And yet this appeal case Eugene cites rejected the Constitutional right ("We
also reject appellant's constitutional challenges as lacking merit under either
the federal or Nevada constitutions.") that Eugene has advanced.
Ethical rules govern ethical men not from fear of penalty, but a man's sense of
honor and wish to do right. Of course professional societies may have
extralegal procedures to admonish misbehaving members or to eject them. And if
such a member appeals to the courts, that part of government may be engaged.
But Gentile v. State Bar of Nevada gives no support that a lawyer may violate
ethical constraints under the guise of "free speech" protection.
Doctors who go outside of medicine might be vulnerable to a malpractice suit by
the patient in addition to the action by a professional society so patients who
receive advice on guns should make sure to get this advice in writing and on
the record.
Phil
________________________________
From: "Volokh, Eugene" <[email protected]>
To: Firearmsregprof <[email protected]>
Sent: Sunday, January 20, 2013 11:34 AM
Subject: Re: doctor "boundaries"
I am at a loss to grasp the last sentence, but let me turn to
the substance. If the proposal is simply “ethical restrictions” in the sense
of “good people should condemn people who do this-and-such,” then I have little
to say about it. But if the proposal is “ethical restrictions” in the sense of
rules of professional conduct that could lead to the loss of a license, to
fines, and so on – as was the case with the Florida law, and as at least the
C.D. Tavares posts on this thread suggest – then the First Amendment most
certainly does apply to such restrictions. It is, after all, governmental
bodies that would enforce these rules (just as they enforce “ethical
restrictions on speech” imposed by lawyers, see, e.g., Gentile v. State Bar of
Nevada).
Eugene
From:[email protected]
[mailto:[email protected]] On Behalf Of Phil Lee
Sent: Saturday, January 19, 2013 9:32 PM
To: Firearmsregprof
Subject: Re: doctor "boundaries"
This discussion has nearly run its course.
First Amendment rights apply only regarding action by government and not to
ethical restrictions on doctors (since lawyers are also bound by ethical
restrictions on speech, I wonder why Eugene doesn't grasp the point); I haven't
proposed government limits on speech and have made that so abundantly clear
that I must declaim any responsibility for Eugene's missing the point.
Eugene clearly feel the need to transform the issues into something different
from the ones I raise; the child he is defending is so ugly and the defense so
vigorous that I suspect he might have been there when it was conceived and
feels a parent's responsibility.
Phil
________________________________
From:"Volokh, Eugene" <[email protected]>
To: Firearmsregprof <[email protected]>
Sent: Saturday, January 19, 2013 10:53 PM
Subject: RE: doctor "boundaries"
This argument strikes me as oddly similar to many gun control
arguments – because some people may act badly based on certain information, we
should bar them from even asking for that information, even if that means
restricting what would otherwise be constitutionally protected speech.
A doctor may act in lots of ways based on the answer he gets to
a question about guns. He might give perfectly sensible advice that has to do
with safety (e.g., “Now that you have kids, make sure that your guns are
properly secured”). He might give advice that is plausible even if
controversial. He might give foolish advice that actually causes harm or is
likely to cause harm. Or he might for that matter give advice that the
listener will understand isn’t expert advice; if I as a lawyer, for instance,
tell a client that he should have that mole looked at because it might be
cancerous, I have neither violated my professional responsibility as a lawyer
nor engaged in unlicensed practice of medicine, just as anyone who tells an
acquaintance the same hasn’t engaged in unlicensed practice of medicine.
But because of the risk that the doctor’s speech to the patient
– I mean here the initial question about guns – might lead the doctor to give
advice that is so bad as to constitute malpractice (or for that matter because
he’s a “busybody”), the proposal is to restrict that speech. I think that’s
neither wise nor constitutional.
Eugene
From:[email protected]
[mailto:[email protected]] On Behalf Of Phil Lee
Sent: Saturday, January 19, 2013 5:01 PM
To: Firearmsregprof
Subject: Re: doctor "boundaries"
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
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