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Health Care Freedom

Freedom is a cherished commodity in our culture, as it should be. Our laws are largely based upon the premise that individuals should have the liberty to do what they want, unless there is a compelling public or governmental concern that overrides such liberties.

It is therefore no surprise that freedom is a common marketing theme – selling the idea of individuality or personal freedom of choice.

The marketers of dubious, unscientific, or fraudulent health care products and services are savvy to the marketing theme of freedom and have used it to great effect. It is all ultimately, however, a deception. There is an ulterior motive that has nothing to do with the freedoms of the public but rather is an end run around regulations meant to protect the public.

Health Care Regulation and the Standard of Care

The primary deception of the health care freedom movement is that it pretends to be about the freedom of the individual consumer, but rather it is about the freedom (from regulation and the standard of care) of the seller or provider. Health care freedom is ultimately anti-consumer and pro-industry.

To understand this you have to understand the contract that health care providers have with society and the role of regulation.  Selling health care services or products is not a universal right. Rather it is treated as a privilege, one that is earned by adhering to a certain quality control standard. The obvious purpose of this is to protect the public from useless, harmful, or fraudulent health claims or practice.

Practitioners earn this privilege through licensure, which requires completion of a proscribed training program, the passing of exams, and adherence to a set of ethics and guidelines. Most people would agree that not anyone should be allowed to hang up the proverbial shingle and start performing brain surgery. Conversely this means that the public should be protected from untrained charlatans trying to pass themselves off as brain surgeons.

This regulation of practitioners is also tied to the concept of the standard of care. This means that if one is licensed as a medical physician, they should practice medicine. Having a license as a specific kind of professional should not allow one to do anything under that umbrella. In health care this means staying within the broadly defined standard of care.

Practitioners who stray too far from the accepted practices of their profession can be disciplined by the states who grant them their license. This is reasonable because the license to practice is a privilege that comes with specific strings attached, including the requirement to stay within the scope of practice of your profession.

For products there are federal regulations meant to protect the public from fraud or harm. The FDA in the United States controls drugs and medical devices and has very rigorous standards of evidence for both safety and effectiveness.

Health Care Freedom

There are those with a libertarian political bent who argue that all this quality control is not necessary, that the free market can sort it all out, or that individual freedoms are more important than protecting the public from bad medicine. Although I strongly disagree with this position, I grant this is largely a political position – which means it is partly a personal choice. What do you value more – protection or freedom?

However, there is another group promoting health care freedom, and not because of their libertarian ideology. Specifically these are practitioners who wish to be freed from regulation or the scope of their license and those who wish to sell products that either violate FDA regulations or that are simply fraudulent.

These two camps have found common cause (for example). Libertarian Ron Paul has embraced so-called alternative medical practices and made it part of his campaign against “unbridled government regulation.”

(As an aside, recently, to add a bit of confusion, the term “health care freedom” has been adopted by several organizations who are promoting freedom to choose one’s own insurance plan and physician. This has nothing to do with the health care freedom movement I am discussing.)

Health Care Freedom Laws

Sixteen states in the US have so-called health care freedom laws. Essentially what these laws do is create a double standard. The wording in each state is different, but their effect is the same – a practitioner of unscientific methods cannot have their license taken away or acted against because they are practicing substandard care as long as that care is deemed “alternative.” In other words, if an MD is practicing “conventional” medicine but what they are doing is significantly below the standard of care (it is demonstrably unsafe or ineffective), the state can act against their license. If, however, the same physician practices the same incompetent medicine, but labels it “alternative” they are immune from any action.

I have personally encountered exactly this situation. I was asked to give standard of care testimony against a Florida neurologist who was practicing, in my opinion, outright quackery. It was determined by the court, after hearing all the testimony, that indeed the physician was practicing substandard care. However, he appealed under Florida’s health care freedom law, claiming that what he was doing was alternative, and this appeal was successful. So now he is free to practice his unmitigated quackery, unhindered by any quality control.

Unfortunately these laws are making steady progress. There are groups who relentlessly lobby for such laws, usually under the public radar. Slowly, the standard of care is being erased from medical practice.

Conclusion

Essentially, con artists, charlatans, and snake-oil salesmen have discovered that they can shield themselves from regulations meant to protect the public from their malfeasance by simply cloaking what they do in the flag of freedom.

They have found common cause with those who are sincere, but simply misguided – they believe that their treatments are effective and valid and are frustrated by the fact that they are not validated by science and do not meet the standard of care. Failing to win acceptance for their modality with research, they then dismiss the standard of care as biased against them, and seek to subvert it.

The promoters of dubious indications for chelation therapy, for example, have been on the forefront of the health care freedom movement.

Finally, they have joined forces with the ideologically libertarian,who oppose government regulations of all kinds. At least libertarians are honest about their agenda – they want less government regulation.

Ultimately issues of regulation vs freedom are societal and political. They are not strictly about science, although with regard to medicine the standard of care is (or at least should be) based upon scientific evidence. My point in this post is not to take a political side. Rather, to point out the real agenda and implications of the health care freedom movement.

