We must restrain our penchant for bans and mandates in health care

Legislative bodies are moving with unprecedented swiftness to ensure we lead healthier lives. From bans on soda to bans on fast food, from mandates on health insurance coverage to mandates on EMR use, from bans on trans fats to mandates on care delivery models, our governments (federal, state, and local) are supposedly helping us live well. But our current approach to health care is about as scientific as our approach to fashion — skinny jeans, bans, and mandates are in; bell-bottoms, freedom, and individual responsibility are out. Intrusive legislation and false moral imperatives abound despite being little more than blind stabs at improving health, one dim-witted buffoon at a time. But is that what Americans are? Are we all helpless buffoons?

The issue of freedom is a critical one in health care. After all, no individual liberty is more worthy of protection than the right to sovereignty over one’s own mind and body. When we ban something, then, it would be reasonable to assume that the evidence in favor of doing so is clear and irrefutable, that it is immutable. It would also seem logical that anything banned must, by definition, be more detrimental to human health than other things which are not banned. The same is true whenever we, in effect, mandate widespread adoption of a specific health care delivery model, digital technology, or administrative policy. The evidence supporting those mandates should be equally robust, and what is mandated should be decidedly better and more effective than all available alternatives.

The problem is that, in practice, bans and mandates are never applied in this well-reasoned, equitable fashion, and sustained good health will therefore never result from these authoritarian tactics. They generally do little more than limit choice, restrict individual freedom, and codify systemic injustices and inefficiencies that obstruct patient care and prove virtually impossible to reverse. Admittedly, there are indeed rare instances where implementing a ban or mandate is justified. But, too often, they are ineffective, costly, burdensome, and arbitrarily applied.

Mandates that favor particular care delivery models such as PCMHs, for example, are ill advised. A delivery model’s value lies solely in its proven utility to a specific group of patients and physicians. And in any given community, for any given disease, it is the freedom to innovate and creatively address patients’ unique needs that yields improved care and true health gains, gains that develop organically rather than in conference rooms full of bureaucrats far removed from the clinical processes they seek to control.

Another problem is that, in most cases, banning or mandating something is terribly ineffective at changing health behaviors or improving outcomes. Why? Because bans and mandates do nothing to increase someone’s knowledge of how best to sustain or improve health. If you ban one “unhealthy” substance, the food industry will simply develop another that increases flavor, extends shelf life, improves margins, or possesses chemical properties that induce addiction. Ban that new substance and another will arise. Without a primary focus on education, the public will consume each new substance voraciously because bans do nothing to promote real knowledge or a lasting culture of informed choice.

Yet another concern, one that highlights the prominent role of special interests in what should be an impartial process, is the arbitrary nature of what we choose to ban or mandate. For example, if improved health is the goal, should we ban or otherwise legislatively curtail cigarette smoking while simultaneously allowing recreational marijuana use? Should we ban trans fats while encouraging the widespread use of pharmaceutical drugs that have considerably more toxic effects on the human body? Does it make sense to ban large sodas at fast food restaurants while allowing the sale of jumbo-sized alcoholic beverages, ultra-caffeinated, sugar-packed soft drinks, and unregulated nutritional supplements at local convenience stores?

Similarly, is it wise or just to mandate health insurance coverage without restricting insurance industry profits or outlawing narrow networks? Why do we ban tests that allow individuals to better understand their own genetic composition while simultaneously encouraging mass use of mammography and colonoscopy, even though the data is clear that these tests also carry significant risks and provide no benefit for the majority of those screened? If patient safety, portability of health information, and enhanced inter-provider communication were major goals of the EMR mandate, why spend billions of dollars on software that can’t yet communicate across proprietary platforms?

The only way to truly improve our nation’s health is to unequivocally embrace two concepts: education and freedom. The problem, of course, is that both of these require patience and discipline. Letting education and freedom transform health behavior and care delivery, watching them work their irrefutably effective magic, is no more exciting than observing evolution in real time. But they have an unparalleled ability to improve outcomes while protecting the public’s right to self-determination. Over time, education inevitably impels most individuals to make better health decisions. Some, however, will continue to consume unhealthy foods, forego screening tests, and engage in unhealthy activities. But, as politically incorrect as it may be to say this, it is their right to do so in a free society.

