Advanced Western countries are very regulated societies, covered by what Tocqueville forecasted would be “a network of small complicated rules, minute and uniform.” When you notice something strange and annoying, there is a good chance that some regulation is the culprit. I recently found another example in an obscure health regulation (“Raw Medical Test Results Right to Your Inbox Spark Confusion and Concern,” Wall Street Journal, September 14, 2023).
If you have registered on your doctor’s health portal, you will find there the results of any medical tests such as blood test or scan at the same time as it is electronically transferred to him. You will also get an email or a text warning you that the new results are in. It is often convenient, but not always:
[Dr. David Gerber, a Dallas-based oncologist] said he’s had patients learn about a cancer diagnosis from a smartphone notification in the middle of a business dinner, while reading a bedtime story to a 3-year-old, and during a rush-hour commute. One patient’s spouse went to the emergency room for an anxiety attack after misinterpreting her husband’s CT scan.
And there is no way the technician can ask you if you want to receive the results at the same time as your doctor and check a box on her computer. She, and perhaps the software coder, could be guilty of a federal violation and liable to a $1-million fine.
This is part of a 2016 federal law, the 21st Century Cures Act (as brilliantly named as the recent Inflation Reduction Act), dreamed by benevolent politicians and designed by conscientious bureaucrats. They apparently did not understand that if there is a demand for such immediate information, competitive (and often greedy) hospitals and doctors would certainly find a way to offer it to their customers (called “patients” in the jargon of pre-consumer societies, from a Latin root meaning “sufferer”).
That is just a small part of the big picture. The Code of Federal Regulations contains close to 1.1 million references to prohibitions or mandates and more than 188,000 pages.
I am not claiming that the grass is greener elsewhere than under “this sort of servitude, regulated, mild and peaceful” (quoting again from Tocqueville’s Democracy in America). Arbitrary despotism like in, say, China, Russia, or India is certainly worse for most people and, to add insult to injury, less conducive to general prosperity.
My doctor told me that, when physicians’ notes were not automatically available and probably hand-written, physicians used some standard abbreviations: for example, FLD meant “funny-looking dad.” (The implication is less funny if the annotation reflected the doctor’s disapproval of the father’s lifestyle!) At any rate, easy access to the notes of your doctor or your child’s doctor has some benefits. There are also benefits in being reasonably sure that your toaster won’t melt down, that your computer will not randomly swallow your articles, that your cartridges will go bang when hit from behind by the striker or hammer, that your life insurance company will pay in 50 years’ time, and that your grocery store will stock bread tomorrow; but none of that requires special laws and regulations.
READER COMMENTS
Craig
Oct 11 2023 at 1:44pm
Dirigisme begets dirigisme, right? Indeed doctors have to worry about HIPAA and who they disclose personal health information to. Noting that disclosures might be made at an inconvenient time, the mode also might occasionally, albeit infrequently, lead to disclosures to a wrong person and a person the intended recipient would not want to see the information. By prescribing the mode in the CFR it does effectively shield the practitioner from liability for inadvertent/incidental disclosures made if the disclosure was made in the statutorily prescribed mode.
Of course the fact that this is being discussed with a straight face, obviously because its happening, in the context of federal law is absurd from the get go, but I digress.
Pierre Lemieux
Oct 11 2023 at 2:56pm
Craig: Good points. If I understand well, though, the Cures Act (the one for the 21st century!) allows state governments to override it, at least in the matter of disclosure. This would be an interesting federalist feature. So it could have been worse, which is already a big compliment for a dirigiste measure.
steve
Oct 11 2023 at 2:30pm
You don’t need to text the test results. You just need to let people know that they are available. People can decide when to access the results. If you want to access test results in the middle of a dance recital I think that is their choice. That weighs against anxiety people suffer waiting for results.
I will say its kind of odd that the people who don’t want medical professionals to decide which medications are safe would complain when medical professionals don’t decide when information is released.
Steve
Pierre Lemieux
Oct 11 2023 at 2:50pm
Steve: On hour first point, you are right that this was not clear enough in the WSJ story.
Your second point is a bit more involved. I don’t know what are the “people” you are referring to.When writing my post, I thought of mentioning that one of the benefits of this Nth law may have been to contribute to breaking the control that the corporatist medical profession has on medicine, with “patients” instead of customers. But then, this control comes in large part from the legal control of medical corporations (mainly at the state level) have on the medical markets; and because of the state’s (at all levels) heavy intervention in these markets, which limits competition. The way to disentangle the Gordian knot would be to denationalize (and de-corporatise), not to impose new legal obligations to correct the consequences of previous interventions; see Craig above. (I chose not to go into all that in this post; perhaps I should have.)