Health care freedom laws are about giving practitioners and marketers freedom from regulations and the standard of care. It is not about the public’s freedom of choice. It is about eliminating scientific standards for those who want to engage in unscientific practices.

There is also a parallel to be made with other recent “freedom” movements, such as creationists promoting academic freedom. Science teachers and professors who want to teach their religious views or simply nonsense that is not accepted by the mainstream scientific community as science, are playing the same “freedom” card. They confuse (or at least pretend to confuse) legitimate measures to ensure academic quality with oppressing academic freedom. But what they really want is to subvert academic quality to their own ideological agenda.

I don’t mind honest and open discussions about the proper balance between freedom and regulation for quality control.  But the health care freedom and academic freedom movements are not honest and open. They are deceptive about their true intention. To them “freedom” is just a marketing ploy.

Posted in: Politics and Regulation, Science and Medicine

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19 thoughts on “Health Care Freedom

  1. Jules says:

    See, if we had a national health care system in place, it would be possible to standardize everything and then nobody would be allowed to say anything contrary to the establishment

    /snark

    We’re thinking of regulation from the wrong end. Quackery should be regulated the way alcohol and tobacco are: from the customer’s perspective. Basically, you tell patients the following: “if you go to a physician who practices medicine in accordance to our licensing criteria, and something goes wrong, you can sue for medical malpractice. If you go to a physician who practices alternative medicine and something goes wrong, you cannot sue for medical malpractice.” All that would be required is that the doctor clearly display what kind of medicine he practices. This has the elegant solution that, if the doctor says he practices conventional medicine but tries to practice CAM, he can be disciplined.

    People are, by nature, averse to risk. They may be tempted to try CAM because of the promises that practitioners swear by, or maybe they haven’t found a doctor that works with them*, but if they’re going to be the ones shouldering the risk of something going wrong, they’ll be a lot more careful about what they buy.

    *I had 2 practitioners and a dermatologist diagnose my impetigo (which I picked up from the gym) as “just another flare-up of your eczema”. I knew it wasn’t just another flare-up, but they had the MDs…I’m still miffed about this, because I had a textbook case and 3 doctors missed what I diagnosed myself during microbiology (at the time I got it, I wasn’t in medical school yet, so I could still be persuaded that iwas a flare-up).

  2. Jules – this is an interesting idea, but I think it would not be adequate. When people are desperate, they won’t care about the risk. People are risk averse, but research shows they are more afraid of missing out on a potential boon then suffering a risk of loss.

  3. nixar says:

    @Jules: you’re confusing health /care/ with health /insurance/.
    Most countries with universal health insurance have just as much freedom of choice of care as in the US in theory, and much more in practice.
    Here in France for instance, you don’t have a choice of primary health insurance, but you have near complete choice of care provider. Try that with an HMO.

  4. overshoot says:

    This reminds me of Gresham’s Law.

    We’re already seeing the future here in Arizona: physicians are declaring themselves “homeopaths” and choosing to be licensed under the homeopathic board, because doing so is pure upside. The scope of practice for a “homeopathic physician” in Arizona is, for all practical purposes, unlimited. In addition, the standard of care is pretty much “anything goes.”

    As a result, it’s nearly impossible to sue a “homeopathic physician” for malpractice. Sure, someday that will change but for now the insurance cost for a “homeopathic physician” is lower than for someone operating under medical licensure — and that goes straight to the bottom line.

    So far, relatively few practitioners are taking advantage of this but in time as the economic pressure continues ….

  5. When talking about the politics of health regulation, Steve says:
    “What do you value more – protection or freedom?”

    I’d argue that is a straw man and a false dichotomy.

    The straw man is that regulation protects us more than it harms us, and, from the evidence collected by economists who study such things, it looks like that isn’t true. See, for example, fdareview.org for pointers to the research on drug regulation.

    And the false dichotomy is that you can’t have both freedom and protection. It’s the same false dichotomy based on fear that has been used to erode our civil rights over the last 8 years.

    overshoot’s comment about physicians in Arizona getting around regulations by declaring themselves homeopathic is interesting; perhaps there is a natural experiment here that would tell us whether or not the regulations are effective (compare patient outcomes in Arizona versus a nearby state, and see if they get worse over time as more and more physicians work around the regulations…)

  6. Oops, I just realized I confused my logical fallacies– replace “straw man” with “unstated major premise” in my comment above…

  7. Zetetic says:

    “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Benjamin Franklin

    Just kidding… Excellent and concise post, I’ll keep your points handy in my brain when I confront alties – It’s getting to be practically a daily occurrence! Just a couple of weeks ago we were out to dinner with a group – mostly graduate educated – and since we were all getting on in years, the table conversation eventually turned to our various ailments. Virtually everyone had an anecdote for some sort of alternate remedy. Ginger for car sickness nausea, an alternate naturopathic medication with no side effects (duh!), a chiropractic treatment that I recognized as a standard physical therapy exercise, etc. All too often, I’ve had to bite my tongue to be civil in these conversations! How can we “be nice” in these situations and still be educational this important realm of public health & safety?

  8. gavinandresen – If the government tells you that you cannot sell a drug to a consenting adult, that is a limitation on your freedom, even if the intention is to protect that person from a harmful drug.

