The coauthors are eternally grateful for their friend and colleague James T. Jones, who passed away on May 3, 2018. Dr. Jones was Professor of Law, Louis D. Brandeis School of Law, University of Louisville, Louisville, Kentucky. Dr. North is Medical Director, The Altshuler Center for Education & Research at Metrocare Services, Dallas, Texas, and The Nancy and Ray L. Hunt Chair in Crisis Psychiatry and Professor of Psychiatry, Director, Division of Trauma & Disaster, The University of Texas Southwestern Medical Center, Dallas, Texas. Dr. Vogel-Scibilia is Assistant Clinical Professor, Chatham University, Pittsburgh, Pennsylvania. Dr. Myers is Professor of Clinical Psychiatry, SUNY Downstate Medical Center, Brooklyn, New York. Dr. Owen is Director, Center for Mental Healthcare & Outcomes Research, Central Arkansas Veterans Healthcare System, Professor of Psychiatry, University of Arkansas for Medical Sciences College of Medicine, and Professor of Epidemiology, University of Arkansas for Medical Sciences College of Public Health, Little Rock, Arkansas.
The coauthors are eternally grateful for their friend and colleague James T. Jones, who passed away on May 3, 2018. Dr. Jones was Professor of Law, Louis D. Brandeis School of Law, University of Louisville, Louisville, Kentucky. Dr. North is Medical Director, The Altshuler Center for Education & Research at Metrocare Services, Dallas, Texas, and The Nancy and Ray L. Hunt Chair in Crisis Psychiatry and Professor of Psychiatry, Director, Division of Trauma & Disaster, The University of Texas Southwestern Medical Center, Dallas, Texas. Dr. Vogel-Scibilia is Assistant Clinical Professor, Chatham University, Pittsburgh, Pennsylvania. Dr. Myers is Professor of Clinical Psychiatry, SUNY Downstate Medical Center, Brooklyn, New York. Dr. Owen is Director, Center for Mental Healthcare & Outcomes Research, Central Arkansas Veterans Healthcare System, Professor of Psychiatry, University of Arkansas for Medical Sciences College of Medicine, and Professor of Epidemiology, University of Arkansas for Medical Sciences College of Public Health, Little Rock, Arkansas.
The coauthors are eternally grateful for their friend and colleague James T. Jones, who passed away on May 3, 2018. Dr. Jones was Professor of Law, Louis D. Brandeis School of Law, University of Louisville, Louisville, Kentucky. Dr. North is Medical Director, The Altshuler Center for Education & Research at Metrocare Services, Dallas, Texas, and The Nancy and Ray L. Hunt Chair in Crisis Psychiatry and Professor of Psychiatry, Director, Division of Trauma & Disaster, The University of Texas Southwestern Medical Center, Dallas, Texas. Dr. Vogel-Scibilia is Assistant Clinical Professor, Chatham University, Pittsburgh, Pennsylvania. Dr. Myers is Professor of Clinical Psychiatry, SUNY Downstate Medical Center, Brooklyn, New York. Dr. Owen is Director, Center for Mental Healthcare & Outcomes Research, Central Arkansas Veterans Healthcare System, Professor of Psychiatry, University of Arkansas for Medical Sciences College of Medicine, and Professor of Epidemiology, University of Arkansas for Medical Sciences College of Public Health, Little Rock, Arkansas.
The coauthors are eternally grateful for their friend and colleague James T. Jones, who passed away on May 3, 2018. Dr. Jones was Professor of Law, Louis D. Brandeis School of Law, University of Louisville, Louisville, Kentucky. Dr. North is Medical Director, The Altshuler Center for Education & Research at Metrocare Services, Dallas, Texas, and The Nancy and Ray L. Hunt Chair in Crisis Psychiatry and Professor of Psychiatry, Director, Division of Trauma & Disaster, The University of Texas Southwestern Medical Center, Dallas, Texas. Dr. Vogel-Scibilia is Assistant Clinical Professor, Chatham University, Pittsburgh, Pennsylvania. Dr. Myers is Professor of Clinical Psychiatry, SUNY Downstate Medical Center, Brooklyn, New York. Dr. Owen is Director, Center for Mental Healthcare & Outcomes Research, Central Arkansas Veterans Healthcare System, Professor of Psychiatry, University of Arkansas for Medical Sciences College of Medicine, and Professor of Epidemiology, University of Arkansas for Medical Sciences College of Public Health, Little Rock, Arkansas.
