Again and again we see lawmakers pass laws (generally in the context of abortion) that
- direct doctors to provide medically incorrect information or
- engage in acts which are medically unsound, or
- to not provide medical information beneficial to the patient.
How is this not engaging in the practice of medicine? Why are they not prosecuted for such behavior?
It turns out that lawmakers have special rights, known as legislative immunity (link to Wikipedia article with explanation), which allows them to enact laws.
Thus lawmakers are allowed to say what may legally be done by teachers, without being licensed to teach, and they can say what the law is, without being licensed to practice law, moreover they can say what doctors can do without being licensed to practice medicine, what spies can do without having a license to kill, and so on.
Indeed, none of the above acts (of passing legislation) would be violations of “unlicensed practice” statutes, even without the concept of legislative immunity.
For example, I can tell you about the legal concept of legislative immunity, without that act being “unlicensed practice of law”. In general, anyone in the US can freely talk about a topic: what is forbidden is holding oneself out as an X, if one does not have an X license, for legally-restricted profession X.
Finally, legislators do not provide any advice at all, instead, they say what the law is. As do appellate justices, in a different manner.
I found an article in the New England Journal of Medicine that protests this kind of legislative interference.
The article is from a few years ago before legislation started being enacted against opioid prescribing. The complaints below are only about what a doctor can say to or ask a patient, and even then, the interference is inappropriate.
I can only imagine what these authors would say (if they had the courage) about the latest efforts to legislate the practice of medicine.
Increasingly in recent years, legislators in the United States have been overstepping the proper limits of their role in the health care of Americans to dictate the nature and content of patients’ interactions with their physicians.
Some recent laws and proposed legislation inappropriately infringe on clinical practice and patient–physician relationships, crossing traditional boundaries and intruding into the realm of medical professionalism.
We, the executive staff leadership of five professional societies that represent the majority of U.S. physicians providing clinical care —
- the American Academy of Family Physicians,
- the American Academy of Pediatrics,
- the American College of Obstetricians and Gynecologists,
- the American College of Physicians, and
- the American College of Surgeons —
find this trend alarming and believe that legislators should abide by principles that put patients’ best interests first.
Critical to achieving this goal is respect for the importance of scientific evidence, patient autonomy, and the patient–physician relationship.
Examples of inappropriate legislative interference with this relationship are proliferating, as lawmakers increasingly intrude into the realm of medical practice, often to satisfy political agendas without regard to established, evidence-based guidelines for care. Of particular concern are four specific types of laws or legislative proposals.
The first type of law 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.1 The law also prohibited practitioners from routinely inquiring about whether patients own firearms and recording this information in a patient’s medical record.
The concerns we have about this law were well explained by U.S. District Judge Marcia G. Cooke, who issued a permanent injunction on June 29, 2012, barring the law’s enforcement. As Cooke noted in the opinion, “The State, through this law, inserts itself in the doctor–patient relationship, prohibiting and burdening speech necessary to the proper practice of preventive medicine, thereby preventing patients from receiving truthful, non-misleading information. This it cannot do. . . . This law chills practitioners’ speech in a way that impairs the provision of medical care and may ultimately harm the patient.”
Second, some new laws 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
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.”
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.
Third, still other laws 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
In Virginia, a bill 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,” 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.
Finally, there are 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”
In Pennsylvania, physicians can obtain information about chemicals used in the fracking process that may be relevant to a patient’s care, but only after requesting the information in writing and executing a nonstandardized confidentiality and nondisclosure agreement drafted by the drilling companies.
Unfortunately, laws and regulations are blunt instruments.
By reducing health care decisions to a series of mandates, lawmakers devalue the patient–physician relationship.
Legislators, regrettably, often propose new laws or regulations for political or other reasons unrelated to the scientific evidence and counter to the health care needs of patients.
Legislative mandates regarding the practice of medicine do not allow for the infinite array of exceptions — cases in which the mandate may be unnecessary, inappropriate, or even harmful to an individual patient.
Laws that specifically dictate or limit what physicians discuss during health care encounters also undermine the patient–physician relationship. Physicians must have the ability and freedom to speak to their patients freely and confidentially, to provide patients with factual information relevant to their health, to fully answer their patients’ questions, and to advise them on the course of best care without the fear of penalty.
None of the concerns raised above imply that we object to these governmental roles. But we believe that health legislation should focus on public health measures that extend beyond the individual patient and are outside the capacity of individual physicians or patients to control.
In contrast, government must avoid regulating the content of the individual clinical encounter without a compelling and evidence-based benefit to the patient, a substantial public health justification, or both.
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. [we’re not seeing much of this either]
Here is the legal code:
42 U.S.C. – United States Code, 2011 Edition – Title 42 – THE PUBLIC HEALTH AND WELFARE – CHAPTER 7 – SOCIAL SECURITY – SUBCHAPTER XVIII – HEALTH INSURANCE FOR AGED AND DISABLED
From the U.S. Government Printing Office, www.gpo.gov
1395. Prohibition against any Federal interference
Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.
(Aug. 14, 1935, ch. 531, title XVIII, §1801, as added Pub. L. 89–97, title I, §102(a), July 30, 1965, 79 Stat. 291.)