It seems to me that Eugene continues to ask the wrong question: "The question
on the table is what questions doctors may ask"? For me the question is what
"treatment" (advice) might a doctor offer given that he is bound by
professional a code of ethics to the patient's medical treatment. It isn't
"the question" that is limited by professional codes, it is the professional
treatment/advice resulting from an answer that is limited by the professional
expectation of "competence." And it isn't the law that limits -- it is
something above the law; it is ethics.
Professional codes of conduct for engineers illustrate "competence" as
essential to ethical conduct. A few examples:
2. Engineers shall perform services only in the areas of their competence.
a. Engineers shall undertake assignments only when qualified by education or
experience in the specific technical fields involved.
http://www.nspe.org/Ethics/CodeofEthics/index.html
2. Engineers shall perform services only in areas of their competence.
http://www.asce.org/Leadership-and-Management/Ethics/Code-of-Ethics/
6. . . . to undertake technological tasks for others only if qualified by
training or experience, or after full disclosure of pertinent limitations;
http://www.ieee.org/about/corporate/governance/p7-8.html
Competence is at the core of a professional relationship -- one uses a
professional for the expertise he brings to a problem. Those who hope doctors
will ask patients about their guns expect doctors to act outside of their
professional expertise in medicine to affect the behavior of patients. Without
some triggering event such as a concern for the patient's mental state, this
act by a doctor would violate ethical limits.
While engineers don't have ethical limits governing personal privacy for their
customers, doctors do and the privacy limit constrains what doctors may report
about patients they treat. Even without a privacy limit, an engineer acting to
advise a business about guns may be violating the "competence" part of his
profession's code of ethics.
Even social worker codes recognize that it is improper to adopt a paternalistic
attitude when advising their adult clients. This also is a "competence" limit
-- a social acting as parent to an adult might influence a client to take
advice contrary to their choice from someone no more expert than is the client.
The way to stop a busybody doctor who won't respect a code of conduct is to
report his conduct publicly.
Phil
________________________________
From: C D Tavares <[email protected]>
To: Firearmsregprof <[email protected]>
Sent: Saturday, January 19, 2013 5:29 PM
Subject: Re: doctor "boundaries"
On Jan 19, 2013, at 3:00 PM, Volokh, Eugene wrote:
> The question on the table is what questions doctors may ask. It doesn't take
> much "authority" to ask questions -- just the same authority (flowing partly
> from the First Amendment and partly from just normal liberty) for you to ask
> me a question, or a doctor to ask me a question. If the doctor wants to ask
> me whether I read Bukowski, I can easily tell him "I'd rather not talk about
> that"; there's no basis for laws (as in Florida) or other coercive measures
> to restrict that, and there is a law (the First Amendment) that limits
> attempts to restrict that.
And if doctors' notes stayed in doctors' desks, that's where it would end.
However, doctors have become a de facto data collection agency for the federal
government, and a lot of what used to be "confidential" information is now
reportable by law to third parties, the biggest of which are governmental
agencies.
So in a very real sense, the doctors' First Amendment now has to stop where the
patient's Fifth Amendment begins.
--
Escape the Rat Race for Peace, Quiet, and Miles of Desert Beauty
Take a Sanity Break at The Bunkhouse at Liberty Haven Ranch
http://libertyhaven.com
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