I was surprised to find out this summer that there are significant potential legal constraints on what doctors (and presumably other providers) ask during a patient encounter and that doctors speaking with patients is outside of “free speech” protected by the constitution and instead everything said is considered “treatment”. Turns out that the government has “broad authority to prohibit doctors from asking questions on particular topics”
There is a case in Florida (Wollschlaeger v Governor of Florida). As they note in the article, this law ‘concerned the constitutionality of the Florida Firearm Owners Privacy Act. That 2011 law threatens doctors with professional discipline if they ask patients whether they own guns or record the resulting information in a patient’s files when doing so is not “relevant” to a patient’s medical care’. They do note that there may be reasonable disagreement as to what “relevant” means. not particularly shocking is that the NRA believes that asking if there are guns in the house is none of the doctor’s business (though the Am Acad of Pediatrics does include this as one of the questions that should be asked!!). By a 2-1 vote, the 11th circuit held that doctors asking questions is in fact “treatment” and not protected by the First Amendment. What if another powerful lobby (e.g. tobacco, or alcohol) lobbied successfully in some states to bar doctors from asking relevant questions about these substances?
This is not just an archaic, marginal, not-particularly-relevant issue. In Texas, the veterinary board used this argument to prohibit licensed veterinarians about giving advice about an animal they did not examine. In Kentucky, the Board of Examiners of Psychology “sent a cease-and-desist letter to a newspaper columnist claiming that his widely syndicated parenting column was unlicensed — hence criminal — practice of psychology” !!!!!!
Geoff