Tuesday, November 19, 2013

Medical Regulation II

NOTE: These essays were reprinted from "Random Notes" as they are all cited in my upcoming essay "The Problem with 'Safe and Effective'".

My earlier essay on medical regulation was greeted with something of a mixed reception. Some agreed, some completely disagreed, and most agreed with parts and disagreed with others. However, rather than simply rehash the arguments I raised in that essay, I will send interested readers to my old post, and try a new approach. I admit that I don't expect to persuade many. We have become so used to coercive medical licensing, medical control of pharmaceuticals, and other coercive medical regulation that it is hard to think of a truly free system. However, that is not an argument against my case. Just as Europeans often have a hard time imagining a free medical system and argue without the government intervening only the rich would have medicine, or even as we (well, not me, but Americans in general) argue that without public education the poor would be illiterate1, many think without medical regulation, people would be dropping dead left and right.

First, let me disabuse people of one bit of propaganda, the idea that prior to the passage of the Pure Food and Drug Act hucksters were selling poisons and without regulation that would return. Well, it is true, there were a lot of people selling mercury purgatives, for example. The problem is, they were the established medical system. Granted, hucksters were selling things every bit as bad, though most patent medicines were less poisonous, just ineffective; but at that early stage in the science, medical professionals were every bit as dangerous as the hucksters. Which makes it pretty absurd to use the 19th century "snake oil salesmen" as an argument. The reason people tried snake oil was because the "professionals" tended to apply purgative which killed as often as cured. Which makes me think the 19th century is as much an argument AGAINST trusting the professional as for it.

Of course, medicine has come a long way, and I am the first to admit that. But that being the case, then is it not unfair to use the 19th century as an example of what would happen without regulation? If the doctors aren't going back to recommending mercury purgatives or even bleeding, why would the public suddenly become less educated 19th century rural populations buying snake oil? Yes, the public has had mistaken enthusiasms for remedies which do not work. Then again, the professionals have made mistakes as well2. If perfection is the standard, neither side should be running medicine3.

But that is not my argument, simply an aside. My real argument is much more simple. Though it does have some of its justification in that 19th century medicine. But even more in the treatment of ulcers. However, that is for later, let me start by explaining my position.

As I have written before the basic premise of any regulation is that the general public is ignorant or incompetent, and so a group of wiser, more knowing people have to make decisions for them. And in the case of medical regulation, this position is actually explicitly stated. The medical profession, and the government which grants them the power to use force to deny others the right to practice4, openly says "we know better than you what treatments you need and which to avoid, and so we will force you to use only good treatments."5  And thanks to the respect most people have for doctors, we accept this without thinking about it. We simply agree that they must know more than we do, and so we leave it up to them to control our every decision in the medical arena.

There are some exceptions, mostly thanks to powerful lobbyists. Thanks to a strong homeopathic movement in 1906, they were exempted from the regulations, and so people who believe in homeopathy retained a freedom of choice denied to others. Likewise, despite periodic threats to regulate, the vitamin industry has a powerful enough lobby and enough public support to stay outside the regulation of the their industry, allowing some more choice. And thanks to arguments for religious freedom, Christian Scientists have retained not only the right to refuse treatment but to see their own Christian Science practitioners. There are a few other exemptions (chiropractors, for example) where the medical profession lacks the ability to regulate, but by and large medical treatment is rather extensively regulated.6 Doubt it? Try to charge to put a bandaid on a cut.Voila! You just broke the law, unless you have an MD and a license, that is.7

However, despite the widespread acceptance of this position, there are two arguments against it. (Actually there are more, but as I don't want to repeat myself I am limiting it to two.) The first is a philosophical argument, and probably the weaker. I see it as a strong rebuttal, but many will respond "that's fine in theory" and simply ignore it. So I also offer a second, and longer, argument, the practical argument against regulation.

The first argument can be summarized thus, the government has no power that was not granted to it by its citizens.I have the right to defend myself, and defend my property, so I can deputize the state to act as a policeman, protecting me from force, fraud and theft. I can also agree to appoint an arbiter in disputes, so I and my fellow citizens can assign the state the power to act as the final arbiter in civil disputes. But I do not have the power to tell another citizen he must use the doctor of my choosing, or must ignore a practitioner he thinks best because he is not approved by mainstream medicine. So the government cannot be assigned that power. Or, in more general terms, I lack the power to interfere with another's right to contract, and just because it is a "medical" contract does not change that situation. So I have no right to interfere that I can assign tot he state. Thus, there is no logical origin from which the state could have obtained this power.

Even if you don't care about the social contract theory of government, and don't agree with me that the state cannot have rights that citizens do not, then let us look at it this way. We have the right to hold any beliefs. If my beliefs are of a medical nature, and disagree with conventional medicine, why should I not have the right to act on my beliefs? I know that mainstream medicine disagrees with me, I know that the treatment is unapproved, and yet I want to proceed. In what way is the state helping me by preventing me from following my wishes? 