One argument often used to justify bans and mandates, one consistently touted as incontrovertible, is that they prevent those that engage in unhealthy activities from unfairly burdening others with the health care costs they incur. But there is one fatal flaw in that argument. Namely, it is based on the false moral imperative that every citizen is responsible for every other citizen’s health care, that charity and compassion can be effectively legislated. These two highly desirable human qualities are critical to individual self-actualization and societal progress. But attempting to impose them through legislation often has precisely the opposite effect, transferring individual wealth not to fellow citizens in need but to insurance companies, health system administrators, and government bureaucracies.

Laws like EMTALA and PPACA do little to improve real health; they are successful only at redistributing resources in the most inefficient ways possible, providing only the illusion of security and choice. They also treat health care differently than the socioeconomic phenomena truly responsible for health status, things that include food, shelter, employment, and wages. We do not, for instance, guarantee employment, ensure a living wage, subsidize luxury housing, or provide lavish unemployment benefits, nor are food stamps redeemable at the best restaurants. And yet we expect anyone arriving at the ED to receive not only triage and basic care but also expensive imaging studies and procedures, the best available services from multiple specialists, for what are often chronic health problems. Why the lack of consistency and foresight? Why the legislative hypocrisy?

We need to focus on peeling back the layers of legislation and administration, on restraining our penchant for bans and mandates. We must allow physicians to embrace the care delivery models and technologies that best serve their particular patients, not those deemed best by bureaucrats. We need to compensate clinicians for the full scope of their professional services, services that include consistently communicating with and educating patients using all available modalities, not just for writing prescriptions, ordering diagnostic tests, performing procedures, and structuring care to comply with anunnecessarily complex and meaningless collection of codes.

Rather than limiting choice with authoritarian decrees, legislative efforts should focus on health promotion and education, on ensuring price transparency in health care, on demanding clear, accurate ingredient labeling from the food industry, on safeguarding the integrity of the research used by the biopharmaceutical industry to make health claims, on assuring unambiguous, easily accessible disclosures from insurance companies regarding scope of coverage. We also need to grant patients control over how their health care dollars are spent, not continue to transfer that authority to third-party payors or government officials.

In 1755 Benjamin Franklin famously said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” And the wisdom imparted therein is every bit as applicable in the realm of health care as it is in our fight against terrorism.

We want to improve health, so we mandate health insurance. We want to prevent disease, so we ban large sodas and trans fats. We want to control health care costs, so we favor one care delivery model above all others. All we accomplish, though, is less access to physicians (due to narrowing networks and greater administrative burden), increased health care expenditures (by increasing uncompensated ED visits and diverting scarce resources toward unproven delivery models), and diminished patient autonomy (with control increasingly transferred to insurance industry and government bureaucrats). We are relinquishing freedoms at an alarming rate and receiving virtually nothing in return.

These affronts to individual liberty, their inability to achieve tangible health gains, merit one final, equally applicable quote, one attributed to Patrick Henry: “Give me liberty, or give me death!” Sadly, if we continue on our current path, we may indeed be forced to choose between the two because, despite all claims to the contrary, the path to wellness does not reside in any legislative document, nor does compassion originate in the halls of Congress. In most cases, the potential for improved health resides exclusively in the minds of well-informed, free individuals, and true compassion can only be born of those same individuals’ hearts. Let’s educate, not mandate, and let’s allow freedom to guide our way, no matter how inconvenient that process may be to those occupying the halls of power.

Luis Collar is a physician who blogs at Sapphire Equinox. He is the author of A Quiet Death.

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  • John C. Key MD

    Probably many of those supporting bans, mandates, and other regulations at the same time would say that physician-assisted suicide and abortion-on-demand are essential to maintaining the “Freedom” that we have to do as we choose with our own bodies.

