The Freedom Bulletin

William Anderson at LewRockwell.com has a great article about a brave freedom fighter that the world lost on Christmas Eve. Siobhan Reynolds was an advocate against overzealous federal prosecution of doctors who prescribe pain medication, and its horrible effects on people who suffer from pain. Her husband died after the only doctor who would prescribe him the medication he needed was forced out of business (and thrown in jail) by federal prosecutors. As a result, she founded the Pain Relief Network, with the mission of educating people about pain medication and advocating for those suffering from chronic pain and doctors who treat them. As a reward for her advocacy and courageous exercise of her free speech rights, she became the subject of a grand jury investigation for obstruction of justice, forcing her organization to close.

“Reynolds had a husband, Sean, who had a serious health problem, a congenital connective tissue disorder that left him with debilitating pain in his joints. Like so many others in the USA who suffer from severe chronic pain, he was unable to receive adequate medical relief because the U.S. Drug Enforcement Agency, not doctors, determine what is a ‘legitimate medical purpose’ for prescribing of opioids for pain. However, Siobhan’s husband finally found a physician, Dr. William Hurwitz, a doctor in Northern Virginia, who was willing to write prescriptions for higher doses of pain-killers.

The higher doses worked, and for the first time in years, Siobhan’s husband was able to function at a much more normal level, but such satisfactory results were anathema to the nation’s drug warriors, and especially to U.S. Attorney Paul McNulty, the Religious Right federal prosecutor who might have publicly proclaimed his Christian beliefs, but did not carry them to his line of work…

Dr. Hurwitz, his life and medical practice shattered, his family destroyed, and his future in prison, was not the only victim of McNulty’s viciousness. (While in prison, Dr. Hurwitz developed an eye disorder, and because of the lack of decent medical care provided for federal inmates, he became blind in one eye.) Patients suffering from chronic pain – people who at best McNulty considered to be ‘collateral damage’ – found themselves in a desperate situation. The Hurwitz prosecution not only kept him from writing prescriptions, but other doctors did not want to experience the same fate and refused to adequately treat certain patients for pain.”

Anderson’s article is a must read – he makes excellent points about patients’ rights, prosecutorial and judicial misconduct, the doctrine of mens rea, statutory vagueness, and more. Read it at his blog or at LewRockwell.com.

The headline for this article in LewRockwell.com’s archives reads, “The War on Drugs Is the War for Pain.” What a perfect description of how wrong and misguided the federal government’s policy on prescription pain medications is. It is bad enough that we have the Durham-Humphrey Amendment, which takes away each person’s right to decide for themselves which medications to take, and only allows them to take medications that a doctor approves of. Now, doctors don’t even have the right to prescribe the medications that they think are appropriate. They are browbeaten, by the threat of federal prosecution, into disrespecting their patients’ wishes and depriving them of the pain medications that they need to function. It is unacceptable that, when companies are willing to produce effective pain medications and people are willing to buy them, people are not allowed to gain adequate relief for their pain. What could be a more unworthy cause to fight for, and what could more defeat the purpose of life, than to subject innocent people to needless pain?

If one thing is for sure, it’s that medical costs have gone up recently. A new study showed that health insurance prices rose, on average, 9% in the past year. The Affordable Care Act may very well share the blame for this, and so might the fact that doctors perform too many medical procedures (surprisingly, doctors themselves admit to this).

But logic indicates that the main cause of how much something costs is…well…the price the seller chooses to charge. You wouldn’t think the New York Times would have to do an article on this obvious fact, but they did.

The reason why doctors and hospitals charge so much for their services is simple: because they can do so without losing customers. If you have cancer, for example, you might need chemotherapy to live, and if you have a broken bone, you need to get a cast. People don’t have the option of going without these things if they decide they cost too much money. In economic terms, the demand for health services is inelastic. Governmental policies have exacerbated this problem – for example, the Durham-Humphrey Amendment by requiring people to visit a doctor and get a prescription before being allowed to buy medication, and the individual mandate by actually requiring people by law to buy health insurance.

