Restrictions growing on physician speech in exam room

An open relationship between physician and patient is crucial to good healthcare. But are there limits to what physicians can ask their patients? Laws restricting doctors’ freedom to discuss certain topics with patients, enacted primarily to promote a particular political viewpoint, are nothing new. Still, physicians must be mindful of this troubling trend.

In 2011, the state of Florida  enacted the Firearm Owners Privacy Act (FOPA). That law regulates what doctors may ask patients during examination and treatment.

Specifically, it prohibits physicians from:

• inquiring about patient firearm ownership unless the physician believes in good faith that it is relevant to the patient’s medical care or safety;

• entering information regarding firearm ownership in a patient’s medical record if it is irrelevant to the patient’s medical care or safety; and

• discriminating against or unnecessarily harassing a patient regarding firearm ownership.

Physicians who violate the act may be subject to disciplinary sanctions including reprimands, fines and license suspension, restriction or termination.

History of restricting physician speech
Such laws governing what a physician can or cannot ask a patient are not new.

In 1988, the Reagan Administration enacted regulations that prohibited employees of Title X (low income) clinics from discussing or recommending abortion as a method of family planning, as part of the Republicans’ efforts to make it more difficult for poor women to obtain abortions. (Congress had already prohibited the use of federal funds to pay for abortions.)   

In 1990, Pennsylvania passed a law requiring doctors to give a variety of information to women seeking abortions, including material created by the government that described the fetus, and a list of adoption agencies, all designed to dissuade  patients from having an abortion.  

The federal government, through the Drug Enforcement Administration (DEA), has threatened physicians with loss of their license to prescribe controlled substances if they discuss marijuana with patients, even in states that have legalized medical marijuana.

Although the law has long recognized that doctors and patients have a fundamental First Amendment right to be able to speak frankly and openly (embodied in the doctor-patient privilege), courts, particularly the Supreme Court, have been willing to permit the narrow political objectives of government actors to override the interests of the doctor and patient.

Both of the abortion requirements discussed above were approved by the Supreme Court, and, while one lower Court struck down the DEA regulations on medical marijuana, the Supreme Court declined to hear the case.

The firearm law
It was against this backdrop that Florida passed FOPA. There can be little question that the Act was intended to further one political viewpoint: the pro-gun position.

Florida Governor Rick Scott characterized the law as a protection of Second Amendment rights:  “I believe the citizens have a right to bear arms . . .I believe that we should be able to lead our lives without people intruding on them.”  Apparently, however, Governor Scott did not believe that doctors and patients have a right to engage in confidential communication without the government intruding on them.

Doctors challenge the law in court
When a group of Florida doctors challenged FOPA in federal court the initial result was encouraging.

The District Court struck the law down as an unconstitutional abridgement of the First Amendment rights of doctors and patients.  The Court listened to the American Academy of Pediatrics, as well as other healthcare provider groups, and concluded that doctors should be permitted to discuss any matter which they believe poses a health and safety risk to patients.

As one physician testified in opposing FOPA, he not only asked parents about firearms in the home, he asked about swimming pools, teenage drivers’ text messaging habits, and alcohol and tobacco use, all of which had implications for his patients’ health and safety.  (In the U.S. more than 500 children were killed by firearms in 2009, and over 7,000 were shot.)

In addition, the Court rejected the state’s position that questions about firearms posed by doctors threatened to abridge the Second Amendment rights of patients.

However, on appeal the Eleventh Circuit Court of Appeals reversed the District Court and reinstated FOPA, rejecting the lower court’s conclusion that the doctor-patient relationship and the need for open communication overrode the need to protect gun owners from being asked questions they did not want to answer.   

In essence, the appellate court divorced the concepts of physician “speech” and physician “treatment” and rejected the argument that a doctor’s inquiries regarding firearm ownership constitute speech.  

The appellate court also likened FOPA to routine regulation of the medical profession: “a state may police the boundaries of good medical practice by routinely subjecting physicians to malpractice liability or administrative discipline for all manner of activity that the state deems bad medicine, much of which necessarily involves physicians speaking to patients.”  

True enough, but malpractice liability is ordinarily imposed when a physician fails to meet the appropriate standard of care, something typically determined by the medical profession, not elected politicians.  To suggest that prohibiting doctors from asking a question about a particular topic is akin to protecting patients from malpractice is, if nothing else, a bit of a reach.

Implications for physicians
The physician-patient relationship necessarily includes an element of trust.  Patients seek out physicians when they are ill and vulnerable, believing that the physician both possesses the skill required to heal the particular ailment and genuinely desires to help. Patients are told that the doctor’s office is a safe, confidential place, where they are free to fully disclose all information without concern for judgment.

Laws like FOPA not only chip away at this key element of the doctor-patient relationship, but they place a burden on the doctor to self-censor, for reasons other than the best interests of the patient.

There are plenty of other topics that patients may prefer not to discuss with their physicians (alcohol and drug use, sexual activity, smoking habits, etc.).  Are they next on the chopping block?  Is it within the purview of a state’s legislature to set the boundaries of what general background information physicians believe is relevant in assessing patient health?

If a patient is unhappy with his or her physician’s questioning habits, should the onus not be on the patient to find another doctor rather than to invite the government into the examination room?

Unless the Supreme Court steps in and re-establishes the fundamental nature of First Amendment protection for doctor-patient conversations, doctors are well-advised to make sure they are aware of, and abide by, whatever government restrictions on their treatment discussions apply in their jurisdictions.  

Sadly, that list seems to be growing.