Of course, the counter argument is that, by denying me access to a "quack", the state will force me to use effective traditional medicine. Which is an absurd argument coming from those who decry the "nanny state". Isn't that the same argument that prohibits transfats, mandates labeling on restaurant menus, and all the other intrusions the conservative movement find so objectionable? So why, in this one case is it a sacred cow, even among conservatives? If it is not the function of the state to tell us what to eat, how to live, when to exercise and so on, why is it the purpose of the state to tell us which medical treatment to receive? What happened to the conservative dedication to freedom and personal choice?

As I said, I am sure many will dismiss that as "theory" and argue that the regulation we have "works", so why change it. However, even on a pragmatic level, I can argue that creating a single regulatory agency, representing a single range of opinions, we have created the potential for failure. Not a certainty, but definitely a potential single point of breakage in the system.

Do not get me wrong. Our present approach to medicine is clearly a good one, and we have made terrific strides. I believe our present model is correct and I would not think of using any of the alternate treatments I mention. However, I also recognize doctors are humans and thus capable of mistakes. However, our system assumes that, gathered in a group, they simply will not be wrong. Once you say a single group has exclusive control over who will and won't practice, what will and won't be acceptable medicine, you have created a situation where human fallibility can cause the system to reject valid choices in favor of mistakes. Yes, the theory is that eventually argument will convince the group of the truth, but that is not always correct. Just as democracy does not guarantee a correct decision or optimal government, the "scientific method" can still allow error to persist for a long time. 

And there is evidence that orthodox opinions, facts that "everyone knows" have in the recent past kept valid treatments from being accepted. Not only that, but doctors who ignored conventional wisdom and acted on correct, but unaccepted, theories were fined and otherwise suffered because they failed to listen to incorrect orthodox views. (I am not saying this is common, or even happens often, but if you are the one who is not treated because of this problem, it does you little good to know that eventually the correct view will win... maybe.)

Not many people have heard of H. Pylori8, at least not many without an ulcer. However, H. Pylori is an important discovery. It is a bacterium which lives in the stomach and is responsible for some cases of ulceration of the stomach lining. There were a number of early efforts in this direction throughout the 20th century, doctors who discovered that antibiotics caused a reduction of pain in certain cases of ulceration, and  a few who even proposed a bacterial mechanism. However, the orthodox belief was that bacteria could not live int he stomach, and so such doctors were dismissed, one was even fined in 1968 for prescribing antibiotics to treat ulcers (granted, that was in Greece, but the mechanism is the same regardless of country, and it could have happened just as easily here, though the process may have differed in details).

This story, though, is a happy one. After some persistence on the part of a few researchers, they managed to prove tot he emdical community that there really were stomach bacteria, and that those bacteria, H. Pylori, did cause certain types of ulcers. And so we did finally get the medical community to recognize the truth.

On the other hand, what would have happened if the orthodox opinion had held a bit more sway and cut off research funds for the studies which proved the existence of H. Pylori? Before you laugh, it is far more common for very unorthodox studies to have trouble finding money than more orthodox research. And since medicine is controlled by the boards, you cannot treat based on any theory which is not accepted, nor can you conduct in vivo studies without the approval of the powers that be. So, though this story ends happily, it is just as likely that the H. Pylori could have remained undiscovered and science would still be denying there were bacteria in the stomach and prosecuting those who treated ulcers with antibiotics, no matter whether it worked or not.

Now that is but one case, and as I said, the medical community is, in general, pretty good at accepting new ideas. However, they are also human, and can make mistakes. They can even collectively make mistakes, as the example above proves. So by giving this single group total control, we allow those mistakes to have the force of law, silencing those outside of the group who would change their perspective. Just as my argument for federalism includes the idea that the federal government presents a single point of failure, so does the medical establishment, diverse as it is. They may hold a range of opinions, but it is a constrained range, colored by all sharing the same education, reading the same journals, attending the same lectures, and generally forming a rather insular group. As with any closed community, it is possible, no matter the safeguards, for a bad idea to gain general acceptance and remain unchallenged.
So, what is the alternative?

That is simple, medical associations can continue to license, it just won't have the force of law. Instead, consumers will choose doctors as they choose any professional assistance, they will check credentials, read customer reviews, check certifying organizations, and talk to the man himself. Yes, customers may not know a lot about medicine, but people going to an auto mechanic know little about cars, and yet they make informed decisions. That is why we have private certifying bodies. However, in cases outside medicine, we do not give them the force of law. And the same could be true in medicine.

Yes, in the end, certain certifying bodies would probably exercise de facto control, as hospitals would only recognize doctors certified by select groups, insurance would only pay for doctors with certain certification, and in general the public would only visit doctors with certain certifications. But, by removing the force of law, we do not choke of all choice for those who would do otherwise. Whether it is a believer in Hoxley cures, or someone who wants to save money by letting an ex-paramedic set his broken leg, it would leave options open for those who did not value certification. And should a doctor decide he disagrees with the orthodoxy, and should he be unable to obtain a hearing, he can simply strike out on his own, without the imprimatur of the certifying body. Customers can then decide whether he or the certifying body know best.

That sort of solution seems more consistent with a free people than the insistence that the "wrong" answers be forbidden by law.