Pierre Lemieux
Oct 11 2023 at 3:09pm
Steve: On the general point of my post (and implicitly of the WSJ report, I think), some individuals might like, especially in some specific cases, an option to pre-commit to not seeing the results before their doctor. A NO box on the technician’s screen would solve the problem. The Cures Act does not allow this option. It’s like if a law required the cashier, under penalty of a $1-million dollar fine, to put a chocolate box in your grocery bag at check-out. Government intervention is the realm of uniformity: market transactions, the domain of diversity.
steve
Oct 11 2023 at 6:49pm
When you get the notification you have to go to your portal, sing in and find the results. It takes a bit of effort so I am not sure what a no box would add. The person who cant wait to check the results is the same kind of person who is checking the portal frequently anyway. If this is really your highest priority you need to not have the results post on the portal until they have been seen and OKd by the provider. The risk there is that results then get lost or greatly delayed. (I have spent a lot of time dealing with IT issues. While we like the idea of “have it your way” there are safety consequences. I would prefer safety. I am guessing you would optimize liberty?)
On the 2nd part there were recent discussions here about wanting to buy drugs without needing the approval of the FDA or any other medical group. In that case people didnt want the input of medical professionals. In your case people want people’s medical info to be controlled by medical professionals.
Steve
Pierre Lemieux
Oct 11 2023 at 11:26pm
Steve: Simple: it should be to the consumer to decide what he wants (assuming he is willing to pay for what he wants). Market competition is the mechanism to achieve that.
steve
Oct 12 2023 at 12:29pm
Not so simple. I have to tell IT and the billing people how to do this. We have to factor in costs of more lawsuits, loss of market share if the increase of suits gets publicity and do we charge th person who checks the no box or assign the costs to everyone? By my quick and dirty numbers it’s going to cost a couple of thousand if we charge the no person and $100-$200 if we charge everyone. If I have to make this decision I am just going to ask IT to put in a. pop up box that asks people if they really want to read results without talking to their provider first.
Steve
Pierre Lemieux
Oct 12 2023 at 9:17pm
Steve: At a couple of thousand, it might be the most expensive checkbox in the history of technology. I think you get a business class to Paris for that. You would be surprised how more competition would you make find less expensive No Boxes!
Jose Pablo
Oct 11 2023 at 6:38pm
“That is just a small part of the big picture. The Code of Federal Regulations contains close to 1.1 million references to prohibitions or mandates and more than 188,000 pages.”
And there are still serious people who argue that, in order to solve “our” (whatever it means) problems what we need is more prohibitions or mandates enacted by American lawmakers! (want the lawmakers to be “functional”, meaning being able to enact more prohibitions or mandates ..)
If you give a team of professionals 1.1 million tries to solve problems, and they say that what they need is more “tries”, you have every right to be skeptical about the abilities of the (self-proclaimed) experts at solving the country’s problems.
Mactoul
Oct 12 2023 at 2:10am
Is it significant that it is the rich, liberal countries who have more regulations of all sorts?
Is this micromanagement a consequence of liberalism already foreseen by Torqueville?
Or that it is the rich countries that can afford to have such regulations and poor countries can not?
For instance, the covid lockdowns were relaxed or absent in poorer countries.
Perhaps the micromanagement is a part of liberal package. You can not have one without the other.
PS I don’t know why you include India along with China and Russia where arbitrary despotism holds. There is no despotism in India, arbitrary or not. There is free press, free elections in which the ruling parties regularly lose and entire states being ruled by opposition parties.
Jose Pablo
Oct 12 2023 at 10:26am
Is it significant that it is the rich “condos” who have more regulations of all sorts?
Is it significant that it is the rich “yacht / golf clubs” who have more regulations of all sorts?
Looks like a pattern … you need to be rich to maintain a big band of useless / unproductive rule-makers. And to enforce those rules (people enforcing the rules are not producing goods and services either)
You need surplus to maintain an army. Kings of old knew that just too well.
Pierre Lemieux
Oct 12 2023 at 11:52am
Mactoul: As regularly reported in the financial fress, there is a lot of arbitrary meddling, i.e., discretionary decisions and withholding of decisions by uncontrolled bureaucrats, in India, like in most illiberal countries (although not as bad as in some others). It’s not for nothing that so many Indians emigrate whenever they can.