The only solution to this problem, in my opinion, is price ceilings. This idea has been floated around a little bit, including in California where a bill called AB 52 would limit health insurance price increases, by Massachusetts Governor Deval Patrick, who created a similar policy, and more recently, State Rep. Ron Mariano, who more sensibly focused on the prices of health services themselves, proposing a bill that would limit prices paid to the costliest hospitals. This bill is definitely a step in the right direction.

As such an ardent advocate of liberty, it might appear strange to support government telling businesses how much money they can charge. Shouldn’t people be able to engage in any transactions they choose? But I look at excessive prices as akin not to consensual transactions but to extortion. People have a right to their own money, and doctors do not have a right to suck a person dry of all their money for performing a medical procedure that the person needs to live. Doctors, just like any other merchant, deserve compensation for the services they sell, but because their customers are not truly choosing to purchase those services, doctors should not be allowed to take so much money that people have no more money left to spend on anything else. It would be impossible for everyone to agree on a particular price at which a transaction becomes extortion. But people should certainly be discussing this question and working toward instituting a price ceiling on medical services, instead of continuing to let doctors and hospitals extort people.

There’s nothing wrong with the government setting maximum prices that sellers are allowed to charge for goods and services that have inelastic demand. The Boston Herald called Mariano’s idea “a move toward government price controls, plain and simple.” But I believe there is nothing wrong with that.

There’s a debate going on in Massachusetts about whether written permission should be required for HIV testing or just verbal consent to medical treatment in general. Currently MA is one of only two states that require written consent, and groups who want to encourage more testing are trying to change this. Personally I don’t really care whether consent is verbal or written, but I think there need to be stronger, not weaker, consent requirements for all medical procedures.

We live in a system where, when someone goes into a doctor’s office, the doctor usually just tells them what medical tests they are going to have, maybe asking, as an afterthought, if that’s OK. This is wrong. As I explained in a blog post from yesterday, this is not true consent. Many people, especially if they are shy by temperament, find it difficult or impossible to refuse what a doctor tells them to do. We need a system where the patient, not the doctor, is in charge of medical decisions. Instead of saying what medical procedures are needed, doctors should tell people what services they offer (perhaps through a brochure, sheet of paper, or sign) and the person can indicate which services they would like, with advice from the doctor only if asked.

Another part of the proposed law would require doctors’ offices to have written permission before sharing a customer’s HIV status. This seems pretty reasonable. People should be in control of their own medical records, and it should be a no-brainer that doctors should not share information without the permission of the person the information is about. But of course, doctors had paternalistic and pompous things to say in opposition to the law:

Dr. Howard Heller…said the legislation would mean that each time he referred an HIV patient to a different specialist outside of his organization, he could not tell that provider about any HIV-related medications that patient was taking, without first getting the patient’s written permission.

And that’s a problem why?

“Each time we share information we would have to have written informed consent…and each step we put in the way puts more impediments to getting tested,” said Dr. Stephen Boswell.

That’s right, how dare the wishes of the people he is supposed to be serving get in the way of making them to do what he wants? I know doctors are trying to make people healthier, but too many of them have lost sight of the idea of liberty and the dignity of individuals. Doctors need to give up their paternalistic attitudes and start treating their customers with respect, just as members of any other profession would. They need to focus less on what they think is best for their patients and more on their patients’ wishes.

Last week federal judge Marcia Cooke overturned the Firearms Owners’ Privacy Act, a Florida law restricting doctors from asking people about guns unless there is a compelling medical reason.

The debate over this law involves an interesting conflict between the First and Second Amendments. The founding philosophy of America (and one that I strongly believe in) is that people have the right to live their lives however they please, as long as they don’t interfere with anyone else’s right to do the same. The right to bear arms is part of this and is specifically protected in the Bill of Rights, and so is freedom of speech. One person’s right to free speech should only end when another person’s liberty begins. But where exactly do you draw the line?

