IMPAIRED PROFESSIONALS

Impairment is a widespread problem of professional life. An impaired member of any profession creates legal and ethical difficulties for himself or herself, and can cause harm to others as well. For these reasons, the impaired professional merits serious attention (Boisaubin and Levine; Allan).

Defining the Problem

In common usage, the word impair connotes worsening or deterioration. An impairment diminishes the value or excellence of an individual or item. An impaired person has deteriorated significantly enough to endanger his or her capacity to function adequately.

When impairment refers to a professional, its meaning becomes more technical and restrictive. Because professions are self-regulating and resist external oversight, professionals largely determine for themselves what impairment means. Things that might impair an individual in the eyes of the lay community might not be defined as impairments within the professional community.

Typically, the impaired professional is one whose ability to function in his or her professional capacity has deteriorated because of a physical or mental difficulty. Impairing conditions traditionally have included drug dependency, alcohol dependency, illness, and disability (physical as well as mental). The American Medical Association (AMA), for example, defines the impaired physician as one "unable to practice medicine with reasonable skill and safety to patients because of physical or mental illness, including deteriorations through the aging process or loss of motor skill, or excessive use or abuse of drugs including alcohol" (La Puma and Schiedermayer, p. 91). A professional also may be regarded as impaired if abilities are significantly compromised as the result of stress or other factors (Nelson and Jennings).

While impairment raises concerns about an individual's professional competence, being impaired is not necessarily the same as being incompetent. An incompetent professional lacks the minimally acceptable levels of knowledge and skill needed to practice within a field. Such a person once may have been competent, then fails to maintain adequate knowledge and skill. One can be incompetent without being impaired.

Impairment's Social and Professional Implications

The impaired professional poses a serious problem to self and others. An impairment may adversely affect the professional's relationships with colleagues, patients and families, and the professional's institution or workplace. It can affect a professional's relationship with friends and family. An impaired professional may engage in self-destructive behavior.

Impairment is a grave problem to those who put trust in professionals and expect them to be competent and to protect the public against impaired practitioners. Members of the public seldom possess the expertise needed to evaluate the quality of services being provided to them. Their potential vulnerability becomes even more significant when other factors (e.g., being sick or injured, being in an unfamiliar setting, or being a member of a different socioeconomic class) make it difficult for a layperson to question a professional's assistance. People have a right to expect competent help from an unimpaired professional.

If severe, unrecognized and unaddressed professional impairment can spell disaster. The impaired professional can cause severe harm, even death, to others. This can give rise to legal liability for the professional, colleagues, coworkers, and the institution in which the impaired professional works.

The Persistence of Impairment

For many reasons, impairment is an enduring, ubiquitous phenomenon of professional life. First, instead of responsibly discharging the responsibility of self-regulation, professionals sometimes abuse their power or office. Second, professionals may protect inept colleagues. Third, professional impairment does not receive much attention in the education and training of those who are entering a profession. While medical students may be quick to identify and chastise a patient who has a serious emotional or drinking problem, they are less likely to learn how to recognize or respond constructively to self-impairment or impairment in a colleague. Fourth, some professions foster impairment. The idealized image of the competitive, self-reliant practitioner drives professionals to succeed and to work in isolation, patterns of behavior that are conducive to impairment.

Even a medical professional who knows about professional impairment may not recognize it (Boisaubin and Levine). Medical professionals still are relatively autonomous practitioners, which means that they tend to be self-supervising. When contact is occasional, they may neither have the opportunity to discern that a colleague is impaired nor feel responsible for doing something if they suspect it. When contact is frequent, they may cover for an impaired colleague. To the extent that medical professionals practice as independent contractors without supervision or sustained periods of collaboration and regular contact, the ability to recognize that a professional is impaired is impeded. To the extent that medical professionals work together, collegiality may supplant professional concern.

Initial signs of impairment are frequently subtle, not obvious. Moreover, just as few individuals are looking for impairment, few wish to discover that someone is impaired. The ability to recognize impairment is affected by the willingness to see it. Missed appointments, tardiness, or sloppiness in one's work might be attributed to a passing stress and not taken as signs of something seriously wrong. A friendly inquiry met with a plausible response may be enough to assuage concern about a colleague.

Professionals may sympathize or identify with a troubled colleague. Given how much time, money, and effort professionals invest to establish their careers, the potential consequences of finding impairment can be enough to cause a professional to accommodate rather than report a colleague who is in trouble. The tendency of professionals to protect an inept colleague limits society's ability to respond to the impaired professional.

Fear of possible recrimination from the individual and one's peers also affects the professional's response to the suspicion or recognition that a colleague is impaired. The professional may worry that reporting or taking action on another's impairment may cause exposure to civil liability. Even if reporting a colleague poses no genuine threat of legal action, peers may de facto punish an individual for initiating the process of exposing a colleague to shame and institutional or legal action. These and other anxieties may make even conscientious professionals reluctant to report an apparently impaired colleague.

The professional and institutional response to professional impairment may be significant. A reported impaired professional is likely to encounter problems at the place of employment and difficulties regarding licensure (see below) and obtaining liability insurance. Depending on the nature and severity of the impairment, rehabilitation and recovery may not resolve these difficulties.

