Saving Medicine from the Health Bureaucracy

by Michael Keane and Kara Thomas

We genuinely urge doctors involved with medical regulation not to go down with the sinking ship of authoritarian censorship and suppression of intellectual freedom. Not only is this behaviour historically illiterate and intellectually feeble, but it is putting the safety of patients at risk, causing hazards to public health, runs counter to our community standards of a liberal democracy, and sits in conflict with the societal benefits of intellectual freedom that have recently been stated by the High Court of Australia.

When has there been a society that prospers because people are cancelled, removed, or ‘disappeared’ from their vital work because they dared to disagree with the ‘regime’s unquestionable truth’? Do our modern medical authoritarians want to be looked back on with the same pathetic disdain with which we judge similar historical despots?

In this article, we present two rays of hope in the context that the tide is changing. Firstly, for those doctors who genuinely want to have an open expression of ideas, there is a High Court precedent about the benefits to society of intellectual freedom where professional views asserted in the context of intellectual freedom can be expressed forcefully even if they cause offence, embarrassment, or lack of trust.

Secondly, for those doctors who continue to persecute other doctors for participating in the act of intellectual freedom, accumulated medical, ethical and legal information — we believe this warrants consideration that those doctors involved with AHPRA and the Medical Board of Australia themselves have their licenses suspended as they potentially pose a danger to the public’s health, in our opinion.

Go forth and be confident in the concept of intellectual freedom

Recent controversy has surrounded the sanctioning, by regulatory authorities, of doctors for publicly expressing views on elements of the Covid pandemic. Doctors have been punished because they sought to bring critical (if not ideologically uncomfortable) medical information to the public’s awareness.

This controversy is fundamentally about the limits of intellectual freedom doctors have within the constraints of general, and often highly subjective, Codes of Conduct that doctors must adhere to. In this context, a recent unanimous High Court of Australia judgment gives an important window into how the Court considers what the boundaries of intellectual freedom are and how the Court considers attempts by authorities to curtail such freedom under the guise of ‘conduct’. (Find the example in detail at the end of the article.)

Although the case of Ridd v James Cook University (JCU) involved specific clauses within an Enterprise Bargaining Agreement, the High Court included valuable commentary on the societal importance of intellectual freedom from an instrumental, ethical, and historical perspective. This provides a useful context for academic freedom in general. Inherent in the developed concept of intellectual freedom is the ability to dissent against the establishment narrative. It is one of the modern marvels of living in a liberal democracy and brings tremendous benefit to society, as affirmed by the High Court:

‘Once developed, justification for intellectual freedom is instrumental. The instrumental justification is the search for truth in the contested marketplace of ideas, the social importance of which Frankfurter J spoke powerfully about.’

The Court further affirmed that:

‘Another justification is ethical rather than instrumental. Intellectual freedom plays “an important ethical role, not just in the lives of the few people it protects, but in the life of the community more generally” to ensure the primacy of individual conviction: “not to profess what one believes to be false” and “a duty to speak out for what one believes to be true”.’

Although doctors do not have a specific clause guaranteeing them the right to intellectual freedom, the High Court’s discussion of the societal benefits makes it difficult to argue that doctors should be punished for participation in the act of intellectual freedom.

There have been suggestions that the sanctioning of doctors has not necessarily been for the content of their views but how they have expressed them; invoking concepts such as incivility, rudeness, bullying, and harassment.

The Court explicitly addressed this issue in Ridd v JCU and was forthright in the view that intellectual freedom is not always pretty and wrapped in civility; curtailment on these grounds necessarily involves an assault on the fundamental phenomenon of intellectual freedom itself:

‘The instrumental and ethical foundations for the developed concept of intellectual freedom are powerful reasons why it has rarely been restricted by any asserted “right” of others to respect or courtesy … however desirable courtesy and respect might be, the purpose of intellectual freedom must permit of expression that departs from those civil norms.’

Furthermore, the Court reinforced the concept that there is no right against embarrassment or against lack of trust resulting from someone else’s assertions made in the course of intellectual freedom.

The Court quotes Dworkin:

‘The idea that people have that right [to protection from speech that might reasonably be thought to embarrass or lower others’ esteem for them or their own self-respect] is absurd. Of course, it would be good if everyone liked and respected everyone else who merited that response. But we cannot recognise a right to respect, or a right to be free from the effects of speech that makes respect less likely, without wholly subverting the central ideals of the culture of independence and denying the ethical individualism that culture protects.’

For the public’s safety, it’s time to cancel the cancellers

It is absolutely frightening that major medico-legal organisations have issued advice to doctors to be wary about participating in intellectual freedom and that even reporting on evidenced-based scientific data might put them in peril of being professionally ‘disappeared’ if that data doesn’t conform with the government’s ‘messaging’. Is that what the community at large expects?

