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Americans with Disabilities Act (ADA) May Protect Physicians Wrongfully Compelled to Have Psychiatric Evaluation

Physicians facing allegations of workplace impairment and mandated to submit to a “fitness for duty” evaluation (FFDE), under the threat of losing employment or license to practice medicine, are “pushed onto a train with no brakes and no conductor,” write psychiatrist Robert S. Emmons, M.D., and attorney William D. Goren, J.D. in the spring issue of the Journal of American Physicians and Surgeons.

Health system employers, medical licensing boards, Physician Health Programs (PHPs), and “preferred” physician evaluation/ treatment programs, they state, are “joined by ideology and mutual financial interests in a web of involuntary intervention so nearly seamless that we identify it as the medical regulatory therapeutic complex (MRTC).” The lack of independence means that there are no built-in checks on error and bad faith.

Psychiatrist evaluators of physician fitness for duty must carefully consider their ethical responsibilities to evaluees, these authors write, because evaluators are often the “gatekeepers to a cascading, interlocking series of intervention protocols that can become automatic and unstoppable once initiated.”

The Americans with Disabilities Act (ADA), its implementing regulations, and its guidances all place strict limitations on medical investigation and intervention with allegedly impaired individuals, and yet references to those legal requirements are conspicuously missing in the professional guidelines, policies, and position statements authored by physicians and lawyers in the MRTC, the article states.

The article summarizes important considerations such as: the fiduciary relationship between evaluator and evaluee; the assessment of the appropriateness of referral; objectivity of evidence; informed consent for evaluation; and independence of evaluator from referral sources. The authors assert that physician evaluees must be empowered to choose qualified evaluators who will perform examinations in a manner consistent with their legal and ethical duties.

Given the lack of institutional protections for physicians, the authors recommend early consultation with ADA-knowledgeable counsel. They also assert that an ethical psychiatric evaluation of fitness for duty will always start with a rigorous process to establish appropriateness of referral as a precondition to further investigation.

The Journal of American Physicians and Surgeons is published by the Association of American Physicians and Surgeons (AAPS), a national organization representing physicians in all specialties since 1943.

Read Full Article: https://jpands.org/vol29no1/emmons.pdf

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