There is a miranda-like requirement in the AMA code of conduct: "When the
disclosure of confidential information is required by law or court order,
physicians generally should notify the patient." (see
https://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion505.page?
), but it is not strong enough to protect a patient "generally".
Phil
________________________________
From: "Volokh, Eugene" <[email protected]>
To: Firearmsregprof <[email protected]>
Sent: Sunday, January 20, 2013 3:47 PM
Subject: RE: Doctors asking patients about guns and the Miranda analogy
Well, I'm not sure why "one would think that the
confidentiality of a doctor and a lawyer would be equivalent," given that the
law does not -- and to my knowledge, never has -- provided for such
equivalence. See, for instance, Cal. Civil Code sec. 998, which expressly
provides that the normal doctor-patient privilege doesn't apply to criminal
proceedings; moreover, there are lots of contexts in which doctors are actually
required to reveal information they learn during examination of patients, such
as reporting gunshot wounds, reporting communicable diseases, and so on.
If you think that this is an unfair surprise to patients, then
it might make some sense to require a doctor to warn patients up front that
things they tell the doctor will not be confidential for this or that purpose;
there would be costs and benefits to that approach, but I can see that making
sense. That wouldn't be a matter of Fifth Amendment rights, since the doctor
isn't in a position to compel a patient to say things, but it could be a
plausible argument.
But to somehow single out for prohibition doctors' mere
questions to patients about guns – questions that would generally not lead to
reports to the police – or even to require a warning only as to such questions
(as opposed to the many other questions that could yield information that might
end up being reported to government authorities) strikes me as hard to justify.
Indeed, given the narrowness and underinclusiveness of any such requirement
with respect to the ostensible interest in warning patients about the risk of
disclosure, the requirement sounds more like an attempt to suppress potential
doctor advocacy that one thinks is unsound rather than a genuine attempt to
just warn patients that what they say might conceivably end up being disclosed
to the government.
Eugene
C.D. Tavares writes:
> 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.)
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