That's certainly one way of looking at it. Here is another.
In the eyes of the average citizen, one basic difference between the cop and
the doctor is that nobody is ever going to mistake the cop for a professional
that the citizen has personally hired in order to perform a service to his own
benefit. The citizen is much more likely to understand that nothing he tells a
cop is confidential from the government; conversely, he is much more likely to
assume (incorrectly these days) that what he tells a doctor is confidential
from other parties. The patient assumes that freely answering a doctor's
questions under classical confidentiality will accrue to the benefit of his own
health, not be used to indict him.
To exploit the relationship between a patient and the doctor in order to obtain
information that the government would not otherwise have gotten is an abuse of
trust, similar to a cop's use of a criminal informant to illegally enter a
target's residence and gain knowledge about where probable cause could be
found, knowledge that the cop could not gather personally.
A criminal can feel entirely safe telling his lawyer, to secure his legal
well-being, that he did, in fact, commit a crime*, in assurance that this
information will never find its way to the prosecution. One would think that
the confidentiality of a doctor and a lawyer would be equivalent; yet, under
today's laws and regulations, precisely the opposite is the case. This is why
I bring up the Miranda analogy.
Whether for one's legal or medical well-being, one should be able to surrender
certain facts to a professional in confidentiality without surrendering his own
fifth amendment rights by allowing the government to compel the professional
instead of the patient.
If an ethical panel of a private certifying association can prohibit a doctor
from surrendering his patient's fifth amendment rights in the name of his own
first amendment rights, I'm all for it.
*(Yes, I realize that if the case were that the client was GOING to commit a
crime, the rules change, but that's irrelevant to the enormous disparity
between the nature of legal and medical confidentiality even short of that
situation, which is the issue here.)
On Jan 19, 2013, at 8:59 PM, Volokh, Eugene wrote:
> It seems to me the Miranda principle cuts in precisely the
> opposite direction. Recall that Miranda applies only when a police officer
> questions a suspect who is in custody. Even though a police officer always
> has some degree of coercive authority, non-custodial questioning isn't
> governed by Miranda. On top of that, it's not illegal for the police officer
> to question a suspect without Miranda warnings even when the suspect is
> custody; it's just that the statements can't be admitted at trial against the
> suspect.
>
> Patients aren't in custody; they aren't under arrest, or
> otherwise coercively restrained by the doctor. They are free not to answer
> questions, and I'm pretty sure they already know they are free not to answer
> questions. (What's going to be happen if you don't answer - you'll get
> prosecuted for "obstruction of medicine"?) This is the sort of situations
> where no warnings are required even when the questions are asked by police
> officers who carry guns and who have the power to arrest you. And the theory
> is that Miranda somehow provides justification here for restricting the
> doctor's First Amendment rights? I don't see that.
>
> Eugene
>
>> Under the Miranda principle, suspects who are too ignorant to know what
>> rights they have must be informed of them before they are questioned. The
>> principle is that it is unfair to the point of unconstitutionality to
>> exploit a
>> suspect's ignorance of his protections.
>
>> A doctor who questions a patient about his gun ownership may eventually (if
>> not already) be forced to report the results to insurers and government
>> entities.
>> Most patients are unaware of this consequence. The "boundary violation"
>> approach is aimed at preventing exploitation of the patient's ignorance,
>> under
>> the theory that if we cannot inform the patient of the risks of answering,
>> perhaps we can prevent the doctor from asking.
--
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
_______________________________________________
To post, send message to [email protected]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
