Arturo D. Brion

Arturo D. Brion

D. Freedom of Expression of Health Practitioners and theRH Law [P. 40]

I submit that Section 23(a)(1) of the RH Law, which penalizes healthcare providers who "knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health" is an unconstitutional subsequent punishment of speech.

Broken down to its elements, Section 23(a)(1)78 of the RH Law penalizes health care providers who (1) knowingly withhold information about programs and services on reproductive health; (2) knowingly restrict the dissemination of these programs and services; or (3) intentionally provide incorrect information regarding them.

These prohibited acts are, by themselves, communicative and expressive, and thus constitute speech. Intentionally providing incorrect information cannot be performed without uttering, verbally or otherwise, the information that the RH Law deems to be incorrect. The information that is illegal to withhold or restrict under Section 23 also constitutes speech, as it is an expression of data and opinions regarding reproductive health services and programs; thus, the prerogative to not utter these pieces of information also constitutes speech.79

By penalizing these expressive acts, Section 23 imposes a subsequent punishment on speech, which as a counterpart to the prohibition against prior restraint, is also generally prohibited under the constitutional guarantee of freedom of expression. Without an assurance that speech would not be subsequently penalized, people would hesitate to speak for fear of its consequences; there would be no need for prior restraints because the punishment itself would effectively serve as a chilling effect on speech.80

[P. 41] While I am aware of the state' s interest in regulating the practice of medicine and other health professions, including the communications made in the course of this practice, I believe that Section 23(a)(1) of the RH Law has overreached the permissible coverage of regulation on the speech of doctors and other health professionals.

Jurisprudence in the United States regarding the speech of medical practitioners has drawn a distinction between speech in the course of their practice of medicine, and speech in public.81 When a doctor speaks to his patient, his speech may be subjected to reasonable regulation by the state to ensure the accuracy of the information he gives his patient and the quality of healthcare he provides.82 But when the doctor speaks to the public, his speech becomes protected speech, and the guarantees against prior restraint and subsequent punishment applies to his expressions that involves medicine or any other topic.83 This distinction is not provided in Section 23(a)(1) of the RH Law, and we cannot create a distinction in the law when it provides none. Thus, I submit that Section 23(a)(1) violates the right of health practitioners to speak in public about reproductive health and should simply be struck down.

In particular, Section 23(a)(1) of the RH Law fails to pass the balancing of interests test designed to determine the validity of subsequent punishments that do not involve the state's interests in national security crimes. Under this test, the Court is tasked to determine which of the competing legitimate interests that the law pits against each other demands the greater protection under particular circumstances.84

In the present case, Section 23(a)(1) of the RH Law pits against each other the State's interest in promoting the health and welfare of women on the one hand, and the freedom of expression of health practitioners, on the other. The Solicitor General, in particular, emphasized the need for Section 23(a)(1) to fulfill the State's goal to secure the people's access to full, unbiased and accurate information about reproductive health services.

[P. 42] While I do not wish to underestimate the State's interest in providing accurate information on reproductive health, I believe that the freedom of expression of medical health practitioners, particularly in their communications to the public, outweighs this State interest for the following reasons:

First, we must consider that the RH Law already puts the entire State machinery in providing an all-encompassing, comprehensive, and nationwide information dissemination program on family planning and other reproductive health programs and services. The RH Law commands the State to have an official stand on reproductive health care and the full-range of family planning methods it supports, from natural to artificial contraceptives. It then requires the national government to take the lead in the implementation of the information dissemination campaign,85 and local government units to toe the line that the national government draws.86

The RH Law even requires both public and private hospitals to provide a full -range of modem family planning services, including both natural and artificial means. This necessarily means that hospitals (where the health practitioners work) are required by law and under pain of penal punishment, to disseminate information about all available reproductive health services.

To my mind, this information dissemination program, along with the mandatory requirement for hospitals to provide a full range of family planning services, sufficiently cover the state's interest in providing accurate information about available reproductive health services and programs. If, corollary to the State's interest to promote accurate information about reproductive health, it intended to make health care practitioners accountable for any negligence they may commit in the course of their practice, I submit that, as my second argument will further expound, the existing regulatory framework for their practice already sufficiently protects against such negligence and malpractice.

Second, the existing regulatory framework for the practice of medicine sufficiently penalizes negligence and malpractice, to which the [P. 43] provision of inaccurate information or the withholding of relevant medical information belongs.

Under our laws, an erring health practitioner may be subjected to three separate proceedings. Depending on the act he or she has committed, the health practitioner may be held criminally and civilly liable by our courts,87 and administratively liable by their professional regulation board.88 For government employees, they can also be held administratively liable under civil service laws.89

Thus, I do not see any reason to add another penalty specific to speech that covers reproductive health, especially since, as pointed out earlier, state interests in providing accurate information about RH services are already fully covered.