    Freedom is an essential gift, and those who wish to do so should be able to drink a big Coke, eat lots of gluten, and even smoke if they want without the nanny state dictating those personal actions.

    As Doctor Collar states so correctly in his final sentence, EDUCATION (and its offspring, experience) should combine with individual liberties to let the informed citizen do as he or she chooses.

    • Luis Collar, M.D.

      Agreed. Nothing wrong with guidance, guidelines, etc… when they are just that. But the overuse of bans and mandates in healthcare is really not justified, particularly when they are applied inconsistently and in ways that often only serve to appease special interests.

  • Luis Collar, M.D.

    Thanks for the insight. I agree and feel that third-party payors are responsible for a significant portion of our problems to begin with. Mandating their use, without any modification to the current model, will lead to even greater problems down the road.

  • Luis Collar, M.D.

    Thank you for taking the time to comment. Bans and mandates must be used in a much more disciplined way. Most legislative efforts should be primarily aimed at empowering and educating the public, and then allowing free individuals to decide what is best for themselves.

  • southerndoc1

    Not accurate.

    Only 4 of the 19 hospitals have contracts with 100% of the exchange insurers in their state. Narrow networks are becoming more common across the entire range of health insurance.

  • Luis Collar, M.D.

    Thanks… Truly appreciate the kind words……

  • Deceased MD

    Dr. Collar, this blog is one of your finest.

    “Similarly, is it wise or just to mandate health insurance coverage without restricting insurance industry profits or outlawing narrow networks?”

    This comment says it all. Clearly Obama is unable to challenge the powers that be. And frankly that seems to be the way politics work. Not addressing the elephant in the living room (as you nicely point out) but completely ignoring it and trying to go around it.

    It seems that Obama and his staff are unable to challenge all the medical lobbyists. He can’t force big Pharma to stop charging inane amounts for drugs to medicare, so the only thing left maybe is to mandate the average joe public and the MD’s are mandated since we don’t have any lobbyists. Neither does the public. Simply said, he seems incapable of challenging the medical industry establishment. He can’t tell them what to do as they have way too many lobbyists so the only thing he feels left to do is boss around the public and mandate useless EHR software which further boosts the HC economy.

    Meanwhile, given the fact that what is offered for Obamacare has such low value in many ways (restricted networks, high cost–all the things you outlined) and the fact that many Americans cannot afford it (or barely afford it) perhaps might indicate that the HC problems have really not been addressed.
    I agree with your assessment that education is key and freedom. But the pessimist in me wonders given this country seems run by a lot of sneaky manipulation and power mongers. Seems like logic gets abandoned and manipulated. I suppose if everyone was bright and informed it could only help. Because there is a huge discrepancy between the powerful groups and the general public. A very sad state of affairs. I am sorry to have written such a long note but I did not have time to write a shorter one!
    There is a job i hear for a new surgeon general. LOL. But seriously, You have very sound thinking and policy ideas.

    • Luis Collar, M.D.

      Great points… And thank you for your feedback on the piece… I truly appreciate it.

  • Deceased MD

    I am afraid it is far worse than imagined regarding the public’s paranoia if you will about medicine. Not sure they would believe in education since their beliefs seem so fixed and illogical. Did you read the JAMA article indicating that there are a huge number of people with medical conspiracy theories?

    “Half of Americans subscribe to medical conspiracy theories, with more than one-third of people thinking that the Food and Drug Administration is deliberately keeping natural cures for cancer off the market because of pressure from drug companies, a survey finds. And another 20 percent think doctors and the government want to vaccinate children despite knowing that vaccines cause autism.”

    • Luis Collar, M.D.

      Education, from multiple sources, can still help. Most importantly, though, it comes down to what we believe the proper role of government (local, state, and federal) is. In other words, if education doesn’t change health behaviors fast enough, or at all in some cases, are we okay with being told what we can and can’t do?

