask "overly broad questions" about mental health are more reluctant to seek care, said Liselotte Dyrbye, MD, MHPE, co-director of the Mayo Clinic's in Rochester, Minnesota.
"The questions make a difference," she told 番茄社区 in a phone interview.
In an , Dyrbye and colleagues found only 16 of 48 medical license boards' applications that were seen as appropriate or "consistent," meaning that they either refrained from asking about mental health conditions, or limited their questions to "current impairment" from a mental health condition (within the last 12 months.)
Their approach to designing the study, and what constituted a "consistent" application was informed by recommendations from the American Medical Association, the American Psychiatric Association (APA), the Federation of State Medical Boards (FSMB), and by the ADA.
Dyrbye's group also surveyed about 5,800 physicians, 40% of whom said they were reluctant to seek formal medical care to treat a mental health problem, out of "concerns about repercussions to their medical licensure."
Among physicians working in the 24 states where applications were not "consistent," the authors found a 21% increase in reluctance to seek help for a mental health issue.
This fear or anxiety around seeking mental health treatment is an open secret -- physicians may drive hours to visit a mental health professional outside their community, or pay in cash, or even use a fake name, 番茄社区 was told.
Indeed, when Bayley visited a mental health professional, he was warned that he might not want to use his insurance to avoid a "paper trail."
Katherine Gold, MD, MSW, a family physician and obstetrics and mental health researcher, and an assistant professor at the University of Michigan in Ann Arbor, acknowledged that physicians used these tactics, adding that "the biggest concern is that physicians simply avoid treatment entirely."
"We're holding physicians to super human standards," Pamela Wible, MD, a family physician in Eugene, Oregon, told 番茄社区.
"It's pretty obvious to anyone in the world that we see terrible stuff all day long ... We have to tell people 'Your child died in a car accident' or 'Sorry, [your child] is stillborn,'" she said, adding that anyone who believes these experiences don't take a toll on physician's well being is in denial.
Wible, who wrote a book called , keeps a registry of physician suicides. As of June 17, 2018, she counted 952.
State medical licensure forms allow for a kind of "physician witch hunt," to target those individuals who, in the board's view, aren't cutting it, she said. "Who's cried in the last year? Who's cracked? Who couldn't handle this? Who had a panic attack? Check this box, because we're going to punish you some more."
Questions also extend beyond what would be considered allowable in any other field, Wible said.
(Lawyers that 番茄社区 interviewed for this article pointed out that the legal profession has faced similar obstacles. A for allegedly using his history of mental illness against him.)
"It's nobody's business if you went through a divorce 10 years ago or 2 years ago, and you were depressed and you needed to see a psychiatrist. Why should you have to put that [information] anywhere?" she asked.
Despite all of the equal rights protections that exist for most employees, physicians have had their legal rights "trashed," Wible said, questioning whether physician mental health should be held to higher standards than other professions.
"Should kindergarten teachers [be monitored]? Should your babysitter? Airline mechanics? Before we take a group of people and publicly flog them for having mental health issues ... and violate their human rights, let's just ask the big question: Why are we doing this?" she said.
Facts and Figures
Many medical boards across the country still ask broadly about past mental health diagnosis, treatment, and hospitalizations, said Gold.
"Although many questions nationally violate ADA, there have been few legal challenges which means states have not been compelled to stop this practice," she told 番茄社区 in an email.
Charles Weiner, JD, a disability law attorney in Bensalem, Pennsylvania, agreed.
"All forms of violations of different laws go on all the time, and, until they're challenged, they'll continue to go on," he said.
The inconsistency across states in the way questions are asked further exacerbates the issue, Weiner said.
"[E]ven when a challenge is made to a particular state questionnaire it doesn't necessarily affect all questionnaires," he added.
"Things change in states and in licensing bodies when the field gets active about it," added Jo Anne Simon, JD, a disability rights attorney and New York State Assembly member.
It's hard to effect change one individual at a time, she said in a phone interview.
What's "remarkable" to Weiner is that the American Medical Association, the APA and the FSMB have all issued formal guidelines opposing expansive questions about mental health and yet states don't seem to be responding.
Indeed, the FSMB acknowledged the research suggesting that the licensure processes in some states may "discourage treatment-seeking among physicians" in its on physician wellness and burnout, and has been working to correct the issue.
"The problem is we ask all these questions and when [physicians] respond 'yes' it triggers a request that information has to be asked and garnered to determine whether [the board] has to do something, and that's what scares the doctors," said Arthur Hengerer, MD, director and past chair of the FSMB board of directors. "The questions don't often serve the purpose that they're intended for, and the unintended consequences are that doctors don't go get help."
Based on the information it obtains, a board may impose restrictions on an individual's clinical practice; may require mandatory clinical proctoring; or even mandatory psychiatric evaluations to determine a physician's competency, Dyrbye said, citing media reports and the scientific literature.
In many parts of the country, state medical boards are open to the public, or minutes from their meetings are recorded in ways that can be publicly disclosed, she added.
Because of the concern that these questions may prove a deterrent to seeking help, the FSMB recommended that state medical boards reconsider how and what they ask physicians about their mental health on first-time state medical license applications and on renewal forms.
"What we're saying is you shouldn't ask anything about the diagnosis of a mental health condition, or you shouldn't ask anything [about a physician's] past history," Hengerer said.
The focus should be on current impairment not diagnoses, he stressed.
The recommendations do give states some wiggle room. For states that feel compelled to ask some questions about mental health or substance use, the FSMB recommends those questions be limited to the last 2 years.
In its report, the FSMB also encouraged state medical boards to establish "safe havens," so that physicians who are "under treatment" and "in good standing" with a recognized physicians health program (PHP) or other qualified care provider, would not have to report a diagnosis.
"Our primary responsibility is to protect the public," Hengerer said, but he noted the group also strives to treat physicians fairly and to follow "due process."
"We deal with a number of physicians who really have committed acts of misconduct, and they need to be dealt with by law and appropriate actions," he explained. "But there's this other whole group of physicians... they're simply burned out, and their own health and wellness is impacted... and state medical boards, we don't want to do bad things to these people."
While the FSMB may carry influence with some members, its recommendations are nonbinding on state boards.
"We can't go to them and say, 'You've got a bad question there, you gotta change it,'" he said.
In some states, the medical board licensing questions are under the purview of state government, explained Dyrbye.
Next week: State board officials get their say