1. How this would differ from today's illiteracy is never explained.

2. Just look at the ever changing science on salt and blood pressure, or recommendations on what diet is optimal for weight loss. Or check out my article on the unexpected consequences of the sun block campaigns around the world.

3. Yes, it is unfair to fault medicine for its errors in the 19th century, but in the same way it is unfair to demand regulation due to the 19th century failure to prosecute medical fraud. Or perhaps for the remedies which were ineffective, but no more so than the treatments offered by established medicine. If we must ignore established medicine's use of purgatives and bleeding, why continue to regulate based on herbal tonics or tractor rods (don't ask) of the same era?

4. Yes, the medical authorities have the power of deadly force. If you practice without a license, you are tried, if you fail to pay a fine, or are sentenced to jail, you go to jail. If you try to leave jail, you are shot. Thus the medical licensing authorities have the power fo life and death, even if it is not immediately obvious. (Thanks to P.J. O'Rourke for the quote I rephrased.)

5. This was not always the case. In times when regulation was seen as intrusive, professional medical associations lobbying for state licensing rules tended to couch it in terms of preventing fraud. It was untrue, the purpose was, as always, to regulate the profession, but they could not say so in times when Americans were more diligent in protecting their freedoms. (And I won't even mention the fact that many, especially in the early movements, saw it not as a safety measure, but as a way to shut out more popular "natural" healers who used treatments other than harsh purgatives, thus ensuring a better income for themselves.)

6. I do not mean to suggest I place credence in homeopathy, vitamins and herbs, Christian Science or chiropractors. However, I do believe that people should have the right to seek the treatment they believe is effective even if medical science thinks otherwise. It is not the purpose of the government to dictate correct thought. As the first amendment exists to protect unpopular speech, the whole constitution seems designed to protect unpopular, even wrong, ideas. Provided your actions violate no one else's rights, I don't see how the state can have the power to tell you not to act on your own beliefs.

7. It is unlikely such a practice would be prosecuted, but it could. Providing basic first aid for a fee is considered practicing medicine without a license, so even something as simple as selling bandaid service could be an illegal act. More on this later, as it is an example I often revisit.

8. Yes, a Nobel prize was awarded in 2005 for study int is area, but I am convinced most people do not follow the Nobel prizes, especially in medicine and science, that closely. I still stand by my opening sentence. Ask a room of 10 or even 20 people what "H. Pylori" is, and I doubt one will answer, and if he does, he probably has or had an ulcer.


For a good description of the history of patent medicines read "The Toadstool Millionaires", available on line. Granted, the author believes in regulation, so we don't see eye to eye, but he is honest enough that he does present all the shortcomings of orthodox medicine of the times. I am somewhat shocked that he fails to see that, had we passed the Pure Food and Drug Act in 1806, rather than 1906, we would have been stuck with purgatives as the only allowable remedy, or maybe even bleeding as the only acceptable remedy, and medicine would likely have never evolved into its present form. After all radical progress, the sort which breaks with past paradigms, almost always requires bucking the orthodoxy of the times, which government regulation makes impossible, or at least illegal. (Yes, it still happens, but much, much less often.) (NOTE: The link provided on that page for the preface is wrong. The preface can be found here. Otherwise the links are correct. The sequel, "The Medical Messiahs" is an interesting take on bizarre theories on the fringes of medicine throughout the 20th century. It does not change my mind on the need for regulation, but it is an entertaining read.)


I think one big problem is that people forget medicine is a commodity. Just as some people think of farming as something more than a job (an idiocy striking no less an august individual than Jefferson himself), they often forget medical treatment is still a commodity, and doctors are employees of their patients, directly or indirectly via a hospital. Until we recognize that we will continue to implement wrong-headed approaches to medicine (such as our anti-competitive "universal insurance" schemes).

UPDATE: For once, I really can blame all my typos on my health. My hands have been rather twitchy today, which is why this is probably all I will post today. I have gone back and tried to correct the most obvious errors. However, if there are more that I missed, I do apologize. When I am a bit less sore I will come back and try to clean this up, but for now writing this much has taken quite a bit out of me, out of my hands, anyway.


To explain my comment in the first postscript, the reason I say medicine might have stagnated and never become modern medicine had the Pure Food and Drug Act been passed a century earlier (and presumably accompanying state licensing been enacted), is because at that time, many of the ideas that underlie modern medicine were not accepted, and would not be accepted for some time. For example, Semmelweis's germ theory had not yet been formulated, and would remain controversial, or ignored, by European and American medical practitioners for quite some time after it was. So it is conceivable had medicine been frozen by law in the 19th century that we would never have developed a proper germ theory of disease, or at the very least that such a theory would have faced more resistance and taken much longer to find acceptance among doctors.

Which is just one more example of how a single choke point, given the force of law, can freeze progress to one degree or another.


For an idea of the political environment in which all this regulation first arose, I want to suggest my earlier post "
A Passing Thought". It is not precisely on point, but does talk about the birth of large scale regulation, and big government, at the turn of the 20th century.

Originally Posted in Random Notes on 2009/02/02.

No comments:

Post a Comment