Self incrimination? At the doctor's office?

Dr. Helen raised the issue of doctors asking their patients about gun ownership, and she linked a post by GruntDoc condemning a proposal which would prohibit doctors from questioning their patients about guns.

GruntDoc sees it as an attempt to limit medical practice and as a free speech issue, and I see his point. If there's one place the government does not belong, it is anywhere in the confidential relationship between patient and physician. But what worries me is that there's more to it than that. The state is already involved, bigtime. So are the insurance companies, which are about an inch away from being de facto part of the government. As one of Dr. Helen's commenters pointed out, doctors are often only asking about guns because insurance companies tell them to:

Hum... The last time I was posed this question on a form (my initial visit to a particular doctor), I answered "No, but it's none of your business."

He did apologize, but claimed that he was required to ask by the insurance companies.

If the doctor is forced to ask the question, how can it be "free speech"? 

And what about the patient? Does he understand that he has a free speech right not to answer or is there a certain amount of compulsion inherent in a question by a doctor about a patient's personal life? Many doctors these days are anti-gun activists, and the patient might have a number of good reasons in not wanting to tell him that he has guns. What should he do? It's easy to tell him to stomp out of there and find another doctor, but suppose it's a big HMO and he can't select his doctor. Suppose it's his assigned personal primary care physician and he needs help right now because he's sick and can't wait for the bureaucrats to reassign him after a long search for a replacement followed by an even longer phone call to the damned company. What if the patient wants to keep his gun ownership in the closet because he fears government gun grabbers? Should he refuse to answer (thereby inviting more questions and more attention from the insurance company) or should he simply lie?

This raised another troubling question in my mind.

Is there a right to lie to a physician? I'm not saying it's a good idea to lie to your doctor, mind you. Lying to your doctor (especially about health issues) is a recipe for personal disaster. But in the normal course of life, lying is within the rubric of what we call free speech -- every bit as much as the right to ask an annoying or invasive question.

Let's take questions like these as an example:

Do you smoke?

Do you drink?

Do you eat processed foods, sugar, or soda?

Do you always keep your seat belt fastened?

Do you always shut off your car engine when idling to save energy and do other things to reduce your carbon footprint?

Do you drink only shade-grown, fair-trade coffee?

The first four questions mostly pertain to health, so they might properly be asked by a doctor. But if you are not in the mood for a stern health lecture, should you be able assert the same "free speech" right to lie that you can with the last two questions? Putting aside the stupidity of lying to your own doctor, does the doctor's status as a quasi-authority figure change anything in this equation?

What about the fact that anything you say to your doctor can and will go into your medical records, and these records can then be examined by the insurance company?

What is "free" in the First Amendment sense about that kind of speech?

What worries me is that we are fast approaching a point where lying to a doctor will soon be insurance fraud if it isn't already. Insurance fraud is a crime. And when a doctor is required to ask questions by an insurance company, how far is that from the patient being obligated to answer?

And unlike voicing an opinion about a political issue, answers to such questions by doctors can have consquences. Sometimes legal consequences, as a man found out when he told his doctor he drank a six pack of beer a day. The doctor reported that to the DMV, which took away the patient's drivers license.

Not surprisingly, doctors not only tend to see themselves as authority figures, but they are increasingly becoming actual authority figures, with real power over patients. An emerging trend is that just as lying to the police is a crime, lying to a doctor is considered insurance fraud:

"Doctors can't always promise to conceal the truth. I can say lets talk about it, but I can't promise it won't go into the record. We won't falsify our records. I won't say a patient doesn't smoke when he does. If you're trying to hide something from your insurance company, or trying to keep smoking or drug use out of your insurance history or record, that is a shame or a problem or both.

"I don't think you should lie on a medical record. If you lie to your physician, and that becomes part of your insurance record, you are subject to fraud. It is better not to lie, period. You may say this is something I don't want to talk about. But for legal reasons, I don't think patients should lie on insurance records. Worrying about increased premiums is not a justification for fraud.

"If there is something you are doing you can't share with someone, maybe you shouldn't be doing it. If there is something you can't even tell your doctor in privacy, you should think about whether this is an appropriate behavior or decision. If you are drinking so much you can't even tell your doctor how much, this should hit you upside the head as a warning sign that something is very, very wrong with your health."

I agree that lying to a doctor about such things is stupid and self-defeating, but if doctors are required to rat on their patients and lying to them is considered a crime, then what is left of physician-patient confidentiality? Why should patients tell the truth to their doctors? 

To illustrate how precarious the situation is, one doctor actually recommends giving Miranda-style warnings to patients:

Peel says all doctors should give their patients a "Miranda-like warning" that anything they say or treatment they receive may wind up being shared with a third-party payer (like an insurer). "Ethically, doctors and all mental health professionals are responsible to disclose anything that might possibly harm their patients, including the fact that information they share with you might possibly be cause for an insurance denial later on."

While I think it is horrible that things have reached such a point, they are only going to get worse. Your medical records are poised to become government property.

When Democrat operatives were discovered to be snooping into Scott Brown Family's Medical Records, Glenn observed,

Just think how much easier that sort of thing will be for them once ObamaCare is fully implemented.

Just think is right. 

And just thinking about these things gives me the heebie-jeebies.

Medical Miranda warnings are absolutely in order. So, it isn't so much the First Amendment we should be worried about here as it is the Fourth Amendment.

(Not a new issue here, but these days hardly anything is....)

posted by Eric on 04.02.11 at 02:46 PM










Comments

Medicare, Medicaid, Social Security.

The government is the insurance industry.

M. Simon   ·  April 2, 2011 3:46 PM

In my home state--conservative, fairly pro-gun--I get the impression that medical people sometimes just go through the motions of complying with insurers' regulations. My family doc recently joined a big group that required him to post no-weapons signs at his door, but I doubt if he would have me arrested if he saw me carrying. At another clinic the questionnaire asked, "Do you own guns?" I left it blank and no one said a word.

notaclue   ·  April 2, 2011 8:37 PM

notaclue, what you have just done is put your freedom at someone else's discretion, because someone can decide on a whim to enforce that selectively on you.

Let's none of us forget that Scooter Libby was convicted of perjury because his recollection of a conversation differed from a reporter's, and the jury, whose foreman was quoted as saying "we really wanted to convict Cheney, but we weren't getting a chance to do that", could express it's political opinion.

It's at the point where you should record everything you say or do so that someone can't just make shit up about you and then use a legal system that no longer requires actual evidence to screw with you.

SDN   ·  April 3, 2011 10:19 AM

The thing to do is to avoid insurance. If the government will let you.

Live free or die.

M. Simon   ·  April 3, 2011 10:50 AM

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