Lastly, and what, to me, tips the balance overwhelmingly in favor of speech, the chilling effect that Section 23(a)(1) creates against the expression of possible ideas, discussions and opinions could eventually hinder progress in the science and research on reproductive health. Health professionals are the most qualified to debate about the efficacy and side effects of reproductive health services, and the penalty against uttering incorrect information about reproductive health services could silence them. Even worse, the requirement for them to provide information on all reproductive health programs of the government could add to the chilling effect, as it sends a signal that the only information on reproductive health that should be considered as correct is that of the government.

In these lights, I concur with the ponencia's conclusions, subject to the points I raised in this Separate Opinion.

Notes

78.  Section 23 of RA 10354 reads:

SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider. whether public or private, who shall:
(I) Knowingly withhold information or restrict the dissemination thereof, and/or
intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abonifacient and effective family planning methods;

79.  The right to speak inciudes the right not to speak, J. Cruz, Separate Opinion in Ebralinag v. Division Schools Superintendent of Cebu, G.R. No. 95770, March 1, 1993.

80.  See Todd F. Simon, First Amendment in the Twentieth Century U.S. Supreme Court begins to define freedoms of speech and press, in HISTORY OF MASS MEDIA IN THE UNITED STATES: AN ENCYCLOPEDIA (1999), p.223; New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

81.  See Robert C. Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 3 Univ. of Illinois Law Rev. 939, 2007.

82.  The practice of medicine, like all human behavior, transpires through the medium of speech. In regulating the practice, therefore, the state must necessarily also regulate professional speech. Without so much as a nod to the First Amendment, doctors are routinely held liable for malpractice for speaking, or for failing to speak. Doctors commit malpractice for failing to inform patients in a timely way of an accurate diagnosis, for failing to give patients proper instructions, for failing to ask patients necessary questions, or for failing to refer a patient to an appropriate specialist. !n all these contexts the regulation of professional speech is theoretically and practically inseparable from the regulation of medicine. Id. at 950 - 951.

83.  See Bailey v. Huggins Diagnostic & Rehabilitation Center, 952 P.2d 768 (Colo. Ct, App 1997), where the Colorado Supreme Court made a distinction between a dentists' speech made in the course of a dental treatment, and his speech in books and opinion articles; the former may be the subject of a malpractice suit; the latter, on the other hand, is not.

84.  American Communications Assoc. v. Douds, 339 US 282, as cited in Gonzales v. COMELEC.

85.  It mandates the Department of Health and local government units to "initiate and sustain a heightened nationwide multimedia-campaign to raise the ievel of public awareness" on reproductive health, including family planning, and mandates local governments in highly-urbanized cities to operate mobile health care services, which shall, aside from providing health care goods and services, disseminate knowledge and information on reproductive health.
Aside from capacity-building, the DOH is also required to update local govemment units with
appropriate information and resources to keep the latter updated on current studies and researches relating to family planning. These pieces of information shall, presumably, include information issued by the Food and Drugs Administration regarding the use of and safety of contraceptives.

86.  Further, the RH Law mandates the DOH to disseminate information and train local governments as regards its reproductive health care programs, and provide them with the necessary supplies and equipment. Local government units, in tum, are mandated to train their respective barangay health workers and other barangay volunteers on the promotion of reproductive health.

87.  In this jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code, and in some instances, as a criminal case under Article 365 of the Revised Penal Code, Cruz v. Court of Appeals, G.R. No. 122445, November 18, 1997.

88.  Under Presidential Decree No. 223, the Professional Regulation Commission exercises
supervisory powers over professional boards; these professional boards exercise administrative, quasilegislative, and quasi-judicial powers over their respective professions. This includes investigating and adjudicating administrative cases against professionals. Professional Regulation Commission, Professional Regulatory Boards. Doctors, for instance, follow the Code of Ethics of the Board of Medicine of the Philippine Regulatory Commission (PRC) and the Code of Ethics of Medical Profession of the Philippine Medical Association (PMA). Complaints regarding a violation of these codes may be taken cognizance by the Commission on Ethics of the PMA (Section 3A, PMA By-laws), or by the Board of Medical Examiners (Section 22, Rep. Act No. 2382).

89.  Doctors who are public officials are subject to Civil Service Laws and the Code of Conduct and Ethical Standards for Public Officials and Employees. See, for instance, Office of the Ombudsman v. Court of Appeals and Dr. Macabulos, G.R. No. 159395, May 7, 2008.