The pandemic has shown how difficult it can be to pass laws stopping healthcare professionals from giving unsound medical advice has proved challenging. The right to freedom of speech regularly conflicts with the duty to protect the public. How can a government best sail between Scylla and Charybdis? JAMA has just published an interesting paper addressing these issues. Here is an excerpt from the article that might stimulate some discussion:
The government can take several actions, including:
- Imposing sanctions on COVID-19–related practices by licensed professionals that flout substantive laws in connection with providing medical services, even if those medical services include speech. This includes physicians failing to comply with COVID-19–related public health laws applicable to medical offices and health facilities, such as mask wearing, social distancing, and restrictions on elective procedures.
- Sanctioning recommendations by professionals that patients take illegal medications or controlled substances without following legally required procedures. The government can also sanction the marketing by others of prescription medications for unapproved indications. However, “off-label” prescribing by physicians (eg, for hydroxychloroquine or ivermectin) remains lawful as long as a medication is approved by the US Food and Drug Administration for any indication and no specific legal conditions on use are in effect.
- Enforcing tort law actions (eg, malpractice, lack of informed consent) in cases of alleged patient injury that result from recommending a potentially dangerous treatment or failing to recommend a necessary treatment.
- Imposing sanctions on individualized medical advice by unlicensed individuals or organizations if giving that advice constitutes the unlawful practice of medicine.
In addition, the government probably can:
- Impose sanctions for false or misleading information offered to obtain a financial or personal benefit, particularly if giving the information constitutes fraud under applicable law. This would encompass physicians who knowingly spread false information to create celebrity or attract patients.
- Threaten disciplinary action by licensing boards against health professionals whose speech to patients conveys incorrect science or substandard medicine.
- Specify the information that may and may not be imparted by private organizations and professionals as part of specific clinical services paid for by government, such as special programs for COVID-19 testing or treatment.
- Reject legal challenges to, and enforce through generally applicable contract or employment laws, any restrictions private health care organizations place on speech by affiliated health professionals, particularly in the absence of special laws conferring “conscience” protections. This would include medical staff membership and privileges, hospital or other employment agreements, and insurance network participation.
- Enforce restrictions on speech adopted by private professional or self-regulatory organizations if the consequences for violations are limited to revoking organizational membership or accreditation.
However, the government probably cannot:
- Compel or limit health professional speech not made in connection with patient care, even if the speech is false or misleading, regardless of its alleged effect on public trust in health professions.
- Sanction speech to the general public rather than to patients, whether or not by health professionals, especially if conveyed with a disclaimer that the speech is “not intended as medical advice.”
- Sanction speech by health professionals to patients conveying political views or skepticism of government policy.
- Enforce restrictions involving information by public universities and public hospitals that legislatures, regulatory agencies, and professional licensing boards would not be constitutionally permitted to impose directly.
- Adopt restrictions on information related to overall clinical services funded by large government health programs, such as Medicare and Medicaid.
The article was obviously written with MDs in mind and applies only to US law. As we have seen in previous posts and comments, the debate is, however, wider. We should, I think, also have it in relation to practitioners of so-called alternative medicine (SCAM) and medical ethics. Moreover, it should go beyond advice about COVID and be extended to any medical advice given by any type of healthcare practitioner.