The Advocate
Informing Marine Engineers about legal matters
Authored by: Darren Williams, Williams & Company
Brought to you by www.dieselduck.net, comments to [email protected]
Changes to Transport Canada Policy: Anti-depressants & Crew Medical Certificates
When in 1914 Ernest Shackleton published his renown advertisement
for crew to man his transatlantic expedition to Antarctica, he
clearly considered, as a prudent master would, the psychological
pressures that would beset his crew. “Small wages, bitter cold, long
months of complete darkness, constant danger, safe return doubtful”.
Shackleton was wise for setting expectations low.
While modern mariners have countless more luxuries of technology,
comfort and safety than did Shackleton’s crew, today’s mariners are
exposed to a wider and more complex array of stressors, both on and
off the job, that can effect their mental well-being. Stressful work
environments. Inconsistent income. Long stints at sea. Troubles at
home. Discontent with career advancement. Persistent injury. These
are all common troubles than can, and do, impact almost every
mariner’s happiness.
Everyone experiences times when they are unhappy though, such as for
those reasons given above. The feeling of sadness is appropriate and
transitory – this is normal. However, when such feelings persist and
impair daily life, they may signal an underlying depressive illness.
It is the severity and duration of symptoms, plus the presence of
other features, that help distinguish this normal sadness from a
depressive disorder.
The true difficulty arises though in that, because many of our
personal problems do not resolve themselves overnight (divorce,
recovery from injury, financial difficulties – all taking months if
not years to resolve), mariners and doctors must distinguish between
what is unhappiness due to a transitory, albeit lengthy, period of
unhappiness and a period where there is a true depressive illness.
It is in this grey area, the area between feeling depressed and
being depressed, that “anti-depressants” have come to play a large
role in recent years.
In recent decades the evolution and availability of new
anti-depressants has lead to these drugs being prescribed by more
and more doctors. Prozac, Welbutrin, Effexor, Paxil, Zoloft are
common examples. Health Canada reports that in 1995 about 3.0% of
the population used anti-depressants. By 1999 this number had
doubled and by 2004 it had grown a further 80% - close to 15 million
prescriptions per year. A recent study commissioned by Health Canada
found that 81% of physician visits for feelings of depression
resulted in a recommendation for an anti-depressant. This is not to
say prescriptions for anti-depressants are a bad thing, only to say
anti-depressants are out there and we must account for them.
This discussion on the prevalence of anti-depressants brings me to
the focus of this month’s Legal Desk. It involves a client, who with
their permission I explain this issue, had their Marine Medical
Certificate revoked after Transport Canada conducted a random review
of their medical file and discovered the crewman to have been
prescribed two common anti-depressants.
A short background on Medical Certificates and medical examinations
is appropriate here. The requirement for a Medical Certificate comes
from section 63 of the Medical Regulations to the Canada Shipping
Act, which states:
63. No person shall employ a person as a seafarer to whom this Division applies unless the person produces a valid medical certificate issued under this Division, attesting to the person's fitness
(a) to perform the duties for which the person is to be employed; and (b) to make the voyage to be engaged in by the ship. The Medical Regulations go on to provide that seafarer who does not have one of the following disabilities may obtain a Medical Certificate:
(a) an impairment that could cause an unpredictable loss of consciousness and is not controlled through medication or otherwise; (b) a disorder that could prevent the seafarer from reacting effectively while performing duties; (c) a condition that could endanger others, taking into account the duration of voyages and the conditions on board ship; (d) a condition that is likely to require emergency medical care and is not controlled through medication or otherwise; or (e) an active psychiatric disorder, including drug or alcohol dependence or abuse.
On their face, these conditions seem imminently reasonable.
Passenger, crew and ship safety are at stake, after all. In the
example of my client, they had undergone a full medical examination
by Transport Canada in September of 2003 and been given a clean bill
of health and an unrestricted Medical Certificate. The tough pill to
swallow though came 4 months later when having completed a review of
this seaman’s medical records, Transport Canada wrote stating: “the
Minister has authorized a re-examination of your medical status. The
Marine Medical Review Board met on [date] and the following decision
was reach: You are assessed as unfit. The Medical Regulations do not
permit a seafarer with certain disabilities, including an active
psychiatric condition, to obtain a medical certificate”.
The documents on which the Medical Review Board decision was made,
having been disclosed to my client under the Access to Information &
Privacy Act, included only one letter from her family doctor that
noted the prescription for the two drugs, and cautioned Transport
Canada that the doctor saw no reason why the medication would
interfere with the seaman’s ability to conduct duties as a crewman.
Despite this doctor’s opinion, as well as Transport Canada’s medical
examiner’s opinion that the mariner was “fit”, and without any
first-hand assessment of the mariner, the Review Board declared the
mariner “unfit”.
On its face, the Medical Review Board had deemed the seaman to have
“an active psychiatric condition” because they had been prescribed
anti-depressants. On this finding, having been prescribed
anti-depressants, the seaman had their Medical Certificate revoked
and lost their livelihood at sea.
The consequences of Transport Canada taking such a position, and
applying it uniformly, were profound. If such a policy was pursued
consistently by Transport Canada across the country, thousands of
mariners could have their Medical Certificates revoked, losing their
ability to earn a living at sea, not because they had a depressive
illness, but because their doctor prescribed a pill to help them
though a divorce or an injury or a family death. The mariner
appealed. During preparation for the appeal we encountered at least
two mariners who had been required by Transport Canada to
discontinue taking an anti-depressant prescribed by their doctor,
and wait for six months, in order to qualify for a Medical
Certificate.
On appeal of the Medical Review Board’s decision the Appeal Board
restored the mariner’s Medical Certificate. The success of the
appeal was largely the result of two additional opinions of doctors
that stated there was no indication that use of those medications
would interfere with the crewman’s ability to fulfill their job
duties. However, Transport Canada, having considered the human
rights and practical effects of such a policy softened their
position on the eve of the Appeal and consented to reinstatement of
the mariner’s Medical Certificate.
The appropriateness of Transport Canada’s interpretation of the role
anti-depressants play in a mariner’s ability to fulfill their
duties, and whether their use requires a finding that a mariner has
an “active psychiatric condition” had been criticized. Revisions to
the policy and the relevant portions of the Crewing Regulations were
being considered at the time of the appeal, and are now closer to
completion. Amendments to the regulations are expected to take
effect later this year.
Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty Law, which has jurisdiction over maritime matters. Darren has worked extensively on the water as well as in the courtroom. He is a Barrister & Solicitor based out of Victoria, British Columbia, Canada, practicing at the Law Firm of "Williams & Company".
On this webpage, he brings us timely and relevant articles on the legal aspects of being a Marine Engineer in today's world. Although the articles have a predominately Canadian flavour, we are sure you will find his legal point of view enlightening where ever you ship sails. Darren has also published other legal articles on general admiralty law, view them all at the Williams & Company website. You can reach Darren for question or comment by phone at 250-478-9928 or by email.