Sure, the regime may allow some new information if it is from a regime-approved source and disseminated in a way that the regime approves. But that defeats the whole purpose of intellectual freedom and merely perpetuates the formation of insular establishment echo chambers. A previous article showed the mass lethality of that group-think and establishment thinking during the first world war until dissident thinkers like General Sir John Monash came along.

But what about supposedly ‘bad ideas’?

Firstly, if those ideas are plausible, then as the High Court says, the truth is found in the ‘contested marketplace of ideas’. If they are really bad ideas, then the sunlight of rigorous intellectual critique is the best disinfectant. Does driving a bad idea underground really make people think, ‘Oh well, the government told me it’s wrong, so it must be?’

Dr Li Wenliang was credited as one of the first doctors in Wuhan to sound the alarm about Covid on social media.

‘In early January (2020), he was called in by both medical officials and the police, and forced to sign a statement denouncing his warning as an unfounded and illegal rumor.’ [New York Times] Sound familiar?

Dr Li was among ‘eight people reprimanded by security officers for “spreading rumours”. [Int J Infect Dis.] Sadly Dr Li died of Covid. But during his illness, he advocated that “I think a healthy society should not have just one voice.”’ [New York Times]

And it is accepted that chilling the expression of ideas (by making people scared to speak out) is just as detrimental as the specific banning of ideas.

Scholars of history, the Australian public at large, Dr Li and the High Court of Australia, understand the importance of the developed concept of intellectual freedom.

In this context, intellectual freedom is so important to knowledge advancement through, as the High Court ruled regarding ‘the contested marketplace of ideas’, that banning intellectual freedom (unilaterally removing that contested marketplace) poses a serious risk to public health. Therefore, should doctors associated with AHPRA or the Medical Board of Australia who have participated at all in the dangerous repression of intellectual freedom have their licences to practice medicine immediately suspended while a thorough investigation is undertaken into their fitness to practice?

What builds trust in an institution? Intellectual freedom through open scientific discourse or enforced adherence to the regime’s singular ‘truth’ under the threat of professional excommunication?

Public health is still dependent on individuals receiving informed consent about treatments, consent being specific to the individual patient.

This introduces the last issue, where transparency should be favoured over repression. If any information comes to light that would materially alter someone’s decision to give/not give consent (and that information was suppressed as a result of the chilling effect on intellectual freedom by AHPRA/Medical Board’s censorship), then AHPRA and the Medical Board should be open to both civil and criminal liability for any harm caused due to the silence they fashioned.

Statements by the High Court of Australia in Ridd v James Cook University

One developed justification for intellectual freedom is instrumental. The instrumental justification is the search for truth in the contested marketplace of ideas, the social importance of which Frankfurter J spoke powerfully about in Sweezy v New Hampshire. Another justification is ethical rather than instrumental. Intellectual freedom plays ‘an important ethical role not just in the lives of the few people it protects, but in the life of the community more generally’ to ensure the primacy of individual conviction: ‘Not to profess what one believes to be false’ and ‘a duty to speak out for what one believes to be true.’

Whilst different views might reasonably be taken about some additional restrictions upon intellectual freedom, the instrumental and ethical foundations for the developed concept of intellectual freedom are powerful reasons why it has rarely been restricted by any asserted ‘right’ of others to respect or courtesy. It is not necessary to go as far as Said’s assertion that ‘the whole point [of an intellectual] is to be embarrassing, contrary, even unpleasant’ to conclude that, however desirable courtesy and respect might be, the purpose of intellectual freedom must permit of expression that departs from those civil norms.

JCU’s submission depends upon drawing a distinction between what is said and how it is said. But such a distinction may not exist. The content of what is said often depends upon how it is said. This is particularly so when impugned speech concerns the expression of an opinion. The content of speech that expresses an opinion will often be inseparable from the strength of conviction with which the opinion is held, which is tied to the manner of expression. The message conveyed by a statement, expressed tentatively ‘it may be that it was an error for Professor Jones to claim that the earth is flat’ expresses a proposition only of possibility. It cannot be divorced from the tentative manner in which it was expressed. By contrast, ‘no reasonable person could ever claim that the earth is flat’ expresses a proposition of certainty, all the more so if it is expressed in an emphatic manner.

That interpretation aligns with the long-standing core meaning of intellectual freedom. Whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a ‘convenient plan for having peace in the intellectual world’, the ‘price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind’. The 2016 Censure given to Dr Ridd was, therefore, not justified.

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This article is based on an academic paper Doctors, Intellectual Freedom and the High Court by Michael Keane: SSRN.

Michael Keane — Adjunct associate professor, Swinburne University; Adjunct senior lecturer, Monash University; Specialist anaesthetist.

Kara Thomas is the Secretary of the Australian Medical Professionals Society.

Originally published at The Spectator Australia. Photo by Karolina Grabowska.

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