In my opinion, speech designed to pressure another person into acting as you want them to violates that person’s right to live their life as they please. Doctors, motivated by the desire to make people healthier, are one of the biggest culprits of this. When doctors ask people questions, or tell them what to eat, how much to exercise, or what medical tests to have, they are not using physical force, and people are not obligated by law to comply. But I still believe that this is coercive and therefore should not be protected by the First Amendment. Due to doctors’ elevated status in our society, it is difficult, if not impossible, especially for shy people, to refuse to answer a doctor’s questions or to decline medical procedures that a doctor firmly instructs them to have. Doctors need to treat their patients more like customers, only performing the medical procedures that the customers indicate they want and only giving advice when it is asked for. This might sound like a radical proposition, but a customer’s gun ownership is not a doctor’s business, nor are their eating habits, exercise, emotional state, sex life, drug use, or really any aspect of their life. What we need are more laws restricting doctors, however well-intentioned, from using their authority to pressure people into giving up their privacy rights or their freedom to live as they choose.

The Firearms Owners’ Privacy Act doesn’t even go as far as the laws that I would support – it still allows doctors to ask about guns if there is a compelling medical reason, and it doesn’t outright ban such questions but merely says that doctors “should” refrain. It was wrong to overturn this law. Florida Governor Rick Scott is appealing the decision, and I hope he prevails.

Last week, Paul Krugman wrote in the New York Times that “patients are not consumers.” He asks,

“Here’s my question: How did it become normal, or for that matter even acceptable, to refer to medical patients as ‘consumers’? The relationship between patient and doctor used to be considered something special, almost sacred. Now politicians and supposed reformers talk about the act of receiving care as if it were no different from a commercial transaction, like buying a car — and their only complaint is that it isn’t commercial enough.”

My question is, how did it become acceptable to refer to people who receive health services as “patients” and to refer to the services themselves as “care”? Why did society decide to think and speak about health services as if they are fundamentally different from other goods?

I’m assuming that if Krugman objects to health services being treated the same as other services and products, he must be in favor of the prevailing system, in which people are widely presumed to be incapable of making decisions about their health and are expected to obey whatever doctors tell them to do. But this paternalistic view deprives people of dignity and freedom.

Krugman gives the following reasons for his view:

“Medical care, after all, is an area in which crucial decisions — life and death decisions — must be made. Yet making such decisions intelligently requires a vast amount of specialized knowledge. Furthermore, those decisions often must be made under conditions in which the patient is incapacitated, under severe stress, or needs action immediately, with no time for discussion, let alone comparison shopping.”

Perhaps medicine is an area where decisions tend to have weighty consequences and professionals tend to have extensive training. But this doesn’t make it fundamentally different from other professions. Chefs, photographers, interior designers, personal shoppers, and investment bankers all have training and expertise, and their work affects people’s well-being to various degrees, but people who use their services are still considered consumers, and it is also considered perfectly acceptable, by the law and society, for people to cook their own food, take their own photos, decorate their own houses, buy their own clothes, and invest their own money.

In all areas, people should have the right to make any decision they want, as long as it does not violate the rights of anyone else. This includes making decisions that are risky, unwise, or based on non-expert knowledge. I think that ordinary people are more capable of making medical decisions than Krugman gives them credit for – almost anyone can read about the benefits and risks of a medicine or procedure and decide whether they want it or not. But even if specialized knowledge is required to make certain decisions “intelligently,” people have a right to make unintelligent decisions. For situations where a person is incapacitated, we could create a system in which people can easily register their medical preferences ahead of time and know that they will be respected. Even when a person “needs” medical attention immediately, they should still be free to take as long as they want to decide (even if this is unhealthy), to make a quick decision themselves (even if it may be the wrong one), or defer to a doctor’s judgment if they so choose. And severe stress is certainly no reason for people to be unable to make their own decisions.

“The idea that all this can be reduced to money — that doctors are just ‘providers’ selling services to health care ‘consumers’ — is, well, sickening,” Krugman writes. No, the idea of doctors and their customers as equals, engaging in voluntary transactions, is beautiful. What is truly sickening is a society and legal system that considers it inappropriate for people to make decisions about their own bodies. Any change toward viewing people who receive health services as consumers is a good change, which the world desperately needs more of.