醫師專業言論理論之限制與司法審查──以美國司法實務為借鏡

The Restrictions and Judicial Review on Medical Professional Speech: A Contextual Analysis of the U. S. Judicial Practices

醫療實務之規範向來被認為屬於政府的權力，然而當政府規制到醫師之專業言論，即有侵害醫師言論自由之風險，在美國，已有若干司法實務承認新的言論自由理論即專業言論理論，使用以降低美國憲法增修條文第1條對於諸如醫師等專業人員之保護。當政府之規範限制專業人員對其顧客之溝通，或強迫其傳遞訊息，專業人員之言論自由即應受到重視，當專業人員提供建議，傳達專業知識予顧客，該等專業言論應該受到保護，以確保得提供正確的、可依靠的、綜合的建議，醫病間的言論在言論自由相關理論為動態的，不管是課予言論限制或被迫言論以影響醫病關係，均屬醫師與病人言論自由之核心，被迫言論可能使得主管機關得以對醫師之言論產生寒蟬效應，而貶損醫病間之信任關係，然而言論自由雖保障專業言論之內容免於政府之干預，然不應禁止政府規範專業人員。

The Regulation of Medicine has long been recognized as within the state's police power. Yet when the state regulates physician's speech, it potentially raises First Amendment concerns. A growing number of U.S. courts are recognizing a new First Amendment doctrine governing regulation of a category of expression known as ''professional speech''. The professional speech doctrine is generally used by courts to reduce the level of First Amendment protection professionals receive for their expression. When regulations of professionals restrict what they may say to clients or compel them to convey a message to a client, however, the First Amendment rights of professionals are implicated. Professional speech ought to be protected against state interference so that professionals can give their clients and patients accurate, reliable, and comprehensive advice. The physician-patient speech doctrine is a dynamic area of First Amendment law. It is critical to approach speech restrictions and compulsions that affect the physician-patient relationship as striking at core First Amendment interests of doctors and patients. Speech compulsions that order physicians to disclose information that conflicts with the weight of medical authority have the potential to chill physician speech and thus fail to reflect the imperative need for confidence and trust between doctors and patients. The First Amendment protects the content of professional speech from state interference that contradicts professional insights, but it does not prohibit the state from regulating professionals.