Pierre Lemieux
Oct 12 2023 at 12:41pm
Mactoul: To quantify this a bit, consider two well-known indexes. In the Economic Freedom of the World Index (2022 report), India ranks 121st of 165 countries on the regulation sub-index (from the less regulated to the most regulated), just before Sri Lanka. This of course has consequences for individual lives. In Cato’s Human Freedom Index (2021 report), India ranks 119th, from the best to the worst, between Niger and Rwanda.
Mactoul
Oct 13 2023 at 12:22am
But then what of the expectations that economic growth should be positively correlated with economic freedom?
Why is India one of the fastest growing economy in last two decades and the growth being led by private enterprises, no less?
One can find any number of arbitrary bureaucratisms in all countries and in all era. I would call the covid lockdowns as a huge instance of arbitrary despotism and they were most strict and arbitrary in liberal countries and the least in poor countries. India had lockdown but poorer Pakistan, Nepal, Bangladesh didn’t have.
Currently there is an agency in Britain called Office of Communications, Ofcom for short which “has has wide-ranging powers across the television, radio, telecoms and postal sectors. It has a statutory duty to represent the interests of citizens and consumers by promoting competition and protecting the public from harmful or offensive material.” (Wikipedia)
Indians emigrate, not because they are fleeing some despotism, but they find greater economic opportunities aboard. India, because of a great population, is highly competitive place.
Jose Pablo
Oct 14 2023 at 3:19pm
Why is India one of the fastest growing economy in last two decades and the growth being led by private enterprises, no less?
For the same reason that Maldives, Samoa, Tajikistan, Rwanda and Ethiopia also lead that ranking.
The question is why is India below Bolivia, Guatemala, Vietnan or Ecuador (to name just a few) in terms of GDP per capita.
The only thing you need to grow at a truly huge rate is starting from zero.
Matthias
Oct 12 2023 at 10:24pm
What is that declaration based on?
As far as I can tell, many poor countries have many more regulations and red tape. India is a particularly egregious example.
The ‘ease of doing business’ indices try to capture some of that. And poor countries often places pretty low on those.
I suspect you are trying to figure out a puzzle that doesn’t exist?
Mactoul
Oct 13 2023 at 12:07am
In India any poor man can hawk something or other, open a food stand with minimal regulations, though he may have to pay off the police.
Hundreds of millions do so. There are no men not working. The regulations you speak of operate for larger, formal businesses.
In European countries, this ease of informal work doesn’t exist. There is no license to operate barbershop in India or a beautician.
So, arguably economic freedom is greater in India and other poor countries, if you look at impact on informal sector and not merely look at pages of regulation for formal sector
Matthias
Oct 12 2023 at 10:29pm
Your example of software swallowing your data is a good one. Because software is one of the few areas least touched by regulation, and you can clearly see how stability has improved over time. Pointing to regular market forces being responsible.
(Of course, people’s desires are complicated. Modern hardware is a lot faster than what we had in previous decades, but how fast software starts has barely changed and sometimes even regressed. Similar for website loading speed.)
Mactoul
Oct 13 2023 at 1:47am
Some points
The state consumes more of GDP in rich, liberal countries compared to poor Third World.
Third World regulation is copied from the rich, liberal countries. India didn’t have anti-trust since a few years ago and its case against Google or Microsoft was found to be lifted straight from American or perhaps European case.
The idea that the people themselves want regulation should not be ignored. In liberal countries, ordinary people have more power and thus they are more able to realize their preferences for all kinds of regulations.
Evasion of regulations is standard feature in poor countries. In India, prescription drugs are easily purchased without any prescription in pharmacies.
Pierre Lemieux
Oct 14 2023 at 7:31pm
Mactoul: You write:
“Consumes,” no; “redistributes,” yes. It is better to use the terms in their economic and official meaning. I think the statistics show that rich-country states generally redistribute more (in proportion of GDP). But note that, in rich countries, the formal redistribution goes from the rich (two top quintiles) to the poor (two bottom quintiles), while in poor countries, redistribution generally goes from the rural poor to the rich urban elite. I think that official statistics (IMF, World Bank) will show that poor-country states do generally consume less (in proportion of GDP) than rich countries–in bureaucratic salaries, school and hospital (and infrastructure) maintenance and personnel, paper clips, and such. This last point is even more obvious if you consider potential GDP, that is, what GDP would be if state dirigisme did not keep the population in poverty.
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