April 20, 2011

Registration: Fitness and Human Rights

Administrative Law
Health Professions Review Board
Professional Regulation
Registration and Fitness

In setting and enforcing standards of fitness, professional regulators must reasonably accommodate persons with disabilities, including mental disabilities. Additional requirements for persons with such disabilities may, of course, be justifiable if reasonably necessary for the regulator to fulfil its mandate. But if requirements, or the processes for imposing such requirements, are not appropriately tailored, prejudice resulting to applicants may support claims of discrimination. Such was the case in Gichuru v. Law Society (British Columbia), 2009 BCHRT 360. Gichuru dealt with claims of both individual and systemic discrimination, arising from an application form for the articling program of the Law Society of British Columbia, and the resulting process of assessment.

Prior to May 7, 1993, the application form contained a very broadly-worded question:

Have you ever received treatment or counselling from a psychiatrist, psychologist or other mental health professional?

In response to concerns about potential over-breadth, and based in part on expert advice, the Law Society amended the question to focus solely on “schizophrenia, paranoia, or a mood disorder described as a major affective illness, bipolar mood disorder or manic depressive illness” The Law Society chose, however, not to include a time limit, in order to capture only recent illnesses, e.g., illnesses treated in the previous two years.

An applicant had previously suffered from clinical depression, but had been out of treatment for years before his applying for admission to the articling program. As events unfolded, the applicant had to make four separate applications before completing his articles in 2004. For each application, he had to answer the same question. On each occasion, the Law Society required updated information about the applicant’s mental health status, notwithstanding the applicant not having received treatment in the intervening periods. Eventually the Law Society required that the applicant undergo a psychiatric assessment, at the applicant’s cost. As a result, the applicant suffered prejudice from the delay and expense of the process. [614]

The Tribunal found the question, and the resulting process, to be unjustifiable discrimination. While acknowledging the question was rationally connected to the goal of ensuring registrant fitness, and adopted in good faith, the question was not reasonably necessary to achieve the goal of ensuring fitness to a reasonable standard of safety. For example, the LSBC did not investigate or fully consider alternate approaches that might have non- or less-discriminatory effect. The question excluded physical disabilities and some mental conditions with possibly greater impact on fitness (e.g., delusional disorders). Other law societies had narrower questions. The question contained no time limit, so that it would capture a single incident of major depression, no matter how long in the past. [534] As well, an affirmative answer meant the application would be sent to the Fitness Committee without any discretion on the part of Credentials staff.

Since Gichuru, the Law Society has amended its application form. Schedule A to the form, marked “Medical Fitness”, now poses the following question:

5. Based on your personal history, your current circumstances or any professional opinion or advice you have received, do you have any existing condition that is reasonably likely to impair your ability to function as an articled student?

This question seems to address the concerns raised in Gichuru; it is restricted to conditions that are “reasonably likely to impair [one’s] ability to function”, and hence captures only such information reasonably necessary for that purpose. However, the same form also contains the following question:

2. Do you now have or have you ever had a dependency on alcohol or a drug?

One may consider if a question like this might run afoul of the same concerns raised in Gichuru, given alcoholism is a disability for purposes of human rights law: Handfield v. North Thompson School District No. 26, [1995] B.C.C.H.R.D. No. 4. The Law Society differs from other regulators by treating addiction separately from other mental conditions. Additionally, the question as framed contains no time limit, which proved a substantial issue in Gichuru. Under the Tribunal’s reasoning in Gichuru, the decision to apply a higher degree of scrutiny in respect of a particular condition must be justified by reference to evidence showing the specified condition warrants differential treatment. In the absence of a test case, however, the justifiability of this sort of question remains to be seen.

Health profession regulators may note that possible infringements of human rights as part of a registration process may be assessed not only by the Human Rights Tribunal, but also by the Health Professions Review Board, which has exclusive jurisdiction to determine matters of fact, law and discretion relating to registration decisions, at least where a college ultimately refuses to grant registration, or has grants registration with limits or conditions.

Gichuru v. Law Society (British Columbia), 2009 BCHRT 360

Based on your personal history, your current circumstances or any professional opinion or advice you have received, do you have any existing condition that is reasonably likely to impair your ability to function as an articled student?