      For example, should doctors be forced to embrace PCMHs (forced insofar as reimbursement is, and may increasingly be, tied to practice models supported by government), or should all models that produce the desired results for patients be supported to stimulate creativity, competition, etc… If people are educated as to the benefits of avoiding trans fats, and many still choose to consume them, should we “ban” them for the greater good? Even while other substances that are equally, or even more, detrimental to health are still actively marketed and sold? I also made the case in the article regarding the inconsistency and ineffectiveness of the philosophy behind the ACA, one that ignores the true determinants of health and places significant cost and burden further downstream in the process (e.g. emergency rooms), while simultaneously mandating the flow of individual wealth to private, for-profit insurance companies.

      I don’t have the answers, but I do feel that a lot of it is based on special interests and not simply serving “the public good.” Unless the process that yields a ban or mandate is impartial, and banning or mandating something is clearly better than all available alternatives and consistent with the philosophy and approach to other socioeconomic problems in our society, I don’t think it is wise to continually sacrifice “small” liberties without asking tough questions or receiving anything (e.g. true health gains) in return.

      • Deceased MD

        Well I would agree with you and i think you would have the public’s ear with just the piece about the mandates that many people are offended by. i think the fundamental problem is there is such a lack of trust by the public regarding their medical care, creating many to have these paranoid theories about medicine that are not based on fact. No amount of medical education I think would help this group, but working on how to trust (which is no small feat) given there is little to trust from the vantage point of many.

        As you nicely put it, these small sacrifices with no true gain. I genuinely wish you were politically connected (maybe you are) I hope so! Because your ideas are very authentic and fit the way many people feel particularly in the public.

        • Luis Collar, M.D.

          Again, great points… I agree with your assertion regarding the lack of trust, an unfortunate reality that I believe is the result of several different phenomena. I’m working on another piece that addresses that issue as well.

          As for being politically connected, I wish I could say that my influence is profound and my words make Congress shiver (lol)… Unfortunately, that would be a great big lie… I do hope to have a larger impact in that arena in the future or, at a minimum, raise awareness of the issues I believe will become increasingly critical to both our nation’s health and our profession’s ability to remain relevant in the next few decades.

          Thanks again, DeceasedMD.

          • Deceased MD

            you have my vote! LOL. Thank you for your kind words. I will be anxious to read your next piece as I think that is key and you are very well spoken.
            I wrote up something on pt’s lack of trust myself since it was really eye opening to make some recent discoveries about public perception, hope it gets published here as well as this I think it is a central topic that desperately needs getting addressed. I will be very interested on your take as your articles are so very thoughtful and sound. How long BTW does it generally take for Kevin to get back with you?

          • Luis Collar, M.D.

            Depends on how it gets to him… If you submit an article to the site email, usually maybe three to five days (just an estimate because it probably varies on how many he gets, etc…). If you submit regularly and have a blog, then he usually scans your blog regularly on his own, and you don’t always know the time frame since he will pick which ones to publish and when… I do know he usually lets you know either way (e.g. if he has suggested changes in length of the piece, etc…), and seems to be very timely in letting authors know…. Looking forward to reading it… (incidentally, my email is: lcollar@sapphireequinox.com)

          • Deceased MD

            Thank you so much Luis. Really appreciate the feedback and your email. I also look forward to your next article. And I really wish there were more opportunities for thinkers/medical policy makers like yourself to make change. But if nothing else I am always relieved to read your sound thoughts.

  • querywoman

    Ha! Ha! I never thought about the paradox of legalizing marijuana smoking while restricting tobacco smoking more and more.
    Yes, Texas used a lot of the tobacco settlement to fund children’s health care. I feel confident they did not use much of it provide social services to adults dying of smoking related illnesses. I feel confident that the public hospitals in Texas still want a low income adult smoker’s last few bucks as a copayment.
    I do think that cigarette smoking collectively causes more harm than alcohol.
    I was raised by a heavy smoking mother, and Texas has not shared any of the tobacco settlement money with me.