Further Regulation of Speech

Saturday, February 25, 2006
Law Professor Eugene Volokh has an interesting post about an attempt in Virginia to regulate an aspect of the Doctor-Patient relationship. The Virginia legislature is considering restricting doctors' speech with patients about guns. According to an article in the Virginia Pilot:
A pediatrician who asks a child's parent about firearms in their home could lose his or her license or be disciplined under legislation being considered by a Senate committee today.

The bill would prohibit health care professionals from asking a patient about gun possession, ownership or storage unless the patient is being treated for an injury related to guns or asks for safety counseling about them.


This legislation is supported by the NRA. Professor Volokh indicates that usually speech codes like this are unconstitutional, but are probably constitutional when imposed on professional-client speech. Many medical groups have gotten into the political fray about questions that are large policy questions, instead of direct health questions. Gun ownership is one of those issues as the American Academy of Pediatrics has an anti-gun policy. In many respects it is understandable that many citizens would be concerned about attempts by doctors to impose their values onto them. But I question whether regulating professional-client speech in this way is a sensible solution. It appears that when one has a problem with speech, then the solution is more speech, including voting with your feet by going someplace else.

According to my reading of the language of the law, I could imagine a mental health professional running afoul of the law in the following situation. A teenage patient is referred for evaluation for several beahvior problems in school and elsewhere. Included in the problems reported are various communications of the teenager suggestive of potential violence although the youngster has not been violent to date (e.g., draws a picture of self shooting a teacher among other things). As part of an evaluation, it seems reasonable for the mental health professional to ask about whether the family owns firearms and what safety precautions the family takes concerning their use or availability and whether the youngster has access to them and has communicated some interest in using them outside of parental or adult supervision, etc. In fact if a youngster were to commit a violent act with a firearm and had seen a therapist prior to the event, all kinds of people would wonder, did you even ask whether the kid had access to guns or whether the family had any?. It would be quite something if the professional has to say, "Well, it was illegal for me to do that so I sent him to the school nurse who could legally give him condoms instead. We were hoping he might express his shooting feelings in other ways."

It seems that one can be fully supportive of the 2nd Ammendment and also be supportive of limited government. Do we really want the Nanny State to regulate speech in this way? Will this grow to become McCain-Feingold part deux? If doctors were actually as influential as some people think they are, wouldn't we have lower rates of diabetes, heart disease, high blood pressure, etc?

13 comments:

Rick Ballard said...

Barry,

Aren't communications with parents also proscribed wrt teenagers in some instances? Hasn't the doctor/patient privilege been enlarged in certain areas wrt sharing info with parents?

I agree totally with your argument - if a doc started to lecture me about getting rid of guns, I'd get rid of the doc, tout suite. And your argument concerning lectures concerning healthy habits kind of strikes a nerve too. I can remember a doc saying to me (wrt cigarettes) "Don't you know those things will kill you?" My reply was "Well, I know something will." Which didn't sit very well with him.

I really wanted to work for the ATF until I found out what it really does. Alcohol, Tobacco and Firearms - who wouldn't?

David Thomson said...

The National Rifle Association often goes a bit too far. It tends towards absolutism. The NRA even has a problem with the outlawing of machine guns! I probably support 85% of its agenda. In the NRA’s way of looking at the world, I am wishy-washy on the issues. Not quite a Ted Kennedy type, but someone still not to be trusted. This current attack on free speech is appalling. I do not need the government’s assistance in protecting me from a medical professional’s unwanted advice.

Barry Dauphin said...

Rick,

Well teenagers can have quite a bit of confidentiality. Doctors are required by the state to break confidentiality in some instances (belief that patient may be a harm to self or others). But actually I'm talking about something a bit different than confidentiality, although that is at issue too. Parents give you permission to work with their child and can certainly revoke that permission (and often do). In my example, I'm not even talking about information that the child has expressed in a therapy session which is more complicated to deal with. Let's say the parents show you a drawing, for example. It only makes sense to say, BTW do you have guns in the house, could your youngster even do this with materials already in the house? I'm sugesting that this Virginia law risks not only the over regulation of speech, but is an insult to common sense.

Health professionals, including mental health, should definitely put a lid on the lecturing of people who don't wish for it, although I think doctors do well to address the potential consequences of the behavior for which the patient arrived on their doorstep, especially voluntarily. Do we want to get into a position where it's against the law for a physician to suggest dietary changes for a diabetic patient? My business is basically about speech, as a therapist, that's pretty much all I have to offer. People have the right to fire me any time the wish.

Rick Ballard said...

Barry,

I was thinking therapy - in the instance of a parent showing you a picture as described you would (IMO) be negligent in not raising the issue. I have a nagging suspicion that I would feel better if you mentioned an adolescent's negative fantasies that arise in treatment to a parent also. The first murderer I ever knew killed his mom when we were both fourteen. Kids can be rather dangerous.

I also agree that a doctor has a duty to point out poor health behaviors. There are just better ways to do it than the one I described.

This appears to be a very poor attempt to regulate matters that should be left to patients and doctors. Doctors are already overburdened with this type of thing (especially with regard to adolescents) AFAIC.

truepeers said...

This is a shocking story. I would have thought that if there were one social constituency out there immune to the "protect me from the blasphemy of those who would criticize that which is sacred to me" angst, it would be the American firearm owners.