    I agree that there are some things we can do to increase protection that does not limit freedom – like providing information. But by stated premise (not unstated) is that some measures of quality control and standard of care by necessity limit freedoms.

    You are now making a counter claim that regulation does more harm than good. While this is a complex topic outside the scope of a comment, I will just say that I strongly disagree with this position.

    I also note that the reference you provided makes similar claims and does not reference their specific claims. Rather, they have a reference page which does not contain data that supports their claims – a big red flag. For example, they reference this article (http://www.iflr.msu.edu/BookStudentPapers_files/Durian.Food%20Law%20Final%20Paper.pdf) which make a strong argument AGAINST their position – if you actually bother to read it.

    In essence, DSHEA has provided us with a social experiment – we can compare the deregulated supplement industry with the highly regulated drug industry. The explosion of worthless supplements to a multi-billion dollar industry should be all the evidence we need for the net benefits of regulation.

  9. Fizzizist says:

    I can see these people’s tactic of using the word “freedom” do to the fact that whenever a person hears it they think that freedom is good, when in this case it is almost the complete opposite. Giving the system so-called “freedom” would lead to the end of health care being safe and reliable.

  10. Jules says:

    @ Steven:

    I tend to think that, if you’re that desperate to play the field with your own health, you’re probably doomed. Or a Darwin candidate :-)

  11. Dr. Carbon says:

    How can we be free to choose quality health care if the pool of options is contaminated by practices that do not improve health?

    Once the practice has been shown, scientifically, to improve health, it may then enter the market place. If unproven practices are part of the pool of health care options, the issue ceases to be about “health care freedom” but is instead about “health care roulette”.

  12. DogLady says:

    Desparate? Cancer victims are very desparate, and are those most frequently targeted by these ‘freedom’ mongers. Think laetril and other non-treatments that the sCAM practitioners push. But to suggest that these patients are somehow deserving of what they get (namely, an early and often painful death) by referring to them as ‘Darwin candidates’ is insulting.

    All most non-medical people know about cancer treatment is that it’s painful, disfiguring, and may not even work. There are very real reasons to restrict medical practice – it is so complicated the general populace can’t understand it. Hence, they fall easy prey to the sCAM artists out there.

  13. Jurjen S. says:

    Quoth Dr. Novella:
    “What do you value more – protection or freedom?”

    “If the government tells you that you cannot sell a drug to a consenting adult, that is a limitation on your freedom, even if the intention is to protect that person from a harmful drug.”

    We’re talking about the freedoms of two different entities here, though, aren’t we? From the patient’s point of view, it does not affect my freedom if the government places limitations on who can sell health care services to me, provided I can acquire said services from someone (i.e. a licensed physician). In that sense, Gavin Andresen is correct that the patient/consumer is not required to accept a restriction to his own freedom to receive protection against a sub-standard level of health care.

  14. I agree with the larger point, by the way– the word “Freedom” is hijacked all the time for all sorts of purposes (“you want Freedom Fries with that?”…)

    And having two different sets of Officially Sanctioned medical practitioners is also bad; most consumers probably aren’t skeptical enough to figure out that a government-certified quack is still a quack.

    I hope that the same skeptical tools we use to try to separate truth from fiction can be used to figure out how to improve the political system we have now so that the charlatans and liars have a tougher time fooling people… but that’s probably a topic for a completely different blog.

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  16. bonedoc says:

    Our patients are less likely to be seeking freedom for its own sake than to be seeking relief of symptoms and improvement in health. The political problem as I see it is the arbitrary dichotomies in regulation of various aspects of health care. Why should we have one standard of safety and efficacy for a pill in a bottle if we call it a pharmaceutical, but another standard if we call it a supplement, and yet another standard if we call it a homeopathic? I recommend that we have the same standards of safety and efficacy for all of them. I believe it should be a high standard requiring scientific evidence for both safety and efficacy. There are apparently similar dichotomies in our standards for people who provide healthcare. Why should Arizona have a different standard of care for a practitioner labeled as a homeopath from one labeled as a physician (assuming the example above is a fair representation of the situation)?

    Patients will accept a fair regulatory environment whose restrictions honestly protect them from fraud, quackery, and harmful practices. They don’t seek the freedom to be cheated and lied to.

  17. Fifi says:

    While I suspect this is already on the radar of quite a few of the bloggers here, I was wondering if any of you would be writing an analysis of the major players who are lining up to define public healthcare in the US.

    There’s an interesting article in the Washington Post that’s alerted me to the fact that Newt Gingrich has positioned himself as a major player. I can’t help wonder about the name of his for-profit Center for Health Transformation, it sounds rather alchemical! I also wonder at the article’s premise that there’s a consensus between medical academics, insurance corporations and those involved in medicine and healthcare in general about the changes that need to be made (and somehow I doubt patients being able to access their own medical records online is really something medical academics and/or doctors think is a fantastic idea…it all sounds like more SCAM Health FreedomTM).

    http://www.washingtonpost.com/wp-dyn/content/article/2008/11/29/AR2008112901025.html?hpid=topnews

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