A fine balance: disability, discrimination and public safety

The university was worried the student would not practice medicine safely even if she completed her degree. Jack Hynes/ Flickr, CC BY-NC-SA

A recent discrimination case has highlighted the difficulty of balancing the rights of disabled medical students with the rights of the community to safe medical and health care. In the BKY v The University of Newcastle, a New South Wales tribunal found the university had discriminated against a medical student by refusing her an extension to complete the five-year medical course beyond the usual maximum of eight years.

Under the Anti-Discrimination Act 1977 (NSW), it’s unlawful for an educational authority to discriminate against anyone on the basis of disability. The student claimed she had been subject to discrimination based on the fact she had bipolar disorder, borderline personality disorder, and severe psychosocial stressors. She had attended a psychiatrist regularly throughout her previous nursing degree, while employed as a nurse, and during her medical degree.

She had self-reported her conditions to the NSW Medical Board in 2008. And during the medical program, she worked part-time in the John Hunter Hospital’s Intensive Care Unit.

What the tribunal heard

BKY had reached the three-and-a-half-year mark of her degree after eight years of study. In that time, she had passed 13 courses after repeating eight of them, failed four and been awarded withdrawal without penalty for five courses.

But the university had not asked her to show why her enrolment should not be cancelled on the basis of her unsatisfactory academic performance.

The dean of medicine’s evidence included his view that BKY was unlikely to complete the degree even with extra time; that further study would injure her health; that the currency of BKY’s knowledge was questionable; that there was a risk she would perform poorly in clinical rotations because of her anxiety; and that there was a risk she would not practice medicine safely even if she completed the degree.

BKY’s psychiatrist stated her disorders were characterised by performance anxiety around exams and consequent avoidance behaviour, although she had the ability to complete exams later, a poor sense of self-worth, and fear of failure resulting in an inability to study. She had only completed a nursing degree when directly faced with the prospect of not finishing. The psychiatrist considered it unlikely her symptoms would disrupt effective functioning as a medical practitioner.

The tribunal’s findings

The tribunal found “the psychiatric conditions affected the applicant’s thought processes, emotions or judgment and resulted in disturbed behaviour.” It concluded that this was a disability under the Anti-Discrimination Act and found the student had been treated less favourably than someone without the disability in the same or similar circumstances. This conclusion was reached by comparing her case with another student who had also sought, and was granted an extension on the basis of poor academic progress.

The tribunal identified a probable connection between the decision not to grant BKY an extension and her psychiatric condition, because any concern regarding currency of knowledge should also have applied to the other student making the same application. BKY’s psychiatric condition should have been considered as extenuating circumstances, it said, and favoured the psychiatrist’s opinion over the medical dean’s on whether BKY would complete the course.

The tribunal also found the dean’s decision had depended on the alleged effect on BKY’s health of her continuing study and his opinion concerning her suitability to practise safely, which should have been irrelevant to his decision.

What it means

Educators are becoming increasingly concerned that some students should not be admitted to professional degrees, due to conditions that impede academic progress and suggest the possibility of later unsafe practice. The clinical features of BKY’s conditions are good examples of such grounds for concern.

The tribunal’s legal task was not to determine if BKY would be fit to practise safely. That’s the responsibility of the NSW Medical Council. But the stark demarcation between the student and practitioner jurisdictions is problematic because of potential implications for more extreme cases.

Universities have a duty not to discriminate against students, but they also have duties to the communities that support them. The psychiatrist’s opinion that BKY’s symptoms were unlikely to disrupt effective practice will be of concern to many doctors and medical educators, given the nature of the conditions and the experience of medical regulators with doctors with these conditions.

The required registration of medical and other health practitioner students with the relevant boards under the National Registration and Accreditation scheme may go some way to addressing educator concern, given the boards monitor impaired students and doctors in relation to any risk posed to public safety.

But exemptions to discrimination provisions under federal and state statutes might also be considered in more extreme cases, allowing universities to participate more actively in ensuring they graduate safe practitioners.

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