I can't help but think this is evidence of the extreme mimetic contagion of political correctness, now being caught even by those who purport to worship freedom. If so, our world has become sicker, our intellectual collapse greater, than i feared. What's really scary is that this gives ammo. to the leftists who argue that America's gun nuts are no different from the whacko militiamen of the ME who want guns not so much to be free, as to not be offended.

Seems to me you all aren't man or woman enough that you should be allowed to own guns, Mr. and Mrs. NRA on a short fuse. Heck, that's what my gubmint has been telling us fer years. Guess they're right, us folk can't be trusted...

terrye said...

Sounds strange to me. What happens if the kid says "Yeah, Daddy has guns, he hunts". Then what?

JB said...

Let's say the practice of doctors advising against gun ownership became common practice. Wouldn't lawyers have a much easier time suing both doctors (who fail to routinely recommend it) and parents (who fail to follow it) in cases a kid shoots someone?

You don't like chilling of free speech? What about when it chills gun rights? Seems to me a conflict is possible.

Barry Dauphin said...

The policy of doctor's advising against gun ownership would be bad policy. But not even being able to ask anything about this in a specific situation where such information could be germane without losing your license seems like the Nanny State to me.

Terrye,

Well I was thinking about when the therapist is talking to the parents intitially and they are raising these issues. If any youngster simply says that dad has guns and goes hunting, I'm not suggesting that a therapist tell parents to get rid of the guns, far from it. I'm suggesting that we not make it illegal for a professional to inquire about information that might be relevant to treating their specific child or risk losing their licenses or other penalties simply for asking questions.

jb

I think there's a difference between chilling free speech and making certain speech illegal. I'm not suggesting anything like an incumberence on the 2nd Ammendment. If doctors did this as policy, then it would be important for people to speak up about this, even organize and counter such speech with more speech. Doctors can't force anyone to give up guns and surely we don't want a situation where it is illegal to ignore a doctor's advice. People should feel free to ignore a doctor's advice and take their business elsewhere.

Knucklehead said...

Terrye,

I don't the full nature of the NRA's position on this but specific to your question, depending upon the gun laws of the state and the nature of what the doctor and patient are discussing, the result could be the confiscation of Daddy's hunting weapons.

So, for example, Junior shows up at the school nurse's office complaining that his arm hurts, the nurse looks at the arm, and sees a bruise that suggests somebody grabbed Junior by the arm with enough force to cause bruising. Now we're into "domestic violence" territory and Ms. Nurse may be required by law to get a counselor or other higher medical authority involved. That medical authority then starts questioning the kid, steers the conversation to whether or not Dad has any guns at home, Junior says, "Yeah, he hunts" and Dad arrives home from work to find the police waiting for him and his home searched and his guns confiscated.

I happen to know of a case very similar to this. Junior was having some, ummm..., problems. His mom and dad were trying to deal with it, it reached the point of heated words, Junior made a violent move towards Mom, Dad grabbed his sorry little arse with enough force to make his point and the result was police, confiscation, thousands of dollars in legal fees and so forth.

This isn't a matter I'm likely to dig in to but overzealous public health officials on a personal mission can cause unnecessary havoc. Junior shows up with a broken finger... Questioning from Doctor Peta Hatesguns reveals that Junior and Dad were cleaning their shotguns after returning from quail hunting and Junor managed to release the bolt while he had a finger in the shotgun. Doc Peta then goes off on a zealous mission to save this poor child from the horrid effects of having an animal murdering gun whacko for a dad.

I tend to agree with DT that the NRA goes overboard on a lot of stuff. But so does the Save the Whales and Kiddies Crowd.

vnjagvet said...

The easy way to handle this is tell the Doc to mind his/her own business. If necessary, put all over the blogosphere.

Rick Ballard said...

Vnjagvet,

That's the common sense position but it doesn't address an effort to criminalize a form of speech. I really feel for clinicians trying to help people who are being so hemmed in by Nannystate nonsense that they can't exercise their own common sense in dealing with their clients as indivuals. The example that Knuck points to is a very good one. The "must report" provision (subject to penalty that can include loss of right to practice) presupposes that a clinician would ignore signs of obvious abuse and puts them in a "oh crap" position if they see a bruise on a kid's arm.

The teen "privacy" bit (based upon a statutory age) presumes that a fourteen year old who actually has the emotional/mental capacity of a ten year old is deserving of a "right" that supercedes that of the parent's wrt determining an appropriate course of action regarding therapy.

truepeers said...

ALl the professionals - doctors, lawyers, social workers - need regular kicks in their associational butts to stop their collective will to a bureaucratic, buck-passing power without real responsibility.

Tragedy and responsibility should rest at home and in the closed doors of the office, as much as possible. Transfer it to the public arena, e.g. the courts, and instead of honest standing up to tragedy and responsibility we get statistics and endless finger pointing, litigation, and nanny state cooing over the victims the system helps create and relies on for its fuel.

I can see how the NRA wants out of this system to fund and support lawyers everywhere, but methinks they're digging a deeper hole in the long run, selling their soul to the devil won't make 'em free. Any and all banning must be bad for their business.

vnjagvet said...

Rick:

You are of course right. But, I think the legislators ought to keep their da** mitts off of this kind of stuff from all directions.