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.
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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.
11 Responses to Between Scylla and Charybdis: Stopping healthcare professionals from giving unsound medical advice
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I see several major problems with healthcare professionals spreading misinformation. i.e. information that contradicts the current scientific consensus or latest insights:
– The misinformation alone in conjunction with the credentials and status of the one spreading it already causes confusion and uncertainty among the general public, especially about what and who they can trust.
– This uncertainty about whom and what to trust has the unfortunate side effect that information from ‘alternative’ and pseudoscientific sources is also more likely to be accepted.
– And, importantly, the people spreading contrary information tend to make up for their small numbers by being much louder and more fanatical than more moderate sources. In addition, they tend to get more attention in general, exactly for their contrary attitude, which only serves to further spread their ideas and increase their following.
Freedom of Speech is a very important human right, but it sometimes fails to take into account that the free speech of some people has significantly more weight and influence than the free speech of others. And especially in matters of life an death, professionals in healthcare but also e.g. law enforcement(*) should be more careful about publicly venting their personal opinions and beliefs than the average citizen – because that average citizen must be able to trust them as a profession to act in their best interest. This trust is almost by definition damaged when people from within that profession spread contrarian ideas and information.
*: Here in the Netherlands, we recently had a policeman espousing some very unsavoury extreme right-wing ideas via social media, among others violating the basic principle that law enforcement should treat every citizen equally. In the end, the man agreed to find another job. (And of course several wingnuts from the extreme right immediately cried foul over ‘Freedom of Speech’ …)
By all means, I want bureaucrats breathing down the neck of my chosen medical care provider. We already have untrained insurance adjusters doing that. And pharmacists refusing to fill prescriptions they disagree with. The more the merrier. Lets just dispense with the doctor altogether and go with artificial intelligence. That is what big pharma and big govt wants, it seems. Glad to see you pushing that agenda along, Edzard.
@stan
You appear to be confused as to why medical doctors must adhere to certain standards and requirements, so please allow me to educate you. Those standards and requirements are aimed at giving every patient the best possible treatment, i.e. a treatment that is as much as possible supported by scientific evidence of efficacy. And, as I already explained, these standards and requirements also ensure that people can trust their doctor to act in their best interest.
As soon as a medical care provider prescribes medicines that don’t work and/or promulgates health information that is incorrect, he or she should not be considered a legitimate medical care provider any more, because they no longer act in accordance with best medical practice, and thus in the best interest of their patients. And yes, this also means your best interest. These people should either stop dispensing bogus treatments, or else be stripped of their license to practice medicine. In other words: people with real medical credentials should be prevented from providing unproven and ineffective treatments – because that would not only harm patients, but also make it difficult for patients to make a properly informed choice about their healthcare. Now even you wouldn’t want that, would you?
Of course you have the freedom to consult alternative practitioners who do not adhere by any medical quality standards whatsoever, such as naturopaths, homeopaths and chiropractors – but these practitioners can at least be easily recognized as being medically uneducated, and generally incompetent to effectively diagnose and treat any conditions (except perhaps for the condition known as congestive hyperpecuniosis in the leathery structure called ‘the wallet’).
Glad to know there is One standard for medical care. That is what pushes science and medicine forward, everybody in lockstep following uniform “standards of care” enforced by medical boards and the law. Gosh, how did we survive all these years when science allowed for disagreements and different interpretations of the science. Its good to know that real consensus “science” now rules out any disagreements. Since the standards are all fixed we can just turn medicine over to technicians and artificial intelligence – eliminate doctor intuition and experience. Its the monopoly of conventional medicine that makes the US medical system and others around the world so great (-ly expensive with all the excessive testing, surgery and unnecessary procedures).
@Stan
The standard of care is of course not fixed in any way – it changes constantly. IIRC, doctors are required to spend a certain number of hours each year in order to keep up with new developments, and failing to do so may lose them their license. Perhaps Edzard can shed some light on this.
This is, however, something completely different from doctors who prescribe ineffective or even dangerous treatments and provide false information to their patients. In order to protect patients, those doctors should be disciplined or maybe even stripped of their license.
Anyway, your comments suggest that you are a troll who deliberately says rather unintelligent things in order to provoke some sort of response. Well, congratulations, you have succeeded.
Having things like pharmacists querying prescriptions or nurses questioning the rationale behind prescriptions they are to give to patients (yes, I most certainly did do that when appropriate) are all a necessary part of the checks and balances in healthcare. Certainly in the UK it falls well within the professional remit of a pharmacist or a registered nurse to ask such questions and to go so far as to refuse to fill a prescription or to administer drugs if it is their professional view that they should not (this must, of course, be defensible) and claiming that “Dr So and So said to!” is not a defence, as the medic is not part of their line of professional accountability.
Shock! Horror! Not every prescription written by a medic is accurate or uses the most effective meds (ask any junior medic on their 3rd day of on-call in any half busy setting)…
Only a couple of weeks ago a pharmacist asked me to confirm the reasons behind a combination of medications I’m prescribed.
It’s not the first time that a pharmacist has checked back with me about some aspect of my prescriptions. I’ve never experienced being refused prescribed medication by a pharmacist.
They will also ask if I present a prescription repeat soon after the previous dispensing of the prescription. It even says that they will on the prescription form. When I say that I’m getting a supply ahead of going on holiday, they’ve always been happy to fill the prescription.
All of that is the sort of professional care that I want from a pharmacist, whose job, after all, is more simply than reading a prescription and taking the medicine off the shelf.
A pharmacist questioning a dose that he knows is harmful is different than a pharmacist refusing to fill a prescription for Ivermectin because of his opinion about its usefulness. That is the point I was getting at. I certainly agree with the former and strenuously disagree with the latter. There is enough agreement on the safety of ivermectin and honest disagreements about science supporting its effectiveness.
@Stan
No. The overwhelming scientific consensus is that ivermectin is useless against Covid-19. This notion is also supported by all recent research
Yes ivermectin is relatively safe, but the real harm lies in the fact that most people who believe that it helps use it in lieu of vaccination, putting them at unnecessary risk.
The only healthcare professionals still claiming that it works are a couple of contrarian doctors who generally did not do any research themselves, and who keep rejecting real scientific results such as the above. These people should be barred from treating Covid-19 patients because they let personal beliefs prevail over established facts.
There is no difference: no evidence supports the use of ivermectin in Covid, thus I would expect a competent pharmacist to refuse to fill such a prescription. This is beyond the “opinion” of any pharmacist.
Equally, I would expect a competent medic NOT to be prescribing it in the first place for exactly the same reason.
It may be safe and it certainly has its uses, but treating Covid is not one of them, so it is contra-indicated.
Anyway, where I live, I wouldn’t be being given an ivermectin prescription for COVID from my GP:
“General practitioners are now only able to prescribe ivermectin for TGA-approved conditions (indications) – scabies and certain parasitic infections.”
https://www.tga.gov.au/media-release/new-restrictions-prescribing-ivermectin-covid-19
That’s from Australia’s regulator of medical products.