It seems to me the Miranda principle cuts in precisely the
opposite direction. Recall that Miranda applies only when a police officer
questions a suspect who is in custody. Even though a police officer always has
some degree of coercive authority, non-custodial questioning isn't governed by
Miranda. On top of that, it's not illegal for the police officer to question a
suspect without Miranda warnings even when the suspect is custody; it's just
that the statements can't be admitted at trial against the suspect.
Patients aren't in custody; they aren't under arrest, or
otherwise coercively restrained by the doctor. They are free not to answer
questions, and I'm pretty sure they already know they are free not to answer
questions. (What's going to be happen if you don't answer - you'll get
prosecuted for "obstruction of medicine"?) This is the sort of situations
where no warnings are required even when the questions are asked by police
officers who carry guns and who have the power to arrest you. And the theory
is that Miranda somehow provides justification here for restricting the
doctor's First Amendment rights? I don't see that.
Eugene
> Under the Miranda principle, suspects who are too ignorant to know what
> rights they have must be informed of them before they are questioned. The
> principle is that it is unfair to the point of unconstitutionality to exploit
> a
> suspect's ignorance of his protections.
>
> A doctor who questions a patient about his gun ownership may eventually (if
> not already) be forced to report the results to insurers and government
> entities.
> Most patients are unaware of this consequence. The "boundary violation"
> approach is aimed at preventing exploitation of the patient's ignorance, under
> the theory that if we cannot inform the patient of the risks of answering,
> perhaps we can prevent the doctor from asking.
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