2007 California Business and Professions Code Article 12.5. Mental Illness Or Physical Illness

CA Codes (bpc:820-828)

820.  Whenever it appears that any person holding a license,
certificate or permit under this division or under any initiative act
referred to in this division may be unable to practice his or her
profession safely because the licentiate's ability to practice is
impaired due to mental illness, or physical illness affecting
competency, the licensing agency may order the licentiate to be
examined by one or more physicians and surgeons or psychologists
designated by the agency.  The report of the examiners shall be made
available to the licentiate and may be received as direct evidence in
proceedings conducted pursuant to Section 822.




821.  The licentiate's failure to comply with an order issued under
Section 820 shall constitute grounds for the suspension or revocation
of the licentiate's certificate or license.



821.5.  (a) A peer review body, as defined in Section 805, that
reviews physicians and surgeons, shall, within 15 days of initiating
a formal investigation of a physician and surgeon's ability to
practice medicine safely based upon information indicating that the
physician and surgeon may be suffering from a disabling mental or
physical condition that poses a threat to patient care, report to the
diversion program of the Medical Board the name of the physician and
surgeon under investigation and the general nature of the
investigation.  A peer review body that has made a report to the
diversion program under this section shall also notify the diversion
program when it has completed or closed an investigation.
   (b) The diversion program administrator, upon receipt of a report
pursuant to subdivision (a), shall contact the peer review body that
made the report within 60 days in order to determine the status of
the peer review body's investigation.  The diversion program
administrator shall contact the peer review body periodically
thereafter to monitor the progress of the investigation.  At any
time, if the diversion program administrator determines that the
progress of the investigation is not adequate to protect the public,
the diversion program administrator shall notify the chief of
enforcement of the Division of Medical Quality of the Medical Board
of California, who shall promptly conduct an investigation of the
matter.  Concurrently with notifying the chief of enforcement, the
diversion program administrator shall notify the reporting peer
review body and the chief executive officer or an equivalent officer
of the hospital of its decision to refer the case for investigation
by the chief of enforcement.
   (c) For purposes of this section "formal investigation" means an
investigation ordered by the peer review body's medical executive
committee or its equivalent, based upon information indicating that
the physician and surgeon may be suffering from a disabling mental or
physical condition that poses a threat to patient care.  "Formal
investigation" does not include the usual activities of the
well-being or assistance committee or the usual quality assessment
and improvement activities undertaken by the medical staff of a
health facility in compliance with the licensing and certification
requirements for health facilities set forth in Title 22 of the
California Code of Regulations, or preliminary deliberations or
inquiries of the executive committee to determine whether to order a
formal investigation.
   For purposes of this section, "usual activities" of the well-being
or assistance committee are activities to assist medical staff
members who may be impaired by chemical dependency or mental illness
to obtain necessary evaluation and rehabilitation services that do
not result in referral to the medical executive committee.
   (d) Information received by the diversion program pursuant to this
section shall be governed by, and shall be deemed confidential to
the same extent as program records under, Section 2355.  The records
shall not be further disclosed by the diversion program, except as
provided in subdivision (b).
   (e) Upon receipt of notice from a peer review body that an
investigation has been closed and that the peer review body has
determined that there is no need for further action to protect the
public, the diversion program shall purge and destroy all records in
its possession pertaining to the investigation unless the diversion
program administrator has referred the matter to the chief of
enforcement pursuant to subdivision (b).
   (f) A peer review body that has made a report under subdivision
(a) shall not be deemed to have waived the protections of Section
1157 of the Evidence Code.  It is not the intent of the Legislature
in enacting this subdivision to affect pending litigation concerning
Section 1157 or to create any new confidentiality protection except
as specified in subdivision (d).  "Pending litigation" shall include
Arnett v. Dal Cielo  (No.  S048308), pending before the California
Supreme Court.
   (g) The report required by this section shall be submitted on a
short form developed by the board.  The board shall develop the short
form, the contents of which shall reflect the requirements of this
section, within 30 days of the effective date of this section.  The
board shall not require the filing of any report until the short form
is made available by the board.
   (h) This section shall become operative on January 1, 1997, unless
the regulations required to be adopted pursuant to Section 821.6 are
adopted prior to that date, in which case this section shall become
operative on the effective date of the regulations.