The coauthors are eternally grateful for their friend and colleague James T. Jones, who passed away on May 3, 2018. Dr. Jones was Professor of Law, Louis D. Brandeis School of Law, University of Louisville, Louisville, Kentucky. Dr. North is Medical Director, The Altshuler Center for Education & Research at Metrocare Services, Dallas, Texas, and The Nancy and Ray L. Hunt Chair in Crisis Psychiatry and Professor of Psychiatry, Director, Division of Trauma & Disaster, The University of Texas Southwestern Medical Center, Dallas, Texas. Dr. Vogel-Scibilia is Assistant Clinical Professor, Chatham University, Pittsburgh, Pennsylvania. Dr. Myers is Professor of Clinical Psychiatry, SUNY Downstate Medical Center, Brooklyn, New York. Dr. Owen is Director, Center for Mental Healthcare & Outcomes Research, Central Arkansas Veterans Healthcare System, Professor of Psychiatry, University of Arkansas for Medical Sciences College of Medicine, and Professor of Epidemiology, University of Arkansas for Medical Sciences College of Public Health, Little Rock, Arkansas.
Substantial numbers of medical students and physicians live with some form of mental illness. Over the years, many medical licensure boards have asked physician medical licensure applicants with Doctor of Medicine (MD) degrees intrusive questions about whether they have any psychiatric history. This has discouraged many who need psychiatric treatment from seeking it because of fear of the questions. Gradually, court decisions and the United States Department of Justice have established that such questions violate the Americans with Disabilities Act (ADA). The 2014 Louisiana Supreme Court Settlement Agreement set definite limits on law licensure mental health questions, followed by a least one licensing body revising its physician licensure questions to be consistent with ADA standards. In this article we examine the current medical licensure questions from each state and the District of Columbia about the mental health of applicants and discuss their validity under ADA standards. Our original investigation of these questions found that the majority still ask questions that are unlikely to meet ADA standards. The judicial and Department of Justice developments, however, may compel them to abandon these questions. If not, legal action will enforce ADA compliance. This change will significantly benefit applicants who need psychiatric treatment.
Professional licensing bodies in medicine, law, dentistry, nursing, psychology, and other regulated professions are obligated to protect the public from professionals who are impaired by serious mental illness (like several other recent articles, this article does not include professionals impaired by substance abuse). 1 , – , 3 This duty seemingly can conflict with the public policy objective of the Americans with Disabilities Act (ADA), 4 which seeks to prevent discrimination against those with disabilities, including psychiatric disabilities. 3,5 Specifically, the ADA applies to professional licensing bodies 6 , – , 8 ; historically, a number of these groups have not acted in accordance with it. Title II of the ADA prohibits discrimination by public entities on the basis of disability. In particular, the regulations enforcing the law say that a “public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disability to discrimination on the basis of disability.” 8 Nor can a public entity, such as a licensure board, “impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability … unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 5
This article focuses on questions asked of applicants for initial medical licensure for physicians with Doctor of Medicine (MD) degrees about any psychiatric history. For context, this article also reviews how questions about licensure have been handled for attorneys. Throughout this article, we distinguish between competently functioning professionals who have lived with a psychiatric disorder or who are being treated for a mental health condition versus physicians whose professional functioning is currently impaired for psychiatric reasons. We argue that only those who are currently impaired should be prohibited from working as licensed professionals or have other measures taken to ensure quality and safety of care if they are allowed to practice.
This article first reviews the prevalence of psychiatric illness among medical students and physicians. It then turns to the stigma faced by those so afflicted. Next, it reviews the legal precedents regarding the validity of licensure questions about these concerns with a focus on the seminal 2014 Louisiana Supreme Court Settlement Agreement. This review is followed by a detailed presentation of the questions currently asked by the medical licensure bodies in the 50 states and the District of Columbia and an evaluation of their validity under the ADA.
