The Associated Press reports that a New Hampshire court has ordered the state Board of Medical Examiners to halt disciplinary review of a doctor who made offensive, racist, and insulting remarks to patients. It doesn’t seem to have been a First Amendment issue; instead, the judge declared that:

“It is nonetheless important … to ensure that physicians and patients are free to discuss matters relating to health without fear of government reprisal, even if such discussions may sometimes be harsh, rude or offensive to the listener,”

I’m not impressed.

The reference to “government reprisal” is particularly odd; the purpose of state licensing boards is to exert oversight of professional practices (and to conduct “reprisals”, if you want to put it that way, against those who violate standards). It’s obvious why this is a good idea. The judge seems to be suggesting that the board can’t do its job in respect of one particular aspect of physician behavior (conversations with patients) because that would influence the way those conversations are carried out – but that’s the whole point of the oversight process: to have a tangible effect on the behavior being supervised.

If the objection is that this will have a chilling effect on the candor that is necessary to physician/patient interactions, that seems to be a practical, rather than a legal, concern – it is an implicit claim that the board is so incompetently heavy-handed or intrusive that it would muck up the process it is trying to improve. That may or may not be true, but to this non-lawyer’s eye it’s not clear why that is grounds for judicial interference. Surely there are other remedies for the board’s ineptness, and it is especially surprising that a doctor who is subject to disciplinary proceedings can claim a freebie, and escape discipline entirely, simply because the disciplinary matter in question has to do with his communication with patients.

Unless there is some hidden legal issue I’m missing, the judge seems to think that doctors have a sort of quasi-First-Amendment right to speak to patients any way they choose, as a matter of professional independence or something. But it is precisely matters of professional judgment and practice that professional boards are supposed to police. Doctors do have leeway in their practice procedures, but not total leeway – they are answerable to a board of fellow professionals who know what reasonable professional practice is. That point also, it seems to me, answers the judge’s constitutional concern:

Fitzgerald also ruled that state and American Medical Association requirements to treat patients with “compassion and respect for human dignity and rights” are so vague they are unconstitutional. Bennett probably would have won his challenges before the board, the judge said.

There’s certainly an element of judgment call residing in there, it’s true, and that can be worrisome. But I think those are actually reasonably firm standards. “Respect for human rights” is an objective issue: as long as you know what those rights are – and there is very broad agreement in medical ethics on patients’ substantive rights, in most areas at least – it shouldn’t be hard to decide if a doctor has violated them. One would hope the same could be said for “human dignity”, although that concept, as used, usually tends to be a euphemism for the speaker’s religious prejudices. If that term actually meant anything, it should be applicable in practical effect. As for “compassion”, that is difficult to assess on a behavioral basis, but it’s also precisely the sort of thing medical schools try to teach, and professional boards ought to be able to judge. Certainly physician/patient relationships and communications practices are a part of professional behavior – a point that has only gained wider acceptance over the years. So is professional demeanor. I can’t imagine why they would be treated as immune to oversight.

And what, exactly, did the doctor say, that the judge regards as a professionally sacrosanct “free discussion of matters related to health”? What was it that the board’s vague professional standards could never have adjudicated fairly?

“Let’s face it, if your husband were to die tomorrow, who would want you?” the board has said Bennett told [an] overweight patient in June 2004. “Well, men might want you, but not the types you want to want you. Might even be a black guy,” it quoted him as saying, based on the woman’s complaint.

Bennett, 68, has denied making the comment, but has said he’s seen polls supporting that position.

“If you look at the polling, nobody likes fat women,” he said last year. “Is it right? No. Is it sensible? No. Is it true? Yeah … Black guys are the only group that don’t mind that. Is that racist to say that?”

Um, yeah . . . but let’s move on:

A 2001 complaint accused Bennett of telling a woman recovering from brain surgery to buy a pistol and shoot herself to end her suffering. The doctor was also accused of speaking harshly to a woman about how her son might have contracted hepatitis, according to the ruling.

Yeah – I can’t see how any board of sincere and competent professionals could come to a fair ruling that those remarks were not “compassionate” or in keeping with “dignity”. It’s just so . . . vague. Obviously, you’d have to dismiss a case against a doctor who behaved that way – I mean, who could object? And who doesn’t sympathize with this compassionate, dignified, ethical and professional physician’s intention to “sue everyone involved” for cramping his unique and effective patient communications style?