New law seeks to ‘gag’ doctors contradicting consensus on covid-19

This week, California Governor Gavin Newsom signed Assembly Bill 2098 into law, which allows the state’s medical board to punish doctors for disseminating “misinformation” or “disinformation” regarding covid-19.

The new law states that doctors should not contradict “scientific consensus” on covid-19, or they could be charged with “unprofessional conduct,” and possibly have their medical license suspended or revoked.

Criticism of the law has been swift and fierce. Doctors object to being told they need to “stick to the script”, saying it violates their right to speak freely and openly with their patients. 

Jay Bhattacharya, professor at Stanford School of Medicine says the new law will have a “chilling” effect on free speech.  He tweeted, “The attempt to regulate medical speech violates civil liberties, harms science, and will ultimately harm patients. California doctors now serve public health more than patients.”

Aaron Kheriaty, a fellow at the Ethics and Public Policy Centre said, “It's a way to force scientific consensus where none exists by threatening physicians who challenge the government's preferred COVID policies, threatening them with the most severe form of professional punishment that a doctor could receive, which is discipline against the doctor's medical license.”

What is misinformation?

The California law states; 

“Misinformation” means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.

Laura Powell, a civil rights attorney, and founder of Californians for Good Governance said, “No clear scientific consensus exists with respect to this novel virus, and even if it did, it may be proven incorrect later.”

“Without clear guidance regarding what would constitute “misinformation,” physicians can only guess if they risk losing their licenses for expressing their good-faith disagreements with positions of public health officials,” added Powell.

The law also states that “physicians have a duty to provide their patients with accurate, science-based information,” and cites the US Centres of Disease Control (CDC) as one such reliable source. 

But as Tracey Beth Høeg, a California-based physician and public health expert, points out, “Ironically, the new law already contains misinformation. It says that unvaccinated individuals are at 11 times greater risk of dying from covid than fully vaccinated individuals, but this contradicts the CDC website, which says its only 5 times the risk.”

The CDC website also states that “masks are recommended in indoor public transportation settings,” and that “children aged 2 years and older can wear masks or respirators to protect themselves and others from covid-19”. 

But wearing masks during the pandemic has been a hotly contested issue with wildly different interpretations of the evidence. 

“There’s certainly no clear scientific evidence for the use of cloth masks in community settings. If anything, the consensus of the research literature would suggest that masks outside of strictly controlled settings are not useful for respiratory viruses,” said Kheriaty.

Dr Eric Widera, professor of Medicine, University of California San Francisco agreed, “When I tell my patient that cloth masks don’t work, who decides if that is misinformation or [the] current state of the science?”

Kheriaty says trying to codify a particular scientific consensus into law makes no sense and is “totally incompatible” with science.

“Anyone who attempts to do that does not really understand how science advances. It’s not through consensus, but through conjecture, and refutation, and debate and argumentation,” said Kheriaty.

An ethical breach

As an expert in ethics and public policy, Kheriaty says he struggles to think of a bill that would more radically undermine the trust between a patient and a doctor.

“Patients who ask their physician a question about COVID, want to hear what their physician actually thinks, not some predetermined script prepared by public health bureaucrats,” said Kheriaty, “A physician with a gag order, is clearly not a physician that you can trust.”

He said the politicisation of covid-19 presents some serious ethical dilemmas. “The medical board [assessing the cases] is ultimately appointed by the state governor so, it's not very difficult for the governor or the executive to use the medical board as a long arm of enforcement for those preferred policies,” said Kheriaty.

“They can strong arm physicians to fall into line with their policies – policies which may have been influenced by financial inducements by pharmaceutical corporations. Politicians are now making our health recommendations, not the physicians,” he added.

A recent analysis of lobbying and campaign contribution data from OpenSecrets showed that the pharmaceutical industry spent at least US$142.6 million on lobbying Congress and federal agencies in the first half of 2022, more than any other industry.

Kheriaty said, “Senator Richard Pan, who introduced and co-wrote this legislation has been in the back pocket of Big Pharma for his entire political career, as evidenced by his campaign contributions.”

Senator Pan’s office was contacted for comment but did not respond by the deadline.

Australia set to follow California’s footsteps

Amendments to a bill (Health Practitioner Regulation National Law Act 2009) have been put before the Queensland Parliament, due to be debated and voted into law on 11 Oct 2022.

The proposed amendments, which appear to have broader implications beyond advice about covid-19, has angered medical groups like the Australian Medical Network (AMN), representing over 10,000 health professionals and private citizens.

In a media release, the AMN stated:

Doctors will no longer be able to express their opinion or use their experience, training, and education, if their opinion goes against what the health bureaucrats say is in the interests of “public confidence in safety”. Doctors will be bound to follow government policy, which means that government health bureaucrats will determine how doctors should approach treatment recommendations for their patients.

If passed in Queensland, it will also apply to all the other States and Territories, (except for Western Australia and South Australia) because the health professions are regulated through a co-operative national scheme.

Writing under a pseudonym for fear of reprisal, *Dr Frank Mercy* who is currently employed at an Australian university said, “Healthcare is nuanced, almost every day I ‘violate’ textbook recommendations because patients do not conform to idealised representations, each has unique features. Those deviations come down to experience, which is the patient’s and doctor’s most powerful asset."

Tony Nikolic, civil rights lawyer at AFL solicitors, says it’s critical that doctors have the capacity to question, and challenge matters relating to public health.

“Doctors go through rigorous education and training and should be allowed to voice their medical and professional opinions freely. Disciplining doctors who use their skill, care and diligence to inform patients about matters relating to safety and efficacy is open to abuse and capture,” said Nikolic.

“The doctor-patient relationship is sacred. It should remain confidential and independent of bureaucratic or political interference,” he added.

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