At the outset, it is essential to differentiate the terms illness and impairment. Unfortunately, some regulatory agencies consider illness as synonymous with impairment. Illness is the existence of a disease. Impairment is a functional classification and, as defined by the American Medical Association (AMA), refers to “the inability to practice medicine with reasonable skill and safety due to 1) mental illness, 2) physical illnesses, including but not limited to deterioration through the aging process, or loss of motor skill, or 3) excessive use or abuse of drugs, including alcohol.” 9
Numerous sources attest to the relatively high prevalence of mental illness in the medical profession, often beginning during medical training. The mental health of entering medical students, which has been demonstrated to be similar to that of the general population on entry into medical school, declines significantly in the next two years. 10 , – , 12 One study found that at the end of their first year, 57 percent of medical students had moderate to severe symptoms of anxiety and 27 percent have moderate to severe symptoms of depression. 10 Depressed medical students were more likely than their peers to seriously consider suicide. 13 Female medical students had significantly higher levels of depression, anxiety, and psychological distress than their male peers, and single students had higher depression rates than married students. 14 Medical students are less likely to seek mental health care than the general population, even though they have better access to it 12 : only 22 percent of depressed medical students and 42 percent of those with suicidal ideation utilize mental-health services. 15
The seeds of mental illness planted in medical school bear fruit among practicing physicians. 10 Many medical residents have problems with distress and burnout. 11,16 Many physicians feel social isolation and do not take proper care of themselves. 17 Some follow dangerous approaches to care such as self-prescribing antidepressant medications. 12 The suicide rate among male physicians is 40 percent higher than in men in the general population, and the rate for women physicians is 130 percent greater than among women in the general population. 17 , – , 19 Every year 300–400 physicians and medical students die by suicide, a number equal to several medical school classes. 20
Numerous medical students and practitioners who live with mental illness stay in the shadows due to fear of stigma. People with psychiatric disorders are the most stigmatized group in contemporary society; slurs against those with mental illness endure, and medical students and physicians are not exempt. 21
Medical students and professionals with mental illness face particular stigma concerns. 22 They may pay cash for mental health treatment rather than use their health insurance to avoid having a record of their care appear in an insurance database, and may hide their faces lest someone they know recognize them while they are in their psychiatrist's waiting room. 23 Students who have received psychiatric treatment have reduced prospects for residency placements. 15 Practicing physicians with histories of psychiatric disorders or counseling for psychosocial difficulties encounter discrimination in hospital privileges, health insurance, and malpractice insurance. 15 Fear of stigma prevents 30 percent of depressed first- and second-year medical students from using mental health services. 12
Probably the most pervasive stigma experienced by medical professionals occurs in medical licensing. 24 Over the last two decades, medical licensing boards increasingly have asked about the psychiatric history of applicants. For example, a 1998 study found that 75 percent of boards did so in 1993 and 80 percent in 1996. 25 A 2009 review of applications from 2005 found that the vast majority of boards asked such questions and that many of the questions were unlawful under the ADA. 26 A 2008 article on 2006 applications had similar findings, 27 as did a 2017 article on 2013 applications. 28
Medical licensing bodies traditionally have required applicants to disclose any history of psychiatric difficulties or receiving treatment via intrusive questions as described below. This practice departs substantially from the requirements of applicants undergoing non-psychiatric medical care. 28 , – , 30 The mental health questions typically focus on whether the applicant merely has a history of a psychiatric diagnosis or has ever received treatment for mental illness, not solely on conduct that actually indicates a reason for concern. The applicant may fear that nondisclosure of a psychiatric illness in a licensure application followed by a later recurrence of symptoms in the subsequently licensed physician may result in accusation by the licensure body that the applicant filed a false application, presenting potential dire professional licensure and legal consequences. This could compel the applicant to disclose information that is protected by the ADA, such as a problem resolved years before (e.g., an adolescent episode of depression in the case of a now psychiatrically healthy 40-year-old applicant). A positive response leads to additional questions and a demand for access to all of the applicant's mental health records from psychiatrists, therapists, and hospitals. 15,29 The Mississippi board mandates that: By submission of an application for licensing to the Board, an applicant shall be deemed to have given his or her consent to submit to physical or mental examinations if, when and in the manner so directed by the Board and to waive all objections as to the admissibility or disclosure of findings, reports or recommendations pertaining thereto on the grounds of privileges provided by law. The expense of any such examination shall be borne by the applicant.