821.6.  The board shall adopt regulations to implement the
monitoring responsibility of the diversion program administrator
described in subdivision (b) of Section 821.5, and the short form
required to be developed pursuant to subdivision (g), on or before
January 1, 1997.



822.  If a licensing agency determines that its licentiate's ability
to practice his or her profession safely is impaired because the
licentiate is mentally ill, or physically ill affecting competency,
the licensing agency may take action by any one of the following
methods:
   (a) Revoking the licentiate's certificate or license.
   (b) Suspending the licentiate's right to practice.
   (c) Placing the licentiate on probation.
   (d) Taking such other action in relation to the licentiate as the
licensing agency in its discretion deems proper.
   The licensing agency shall not reinstate a revoked or suspended
certificate or license until it has received competent evidence of
the absence or control of the condition which caused its action and
until it is satisfied that with due regard for the public health and
safety the person's right to practice his or her profession may be
safely reinstated.



823.  Notwithstanding any other provisions of law, reinstatement of
a licentiate against whom action has been taken pursuant to Section
822 shall be governed by the procedures in this article.  In
reinstating a certificate or license which has been revoked or
suspended under Section 822, the licensing agency may impose terms
and conditions to be complied with by the licentiate after the
certificate or license has been reinstated.  The authority of the
licensing agency to impose terms and conditions includes, but is not
limited to, the following:
   (a) Requiring the licentiate to obtain additional professional
training and to pass an examination upon the completion of the
training.
   (b) Requiring the licentiate to pass an oral, written, practical,
or clinical examination, or any combination thereof to determine his
or her present fitness to engage in the practice of his or her
profession.
   (c) Requiring the licentiate to submit to a complete diagnostic
examination by one or more physicians and surgeons or psychologists
appointed by the licensing agency.  If the licensing agency requires
the licentiate to submit to such an examination, the licensing agency
shall receive and consider any other report of a complete diagnostic
examination given by one or more physicians and surgeons or
psychologists of the licentiate's choice.
   (d) Requiring the licentiate to undergo continuing treatment.
   (e) Restricting or limiting the extent, scope or type of practice
of the licentiate.


824.  The licensing agency may proceed against a licentiate under
either Section 820, or 822, or under both sections.



825.  As used in this article with reference to persons holding
licenses as physicians and surgeons, "licensing agency" means a panel
of the Division of Medical Quality.



826.  The proceedings under Sections 821 and 822 shall be conducted
in accordance with Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code, and the licensing
agency and the licentiate shall have all the rights and powers
granted therein.



827.  Notwithstanding the provisions of Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code, relating to public meetings, the licensing agency
may convene in closed session to consider any evidence relating to
the licentiate's mental or physical illness obtained pursuant to the
proceedings under Section 820.  The licensing agency shall only
convene in closed session to the extent that it is necessary to
protect the privacy of a licentiate.



828.  If the licensing agency determines, pursuant to proceedings
conducted under Section 820, that there is insufficient evidence to
bring an action against the licentiate pursuant to Section 822, then
all licensing agency records of the proceedings, including the order
for the examination, investigative reports, if any, and the report of
the physicians and surgeons or psychologists, shall be kept
confidential and are not subject to discovery or subpoena.  If no
further proceedings are conducted to determine the licentiates
fitness to practice during a period of five years from the date of
the determination by the licensing agency of the proceeding pursuant
to Section 820, then the licensing agency shall purge and destroy all
records pertaining to the  proceedings.  If new proceedings are
instituted during the five-year period against the licentiate by the
licensing agency, the records, including the report of the physicians
and surgeons or psychologists, may be used in the proceedings and
shall be available to the respondent pursuant to the provisions of
Section 11507.6 of the Government Code.