The ACP Advocate Blog
by Bob Doherty
Thursday, October 18, 2012
Worried about a government take-over of health care?
You should be, but it isn’t the bureaucrats and politicians in Washington that you should be most concerned about. Instead, it is the growing propensity of state legislators to dictate to physicians what they can and can’t say to their patients, what tests they must provide, and what advice they must give to them—the patient’s wishes, the medical evidence, and the physician’s clinical judgment be damned.
Today, the nation’s largest and most influential national medical specialty societies came together to say that enough is enough when it comes to government interference in the patient-doctor relationship.
Joining with his counterparts in the American College of Surgeons, American Academy of Family Physicians, American College of Obstetrics and Gynecology, and American Academy of Pediatrics, ACP’s EVP/CEO Steven Weinberger co-authored an editorial in the New England Journal of Medicine warning against “legislation [that] inappropriately infringe on clinical practice and patient–physician relationships, crossing traditional boundaries and intruding into the realm of medical professionalism.” (Disclosure: I contributed to the piece by providing content review and background information at several stages of the manuscript preparation.)
The article cites four categories laws that do not have the proper “respect for the importance of scientific evidence, patient autonomy, and the patient–physician relationship”:
1. Legislation that “prohibits physicians from discussing with or asking their patients about risk factors that may affect their health or the health of their families, as recommended by evidence-based guidelines of care. In 2011, for example, Florida enacted the Firearm Owners' Privacy Act, which substantially impaired physicians' ability to deliver gun-safety messages to patients.”
2. Laws that “require physicians to discuss specific practices that may not be necessary or appropriate at the time of a specific encounter with a patient, according to the physician's best clinical judgment.” For example, “New York legislation that was enacted in 2010 and became effective in early 2011 requires physicians and other health care practitioners to offer terminally ill patients “information and counseling regarding palliative care and end-of-life options appropriate to the patient, including . . . prognosis, risks and benefits of the various options; and the patient's legal rights to comprehensive pain and symptom management.” The authors note that “This is an area in which one size does not fit all and in which physicians are best able to determine what discussions with patients and families are necessary or appropriate at a given time. Yet failure to comply with the law can result in fines of up to $5,000 for repeat offenses and a jail term of up to 1 year for willful violations.”
3. Laws that “would require physicians to provide — and patients to receive — diagnostic tests or medical interventions whose use is not supported by evidence, including tests or interventions that are invasive and required to be performed even without the patient's consent” citing a Virginia law” requiring women to undergo ultrasonography before having an abortion would have mandated the use of transvaginal ultrasonography for a woman in the very early stages of pregnancy.” “As the Virginia chapter of the American College of Physicians stressed in a letter urging Governor Bob McDonnell to veto the bill, ‘opposition to the legislation does not reflect our opinions individually or collectively on the practice of abortion itself,’” they wrote,“but rather the conviction 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.’”
4. Laws limiting the information that physicians can disclose to patients, to consultants in patient care, or both. Four states (Pennsylvania, Ohio, Colorado, and Texas) have passed legislation relating to disclosure of information about exposure to chemicals used in the process of hydraulic fracturing (“fracking”).
The authors conclude by noting that “Our objection to legislatively mandated health care decisions does not translate into an argument that physicians can do whatever they want. Physicians are still bound by broadly accepted ethical and professional values. The fundamental principles of respect for autonomy, beneficence, nonmaleficence, and justice dictate physicians' actions and behavior and shape the interactions between patients and their physicians. When physicians adhere to these principles, when patients are empowered to make informed decisions about their care, and when legislators avoid inappropriate interference with the patient–physician relationship, we can best balance and serve the health care needs of individual patients and the broader society.”
ACP, in a related statement of principles that pre-dates and helped inform the joint NEJM statement, suggested a series of questions that should be asked of any proposed law to regulate the patient-physician relationship:
“Is the content and information or care consistent with the best available medical evidence on clinical effectiveness and appropriateness and professional standards of care?
Is the proposed law or regulation necessary to achieve public health objectives that directly affect the health of the individual patient, as well as population health, as supported by scientific evidence, and if so, is there any other reasonable way to achieve the same objectives?
Could the presumed basis for a governmental role be better addressed through advisory clinical guidelines developed by professional societies?
Does the content and information or care allow for flexibility based on individual patient circumstances and on the most appropriate time, setting, and means of delivering such information or care?
Is the proposed law or regulation required to achieve a public policy goal –such as protecting public health or encouraging access to needed medical care – without preventing physicians from addressing the healthcare needs of individual patients during specific clinical encounters based on the patients’ own circumstances, and with minimal interference to patient physician relationships?
Does the content and information to be provided facilitate shared decision-making between patients and their physicians, based on the best medical evidence, the physician's knowledge and clinical judgment, and patient values (beliefs and preferences), or would it undermine shared decision-making by specifying content that is forced upon patients and physicians without regard to the best medical evidence, the physician’s clinical judgment and the patient’s wishes?
Is there a process for appeal to accommodate for specific circumstances or changes in medical standards of care?”
It is good that ACP and the other leading national specialty societies have taken a firm stance for patients by objecting to laws that inappropriately inserts government into the relationship between patients and their doctors, but rank-and-file physicians must do their part and hold their state legislators accountable for such laws. Unless and until physicians rise up in broad opposition, legislators will continue to tell you what you can and can’t say or do for your patients, causing grave damage to patient care.
Today’s questions: What do you think of the joint NEJM editorial? What will you do to hold your state legislators accountable?
About the Author
Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog
Email Bob Doherty: TheACPAdvocateblog@acponline.org.Follow @BobDohertyACP
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