This questioning not only may deter applicants from seeking a license there, but it is also inconsistent with the views of the American Psychiatric Association (APA), which says that having a psychiatric history is not an accurate predictor of mental fitness and, accordingly, status questions are inappropriate and irrelevant to the question of current impairment. 5,31 A 2015 Position Statement from the APA recommended that medical licensing bodies not ask applicants about past diagnosis and treatment of mental disorders. 32 Medical Society of New Jersey v. Jacobs barred similar questions, 1 as have several law licensure cases. 33 , – , 35
The AMA has also taken a stand on medical licensure questions pertaining to mental health. In 2009 its Section Council on Psychiatry proposed a resolution against medical licensing bodies' questions about past mental illness, and it was approved with wide support. 36 In November 2016 the AMA House of Delegates unanimously approved a Section Council on Psychiatry resolution asking medical licensing boards not to ask questions about history of mental illness. This was at least in part because such questions may deter medical students and trainees from seeking needed mental health treatment. 37 Earlier in 2016 the AMA Council on Medical Education endorsed as a model Colorado's “safe haven” process. 38 Under it, licensure applicants who are participating in the Colorado Physician Health program need not report having a psychiatric condition to the Colorado medical licensing board despite its questions about having such a condition. 39
Gradually, because of the ADA, courts and the United States Department of Justice (DOJ) have attacked these questions by professional licensing bodies and the process to which they give rise. This effort has been buttressed by the educational efforts of the AMA, the APA, and others that diagnosis does not equate with disability. Yet, some professional licensing bodies still use these questions. The result can be that applicants for medical licenses do not seek mental health treatment they need so as to avoid answering “yes” to the application questions. 15,29 There is evidence that questions by medical boards may deter students and trainees from getting help. 40,41 Pertinent is a 2016 article about a survey of more than 2,000 female physicians and the impact of diagnosis and treatment questions on them. 19 Half of them believed that at some time they had met the criteria for a psychiatric disorder but had not sought treatment for it. A number of those physicians reported this was because of their concern over mental health licensure questions. 19 Although the participants in this study were physicians, not medical students, this finding may also apply to students.
Ironically, this deterrence effect can increase the number of professionals with untreated psychiatric illness who thus pose a risk to their patients. 30,42 They also pose a risk to themselves. A qualitative research study in which the researcher interviewed family members of physicians who had died by suicide disclosed that a significant minority of the decedents (34 physicians total) had killed themselves without ever receiving any treatment whatsoever. The interviewees described their physician loved ones as terrified that seeking mental health care would preclude them from being able to obtain or renew their medical licenses. 43
Medical Society of New Jersey v. Jacobs 44 was one of the earliest cases addressing the ADA and licensing. In that unpublished decision, the court addressed questions the medical licensing board asked of applicants. The questions asked the applicants about any psychiatric problems. An affirmative response required a detailed explanation. The court discussed the ADA in detail and held that broad questions about diagnosis rather than conduct were unlawful as they led to extra investigation and invidious discrimination of those with disability status. The court concluded that the licensing board “may not … carry out its duties in a fashion that discriminates against applicants with disabilities based on the status of the applicants.” 44
Perhaps not surprisingly, the body of law on questions involving a person with a mental illness obtaining a law license is much more developed than licensing in the medical arena. Every state bar in the United States requires applicants to prove they have good moral character and are fit to practice law, and one of the areas upon which character and fitness committees focus is a psychiatric history. The courts are likely to turn to decisions in the content of law licensure as related precedent for medical licensure questions. Indeed, several articles in medical journals have viewed law and medical licensure precedents as being interchangeable. 5,26,27,32
Many state bars have created problems for applicants with a history of psychiatric illness based solely on their having been so diagnosed rather than on their having had conduct problems. For example, some bar examiners presume that someone who has had a psychotic episode is unfit to practice law, notwithstanding those who capably can practice despite having a history of schizophrenia. 30 The examiners' underlying premise was disproved by a recent study demonstrating that attorneys who have a history of psychiatric illness are unlikely to be disciplined by the bar. 1,45 Thus, not only are mental health licensure questions not predictive of future misconduct, their predictive value is so low as to be unreliable. 1,2
A national survey of bar questions disclosed a wide variety ranging from broadly intrusive into the private life and psychiatric history of an applicant to intrusive to minimally intrusive. 46 At their utmost, these questions ask, for example, if an applicant has ever been hospitalized for a mental illness, an open-ended question that can force disclosure of a problem resolved years before. The inquiries may be more limited in scope, such as asking about a diagnosis within five years of an application, but still potentially inhibiting admission to practice of individuals who are currently in good mental health. State bars classified as minimally intrusive ask no mental health questions at all. The ADA-inspired trend is to move away from very broad questions, but some state bars continue to ask them.
