Back in 1980 or so, my parents decided to send me to a new doctor in town to address some youthful complaint or other. The doctor was youngish, well-qualified, and charismatic. He showed me into a consultation room, handed me a clipboard with a lengthy questionnaire, and told me we'd talk after I had completed it.
At first the questionnaire was unremarkable — it asked about my health and medical history. Then it turned questions to sexual activity. As a very geeky eleven-year-old boy, I took this as something of a dick move, like a food stamp application asking where your summer home is. But I conceded that questions about sexual activity among kids were rationally related to health, however spectacularly unnecessary they were in my case.
Then the questionnaire turned odd and uncomfortable and intrusive. It asked about masturbation. It asked about looking at pornography. It asked about thinking about sex, and the frequency of such thoughts. (I was an eleven-year-old boy. There was no box to check for "I think about it all the time. I think about it between the seconds.") It asked about same-sex attraction. At this remove, more than 30 years later, I'm not sure if the questionnaire had a religious sensibility or some other purpose. I only know that I found it instantly creepifying, and dreaded the doctor who would ask such things coming back into the room to touch me. I couldn't put it into words at the time, but it was clear that the doctor had a non-medical agenda — an agenda beyond determining if I had ulcers or diabetes or fungus or something.
So I contrived never to visit that doctor again. I told my parents I hated him, and that was that. Government intervention was not required.
Regrettably, some people seem to think the government should intervene to protect patients from doctors with personal agendas.
The impetus for such intervention is a perceived upswing in politcal-agenda-driven medical care, seen when doctors are urged to hector patients about their carbon footprint or about gun ownership. In Florida, an anecdote about such behavior led to a state law:
The Republican-controlled state Legislature adopted the Firearm Owners' Privacy Act in 2011 after an Ocala couple complained that a doctor asked them about guns and they refused to answer. The physician refused to see them anymore.
The Florida legislature's reaction was swift and stupid: it passed a law telling doctors they "should refrain," on pain of disciplinary action, from asking patients about gun ownership or the presence of guns in the home, unless the doctor "in good faith believes that this information is relevant to the patient's medical care or safety." The law didn't define what situations might lead to such a good faith belief, and the law seemed to reflect the legislature's judgment that a general concern about the risks posed by guns in the home did not constitute such a good faith belief, and doctors were left to speculate about what questions might lead to disciplinary action against them.
Fortunately, last month a federal judge struck down the law on First Amendment grounds, finding that (1) the law was a content-based restriction on speech, (2) Florida had not provided evidence sufficient to demonstrate a compelling interest justifying such a restriction on speech, and (3) the law was so vague that doctors could not determine what speech was prohibited. The opinion is long, but well-reasoned and clear, and a good exposition of the law on strict scrutiny of content-based restrictions. Governor Scott, foolishly, vows to appeal.
I believe that the push to have doctors ask patients about guns flows primarily from a political-interest-group-driven anti-gun agenda. I also believe it reflects an unbecoming ambition by some in the medical profession to become entrenched in broader segments of patients' lives. None of my doctors have asked me, but if they did, my trust in them would be diminished, and if they failed to accept a polite "I'm not going to discuss that," I'd find a different doctor. If a doctor wanted to fire me as a patient because of that answer, I'd consider myself lucky to know that the doctor is an ideologue whose political views outweigh his or her commitment to my care, and happily avoid him or her — as I would with a doctor who restricted patients based on their voting record.
I can understand the sentiments of people who react with more anger to agenda-driven physicians. But what I can't understand is the sentiment "well, the government can fix this" — particularly when it comes from conservatives and Republicans, who have spent the last few years complaining about how much Obamacare interferes with the doctor-patient relationship. I am especially disdainful of people who, having complained for years about over-regulation of the doctor-patient relationship, pass a broad and vague bill restricting the words that doctors can speak to their patients. You're mad that some doctors have an agenda? Fine. Fire your doctor and shop for one who doesn't. But asking the government to protect you from agendas is like asking Freddy Krueger to protect you from nightmares. Do you really want the geniuses in the Florida legislature making judgments about what words are appropriate for your medical professional to say to you?
Hat tip to Csoar.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016