Don’t Ask, Don’t Tell is making a comeback—directed now at doctors, not the military, but this version has nothing to do with sexual orientation and everything to do with the doctor-patient relationship.
Lawmakers across the country are involved in a feeding frenzy to see who can pass the most obnoxious, offensive and intrusive laws to prohibit physicians from asking or telling patients about clinical information that is relevant to their health. They also are going at the physician-patient relationship from the opposite direction, mandating what physicians must ask or tell patients about their medical care—and even what tests and procedures they have to impose on them. Without regard to a physician’s clinical judgment, patient preferences, informed consent, clinical effectiveness, medical necessity, or cost!
To illustrate how ridiculous this has gotten, last June I posted a satirical description of a new Florida law to prohibit doctors from discussing alcohol consumption with their patients. Actually, the real Florida law prohibits doctors from asking or telling patients about firearms safety—but to make my point, I substituted references to alcohol whenever firearms were referenced in the actual statute, such as:
“An act relating to the privacy of consumers of alcoholic beverages; providing that a licensed medical care practitioner or health care facility may not record information regarding ownership or consumption of alcoholic beverages in a patient's medical record . . .”
I asked “If Florida’s ban [on doctors asking patients about firearms] stands up in court, is it really out of the question that manufacturers and sellers of whiskey, or red meat, or even marijuana, might want to do the same?”
Well, I didn’t think to include fracking (high-pressure chemicals, sand, and water that is blasted into rock to tap into natural gas). Pennsylvania has passed a law so that doctors can get information from mining companies about a patient’s potential exposure to hazardous chemicals related to fracking, but they can’t disclose the information to anyone, including the patient they are treating! Here is the offending section of the PA law:
“If a health professional determines that a medical emergency exists and the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider or operator shall immediately disclose the information to the health professional upon a verbal acknowledgment by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential. The vendor, service provider or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit, in conformance with regulations promulgated under this chapter.”
Excuse me, but doesn’t this seem fracking ridiculous to you? If I were a patient, and my doctor found out that I had been exposed to specific chemicals that might have harmed my health, shouldn’t I have the right to know about them—and shouldn’t my doctor be obligated to tell me?
To be clear, the American College of Physicians has no policies on fracking. We don’t have policies on access to abortion services, or the right to bear arms (although we do support gun safety screening as part of a preventive risk assessment). On a few occasions, we or our state chapters have taken positions on state laws based on broad policies on the doctor-patient relationship and informed consent. With the national ACP’s support, our Florida chapter has objected to and joined in a lawsuit to successfully block the Florida gun safety gag rule. And ACP’s Virginia chapter recently wrote to its legislature to urge opposition to Virginia’s ultrasound before abortion bill, on the basis that “this legislation represents a dangerous and unprecedented intrusion by the Commonwealth of Virginia into patient privacy and that it encroaches on the doctor-patient relationship . . .” The chapter pointed out that it has no position, individually or collectively, on abortion itself. (An amended version of the bill passed and was signed into law by the governor.)
State lawmakers will offer all kinds of reasons for intruding into the doctor-patient relationship, from protecting business interests, to their ideology, to constitutional rights, to seemingly sincere and principled views on the morality and need for different medical interventions. But to me, the issue comes down to one thing: the government not telling my doctor what he can say or do or the decisions we make together about my health.
You would think that at least some of the people who are parading with their “Keep government out of health care” signs today outside the Supreme Court today would be even more concerned about their own states’ efforts to insert government, in the most fundamental and intrusive ways possible, into the relationship between doctors and their patients. They may discover that the real government takeover of medicine is happening in their own state capitols, not Washington.
Today’s questions: What do you think of state laws to tell doctors what they can and can’t ask or tell patients or what tests they must perform on them? And why do you think that there is not more of an outcry about such laws from the public, and from many physicians?