Another important point is that the bar should not ask questions that penalize, through intrusive and humiliating disclosures, the applicant who prudently obtained treatment while the applicant in psychological denial about his or her … mental dysfunction can avoid making any disclosure. Rather than exposing applicants to sweeping requests for the candidates' own explanations of their health status or compelled breaches of doctor–patient confidentiality, bar officials should drastically curtail investigations into health and disability conditions (Ref. 46, p 42).
The DOJ has agreed with this approach and has distinguished specific questions that are permissible under the ADA about a bar applicant's past performance or conduct problems attributable to having a mental illness from questions that do not conform to ADA standards by asking broadly about an applicant's psychiatric diagnosis. 47 Additionally, hypothetical questions (asking if a mental illness could affect their ability to practice safely) have been faulted for requiring applicants to perform the impossibility of predicting the future. 48 Because such questions are inconsistent with ADA standards, various courts have invalidated hypothetical questions on law licensure applications. 1
In contrast with the dearth of published cases in the medical licensure setting, numerous applicants for law licenses have challenged the consistency of mental health licensing questions with ADA standards. Although some challenges have been resolved without litigation, several lawsuits have been filed.
Clark v. Virginia Board of Bar Examiners 49 was a pivotal early decision. It featured a challenge to a licensure question that asked: “Have you within the past five years been treated or counseled for any mental, emotional or nervous disorders?” The plaintiff argued the question was overbroad and not an effective way to identify unfit applicants, citing the APA position against status questions. The court concluded the question was in fact overbroad, ineffective, and had a strong deterrent effect in keeping law students from seeking needed counseling, and the question was invalidated for violating the ADA. A number of other cases in both state and federal courts threw out broad questions. 33 , – , 35,50 The DOJ's battle against state bar ADA violations culminated in a Settlement Agreement with the Louisiana Supreme Court that invalidated such overly broad diagnosis and treatment questions. 51 Questions identified as objectionable included: Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner? 1
In the words of the DOJ: The settlement agreement ensures the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession as required by the … [ADA]. It prohibits the court from asking unnecessary and intrusive questions about bar applicants' mental health diagnosis or treatment. It also requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities. 52
Overall, the Louisiana Supreme Court accepted the DOJ's finding that a number of the Court's practices were contrary to the ADA. It agreed to discontinue these practices and to follow the ADA as interpreted by the DOJ in the future when considering bar admission applications. In addition, the Court agreed to pay a total of $200,000 in compensation to seven individuals for actions alleged to be discriminatory. The Agreement was considered a major success for both the DOJ and for the disabled applicants protected from the Court's previous actions that were contrary to the ADA.
The Louisiana Settlement Agreement is not binding precedent in jurisdictions other than Louisiana. 2,48,53 Further, a Trump Administration DOJ may not enforce the ADA principles that led to it as readily as the Obama Administration did. This may mean that private litigation will be far more important in licensure cases than DOJ action, perhaps led by groups like the Bazelon Center for Mental Health Law, which filed the initial complaint against the Louisiana bar examiners that led to the Settlement Agreement, 48,54 or the American Civil Liberties Union (ACLU), which filed a case in Indiana. 55
Because of the Louisiana Settlement Agreement, the National Conference of Bar Examiners (NCBE) extensively rewrote the mental health questions on the standard application it provides to state-level character and fitness committees for their consideration. The new questions no longer inquire whether an applicant has a specific psychiatric disorder, and they are limited to asking: Do you currently have any condition or impairment (including, but not limited to, substance abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical, and professional manner? 1
A number of law licensure bodies have adopted the new questions, but some have not done so. 1,2 It remains to be determined, however, whether this question conforms with ADA standards. 1,2 Failure to do so risks action by the DOJ or litigation by applicants, especially those aware of the $200,000 Louisiana settlement award. 5 Alternatively, they can follow the lead of the states whose bar character and fitness committees have stopped asking mental health questions entirely. 1,2 This is a viable option given that there is no evidence that states that have discontinued asking mental health questions have seen an increase in disciplinary actions attributable to mental illness. 1,2
Current mental health questions on initial (not renewal) physician licensure application questions from application forms for licensing bodies were collected in 2017 for all 50 states and the District of Columbia. This information was collected from licensure board web sites and the Federation of State Medical Boards (FSMB) site. Two authors (S.V., R.O.), reviewed the questions and separately categorized them, then cross-checked the questions and result categories for accuracy and constructed a table (Table 1) to present results of licensure questions organized by type of question and consistency with ADA standards. If licensure questions from a given licensing body fit multiple categories, they were listed more than once in Table 1.