Dear Lonny
I have struggled with alcohol for some years, but I have always been careful not to let it interfere with my work. A colleague alerted the Ontario College to my problem, and I agreed to undergo an assessment and seek treatment. The assessor acknowledged that I'm perfectly safe to practise, but the College has asked me to sign an undertaking saying that I am "incapacitated." How can I admit to something that is not true? I may have an alcohol problem, but I am...
...Not Incapacitated
Dear Not
In Ontario, an "incapacitated" physician is defined by the legislation as one suffering from a physical or mental condition that makes it desirable in the interest of the public that you no longer be permitted to practise or that your practice be restricted. If you meet this definition, the College's Fitness to Practice Committee could impose limitations or conditions on your licence which may be very onerous (such as requiring you to practise under a monitor's supervision) or relatively limited in scope (such as a requirement that you attend AA meetings and remain in treatment). It is important to have counsel assist in these proceedings, because onerous restrictions are not always justified and can be difficult to shed even when the problem is under control.
In addition, Ontario's College recently started requiring members to disclose on their annual returns whether they have an addiction or substance abuse problem that may compromise the physician's ability to practise, which has not previously been identified. Physicians must carefully answer this question, and should probably seek advice before doing so, because if a physician answers "no" and a problem surfaces (which can be identified as pre-existing), that physician may face discipline as well as fitness to practise proceedings. Further, the physician will likely be saddled with onerous restrictions on her licence, as she will have demonstrated a lack of insight into her condition. On the other hand, if the physician seeks assistance from the OMA's Physician Health Program, she will not need to disclose the addiction or substance abuse problem.
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Each month Lonny J Rosen, a partner
in the Health Law Group at Gardiner Roberts LLP, will
answer your burning medical-legal questions. Got a question
for Lonny? Send it by email to health_lawyer@nationalreviewofmedicine.com
or by fax to 514-397-0228
This column
is intended to convey brief and general information
and does not constitute legal advice. Readers are encouraged
to speak with legal counsel to understand how the general
issues discussed in this column apply to their particular
circumstances.
http://www.ontariohealthlaw.com
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