Confronting or reporting an impaired professional may be more difficult when that person is unable or unwilling to recognize the impairment. Admitting an impairment may damage one's image and reputation in the community and be fatal to a career.

The risk an impaired professional poses does not disappear or diminish if the impairment is ignored or unaddressed. On the contrary, it is likely to worsen. To ignore or dismiss the signs of impairment creates and sustains a potentially tragic situation. When the professional's impairment manifests itself, it is likely to be severe. At that point, those around the impaired professional are likely to be asked why no one intervened sooner, when the harm done could have been avoided or minimized.

Legal Implications

In every state, professional practice Acts specify as a grounds for professional discipline (including suspension or revocation of the license to practice) the inability to practice one's profession according to acceptable and prevailing standards of care by reason of mental or physical illness or habitual or excessive use or abuse of drugs, alcohol, or other substances that impair the ability to practice (Sanbar). In many states, professional boards operate treatment programs for impaired professionals (Ameringer; Talbott). Generally, successful participation in an approved treatment program is a prerequisite to licensure reinstatement for a rehabilitated, previously impaired professional (Spoon).

In many states, professionals are required by law to report impaired colleagues to relevant state professional boards and pertinent healthcare facility/agency administrators. Professionals are granted immunity from liability when they make such reports. When the reporting of impairment is mandatory under state law, failure to report is grounds for disciplinary action, although the actual enforcement of such statutes remains lax. Because the purpose of the law is prophylactic and arises out of the state's interest in protecting the public against harm, actual harm to a patient need not occur in order for a physician to be considered impaired. Because professional regulation is a matter of state law and is in constant flux, specific requirements, immunities, and programs vary considerably over place and time (Walzer).

Legal and ethical issues regarding informed consent arise in the case of impaired professionals who care for patients or clients. It has been suggested, for example, that the professional has an affirmative obligation to notify a patient/client about any impairment of that professional that might influence the decision to receive care from that professional, and that failure to share such information is a violation of the professional's fiduciary obligations (Furrow). Other commentators argue that information about specific professionals' impairments should be listed on publicly available data bases, raising a tension between the public's right to know and the professional's personal interest in privacy (Pape).

The Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213, and §504 of the Rehabilitation Act, 29U.S.C. § 794, prohibit discrimination against persons with physical and mental disabilities in such areas as employment and public accommodations These statutes affect, among other things, the licensing, discipline, institutional privileges, and insurability of impaired professionals (Rothstein, Piltch et al.).

giles r. scofield (1995)

revised by marshall b. kapp

SEE ALSO: Alcohol and Other Drugs in a Public Health Context; Alcoholism; Competence; Conflict of Interest; Conscience, Rights of; Disability; Emotions; Harm; Healing; Medicine, Profession of; Mistakes, Medical; Nursing, Profession of; Race and Racism; Responsibility; Sexism; Trust; Virtue and Character

BIBLIOGRAPHY

Allan, Rick B. 1997. "Alcoholism, Drug Abuse and Lawyers: Are We Ready to Address the Denial?" Creighton Law Review 31: 265–277.

Americans with Disabilities Act. 42 U.S.C. § 12101 et seq. Ameringer, Carl F. 1999. State Medical Boards and the Politics of Public Protection. Baltimore: Johns Hopkins University Press.

Boisaubin, Eugene V. and Levine, Ruth E. 2001. "Identifying and Assisting the Impaired Physician." American Journal of the Medical Sciences 322: 31–36.

Furrow, Barry R. 1998. "Doctors' Dirty Little Secrets: The Dark Side of Medical Privacy." Washburn Law Journal 37: 283–316.

La Puma, John, and Schiedermayer, David. 1994. Ethics Consultation: A Practical Guide. Boston: Jones and Bartlett.

Nelson, James Lindemann, and Jennings, Bruce. 1992. "Properly Diagnosing Impairment." QRB: Quality Review Bulletin 18: 24–25.

Pape, Julie B. 1997. "Physician Data Banks: The Public's Right to Know Versus the Physician's Right to Privacy." Fordham Law Review 66: 975–1028.

Piltch, Deborah L.; Katz, Jamie W.; and Valles, Janine. 1993. "The Americans with Disabilities Act and Professional Licensing." Mental and Physical Disability Law Reporter 17: 556–562.

Rehabilitation Act. 29 U.S.C. § 791 et seq.

Rothstein, Laura F. 1997. "Health Care Professionals With Mental and Physical Impairments: Developments in Disability Discrimination Law." Saint Louis University Law Journal 41: 973–1003.

Sanbar, S. Sandy. 2001. "Education and Licensure." In Legal Medicine, 5th edition, ed. Textbook Committee of American College of Legal Medicine. St. Louis, MO: Mosby.

Spoon, Barry D. 2002. "The Impaired Physician: The Role of the State Board of Healing Arts." Missouri Medicine 99: 169–170.

Talbott, G. Douglas. 1997. "Elements of the Impaired Physician Program." In Employee Assistance Programs: A Basic Text, 2nd edition, eds. William S. Hutchison, Jr. and William G. Eminer. Springfield, IL: Charles C. Thomas Publisher.

Walzer, Robert S. 1990. "Impaired Physicians: An Overview and Update of the Legal Issues." Journal of Legal Medicine 11: 131–198.