Nurses, physicians, therapists, psychologists, pharmacists, dentists: everyone licensed under the Healing Arts division of the Business and Professions Code practises under a short article of it that most have never read. It is narrower than the fear.
The short answer: only if it appears the illness may impair your ability to practise safely, and only through a defined process. "Whenever it appears that any person holding a license, certificate or permit under 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."¹ "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."¹ Refusing the examination is itself a ground for discipline: "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."² Then, "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," it may revoke, suspend, place on probation, or take "such other action … as the licensing agency in its discretion deems proper."³ Reinstatement waits for "competent evidence of the absence or control of the condition which caused its action."³ For applicants, the general statute on denial for convictions and prior discipline says nothing about mental illness, and the profession-specific unprofessional-conduct lists for therapists and psychologists contain no mental-illness ground either.⁴ ⁵ ⁶
The trigger: impairment, not diagnosis
Section 820 turns on two things joined together: that you "may be unable to practice … safely" and that the inability is "because the licentiate's ability to practice is impaired due to mental illness."¹ A diagnosis is not, on the text, an impairment: the trigger is that it "appears" you "may be unable to practice … safely" because your ability "is impaired." A treated, stable condition that has not affected your work gives a board little to point to — but the threshold is the appearance of possible impairment, which is low, and the statute does not say a diagnosis can never meet it.¹ The statute does not say what makes it "appear"; in practice that is usually a complaint, a colleague's report, or an event.
The unprofessional-conduct statutes for two boards show the same pattern. The Board of Behavioral Sciences' list of unprofessional conduct for marriage and family therapists has no "mental illness" ground; its impairment ground is substance use "to the extent that the use impairs the ability of the person … to conduct with safety to the public the practice authorized by the registration or license."⁵ The Board of Psychology's is the same: alcohol or drugs "to an extent that this use impairs their ability to perform the work of a psychologist with safety to the public."⁶ Mental illness enters through section 820, and only as impairment.
The process
- The order to be examined. The board "may order the licentiate to be examined by one or more physicians and surgeons or psychologists designated by the agency."¹ You receive the report.¹
- Refusal has a cost. Non-compliance "shall constitute grounds for the suspension or revocation" of the licence.² Get counsel before responding; do not ignore the order.
- The determination. Action under section 822 requires the agency to determine that your "ability to practice … safely is impaired because the licentiate is mentally ill."³ The methods are revocation, suspension, probation, or "such other action … as the licensing agency in its discretion deems proper."³ The statute does not say what "other action" means.
- Reinstatement. "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."³ "Control" is the word to notice: the standard is a controlled condition, not a cured one. On reinstatement the board "may impose terms and conditions," including additional training and examination, "a complete diagnostic examination," "continuing treatment," and "restricting or limiting the extent, scope or type of practice."⁷ If the board requires a diagnostic examination, it "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."⁷
Applicants
The general denial statute is about conduct, not health. A board "may deny a license regulated by this code on the grounds that the applicant has been convicted of a crime or has been subject to formal discipline only if" the conviction "is substantially related to the qualifications, functions, or duties of the business or profession" and, for most crimes, falls within seven years of the application (the seven-year limit does not apply to serious felonies, sex-offender-registrable crimes or certain financial felonies, and runs from release for applicants who were incarcerated), or the prior formal discipline was within seven years for substantially related misconduct (older discipline counts only if it was for sexual misconduct with a patient).⁴ A board "shall not deny a license on the basis of an arrest that resulted in a disposition other than a conviction," nor on a conviction "that has been dismissed."⁴ It may deny for "a false statement of fact that is required to be revealed in the application," but "shall not deny a license based solely on an applicant's failure to disclose a fact that would not have been cause for denial of the license had it been disclosed."⁴ Mental illness does not appear in the section,⁴ and the profession-specific grounds for therapists and psychologists, which also ground denial, contain none either.⁵ ⁶ Whether an application form may ask about it is a separate question of anti-discrimination law. Can a job application ask about my mental health? →
What to do
- Get treatment, and keep the record of it. The reinstatement standard is "absence or control of the condition";³ a treating clinician's documentation is the evidence.
