Free speech is one of our bedrock constitutional
rights. The debate and battle of what
constitutes lawful free speech is ongoing.
The issue is more complex than I can grasp with legal distinctions separating
political speech, commercial speech and non-commercial speech. And, of course the right of speech does not
permit the free expression of obscenity or ‘fighting words’, along with some
other exclusions. And, there is no right
to free speech in a private work place, where an employee can be fired for
speaking his or her mind. While worker
in a private shop may claim that he had a right to call his boss a flippin’
jerk, he would likely find that he suddenly has an abundance of free time to
contemplate his prior utterance.
Leaving aside the First Amendment, physicians have always
enjoyed free speech in our offices. We
ask our patients questions of the most private and intimate nature. And, they answer us. We ask such questions because, under
appropriate circumstances, we need the information in order to provide our best
medical advice. We ask about specific
sexual practices. We ask about prior or
current substance abuse. We ask if
patients are alcoholics. We ask if
patients are suffering from abuse or neglect.
While we may not invariably receive truthful responses from
these inquires, often we do. Patients
trust us to respect their confidentiality, which has been embedded into medical culture and practice since the time of Hippocrates.
And whatsoever I shall
see or hear in the course of my profession, as well as outside my profession in
my intercourse with men, if it be what should not be published abroad, I will
never divulge, holding such things to be holy secrets.
Hippocrates -2500 years before HIPAA!
His admonition holds true nearly 2500 years later. How’s that for meeting the test of time?
In 2011, the Florida Republican legislature, with the
approval of the governor, passed a law that restricted physicians from
inquiring of their patients about gun ownership and safety. Physicians found to be in violation risked
loss of their professional licenses or fines.
Nearly two weeks ago, an appeals court struck this silly law down. Not only was such a law an obvious
encroachment on physicians’ First Amendment rights, but also posed a barrier
preventing doctors from doing their jobs.
Should a pediatrician, for example, be prevented from asking a parent if
firearms in the home are properly secured?
This is not a political or partisan issue – it’s a medical and safety
issue.
Of course, the appeals court got it right in a case
that I regard as a judicial lay-up. But,
how did such a ridiculous law get passed in the first place?
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