- If you receive a section 820 order, comply, with counsel: refusal is an independent ground for suspension or revocation.² Ask for the examiners' report; you are entitled to it.¹
- If you are an applicant, answer the application truthfully. The board may deny for a knowing false statement; it may not deny solely for not disclosing something that would not itself have been a ground for denial.⁴
- If you are a therapist worried about your own duty, the confidentiality of your own treatment is governed by the same statutes as anyone's. Is therapy confidential? →
Worked example
A registered nurse with bipolar disorder, stable for years, has a manic episode and is found asleep on shift after several medication errors. A colleague reports her. The board, on those facts, orders an examination by a designated psychiatrist under section 820;¹ she complies, with counsel, and receives the report.¹ The examiner finds impaired judgment during the episode, now resolved with treatment. Under section 822 the board may act by any of the listed methods; it places her on probation with treatment and monitoring conditions rather than suspending her.³ Had it suspended her, reinstatement would have required "competent evidence of the absence or control of the condition" and could have come with conditions such as "continuing treatment" and a restricted scope of practice.³ ⁷ Her diagnosis alone, before the episode, gave the board nothing on which impairment could appear.¹
Q&A
Q: Do I have to report my diagnosis to my board? A: Sections 820 to 823 impose no self-reporting duty; they authorize the board to act when it appears that practice may be unsafe.¹ ³ Renewal forms and other statutes may ask particular questions; answer them truthfully.
Q: Can the board discipline me for being hospitalized on a 5150? A: The ground is impairment of the ability to practise safely, which the board must determine under section 822 — usually, but not necessarily, after ordering a section 820 examination.¹ ³ A hospitalization may prompt the inquiry; it is not itself the finding. Does a 5150 go on my record? →
Q: I refused the examination. What now? A: Refusal "shall constitute grounds for the suspension or revocation" of the licence.² Get counsel immediately.
Q: My licence was suspended. When can I get it back? A: When the board has "competent evidence of the absence or control of the condition" and is satisfied practice can be safely reinstated;³ it may attach conditions such as continuing treatment and a limited scope of practice.⁷
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Sources
- Cal. Business & Professions Code §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" — california.public.law.
- Cal. Business & Professions Code §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" — california.public.law.
- Cal. Business & Professions Code §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" — california.public.law.
- Cal. Business & Professions Code §480 — (a) "a board may deny a license regulated by this code on the grounds that the applicant has been convicted of a crime or has been subject to formal discipline only if either of the following conditions are met: (1) The applicant has been convicted of a crime within the preceding seven years from the date of application that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made," with the seven-year limit disapplied for a serious felony, a registrable sex offence or certain financial felonies, and running from release for an incarcerated applicant; "(2) The applicant has been subjected to formal discipline by a licensing board in or outside California within the preceding seven years from the date of application based on professional misconduct that would have been cause for discipline before the board for which the present application is made and that is substantially related to the qualifications, functions, or duties of the business or profession"; (c) no denial on the basis of a conviction "that has been dismissed"; (d) "a board shall not deny a license on the basis of an arrest that resulted in a disposition other than a conviction"; (e) "A board may deny a license regulated by this code on the ground that the applicant knowingly made a false statement of fact that is required to be revealed in the application for the license. A board shall not deny a license based solely on an applicant's failure to disclose a fact that would not have been cause for denial of the license had it been disclosed." The section does not mention mental illness — california.public.law.
- Cal. Business & Professions Code §4982(c) — substance use "to the extent that the use impairs the ability of the person applying for or holding a registration or license to conduct with safety to the public the practice authorized by the registration or license"; the section contains no mental-illness ground — california.public.law.
- Cal. Business & Professions Code §2960(b) — use of a controlled substance, dangerous drug or alcohol "to an extent or in a manner dangerous to themselves, any other person, or the public, or to an extent that this use impairs their ability to perform the work of a psychologist with safety to the public"; the section contains no mental-illness ground — california.public.law.
- Cal. Business & Professions Code §823 — "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," including "(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 … (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" — california.public.law.
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