LAST WEEK the National Assembly (lower house) of the French Parliament passed a Bill that criminalises certain forms of dissuasion from orthodox or ‘established’ medical treatments, including prophylactic or preventive treatments, which could, potentially, include vaccines. The measure has attracted national controversy in France and been condemned as a ‘disproportionate’ attack on freedom of expression by the French Council of State (Conseil d’Etat). This is a governmental body that acts both as legal adviser to the executive branch and as the supreme court for administrative justice.
The legislation is part of a Bill ‘intended to support the fight against sectarian aberrations and improve support for (their) victims‘. You may be wondering what dissuasion from medical treatment has to do with ‘sectarian aberrations’. If so, you are not alone. France’s own Council of State finds it confusing:
‘Despite the title chosen by the Government, which refers only to sectarian phenomena, the Bill actually covers a wide range of threats and activities, most of which are not based on beliefs or ideologies, and which derive a large part of their danger from the use of social networks.’
The Bill’s Article 4, which is concerned with the protection of citizens’ health, has proved especially controversial. It defines a new crime, which we might loosely translate into English as something like ‘incitement to treatments or non-treatment that put ill people’s life or health at serious risk’.
Here is what Article 4 proposes:
- One year in prison and 30,000 euro fine for ‘inciting’ a sick person, through persistent pressure or manipulation, to abandon or refrain from following a medical treatment, whether therapeutic or prophylactic, in case the incited action is, according to the current ‘state of medical knowledge’, clearly liable to cause grave harms to someone’s physical or mental health.
- One year in prison and 30,000 euro fine for ‘inciting’ someone to adopt an allegedly therapeutic or prophylactic practice that would, according to the current ‘state of medical knowledge’, clearly expose the patient to an ‘immediate risk’ of death or permanent injury.
- If the actions ‘incited’ in 1 and 2 produce the harms in question, the person responsible for the ‘incitement’ shall be punished with three years in prison and a 45,000 euro fine.
So what is the upshot of the measures contained under Article 4 of the Bill ‘intended to support the fight against sectarian aberrations and improve support for (their) victims‘? Do they criminalise dissent from prevailing medical opinion? Certainly not all such dissent. For example, the mere fact of dissuading healthy people from receiving a vaccine would not, under this law, constitute a crime, since the crime of inciting someone to abandon or refrain from receiving a treatment is concerned with influence over sick people, not healthy people.
However, if someone shares information that encourages people with existing comorbidities to refrain from taking a vaccine that is, according to established ‘medical knowledge’, necessary to reduce the risk of grave harms to a patient’s life or health, that person could potentially be imprisoned for a year and fined 30,000 euros. Given that the target population of vaccination campaigns often does include sick people, it is hardly a stretch to argue that public criticism of the safety of a vaccine could constitute ‘incitement’ to non-vaccination for sick or frail people.
In addition, if someone shares information that encourages someone to adopt a novel treatment that is deemed by established ‘medical knowledge’ to expose a patient to an ‘immediate risk of death or permanent injury’, but such a person does not clearly communicate said risk clearly, they may be liable to one year in prison and a 30,000 euro fine.
We routinely hold doctors legally responsible for reasonably foreseeable harms that befall their patients due to their medical interventions, at least where such risks are due to negligence or not justified by the likely benefits of the intervention. However, there is something very troubling about a law that holds citizens criminally responsible for the potential medical risks that others might incur by consuming their ideas and arguments, or reading their books, or watching their videos online.
This law is not concerned with medical practice per se: rather, it is concerned with speech about medical practice: specifically, it defines a crime of incitement to forms of treatment or non-treatment deemed to put a patient’s health at serious risk according to the current ‘state of medical knowledge’. ‘Incitement’ to unconventional medical treatments or non-treatment would include, presumably, arguments made in the public sphere on behalf of unconventional treatments or against conventional treatments, whether therapeutic or prophylactic.
So if a citizen or scientist or physician engages in public debate about the safest and most effective way to treat or prevent a disease, and their advice is deemed by public authorities to gravely endanger the life or health of sick people, they may be criminally prosecuted and imprisoned if this Bill becomes law.
On what basis can a prosecutor or judge decide which sorts of speech, rhetoric or advice constitute incitement to medical behaviour with grave risks to the life or health of sick people? According to this Bill, the risks of a recommended treatment should be decided by the ‘state of medical knowledge’.
This is a deeply problematic proposition, since the level of risk associated with a treatment, as well as its likely benefits, is often a matter of ongoing debate and investigation which is not scientifically settled for a considerable length of time. A case in point is mRNA vaccines, whose risks, including the risk of myocarditis, were not widely acknowledged by medical regulators until the vaccination campaigns were well under way.
Appealing to the current ‘state of medical knowledge’ is heavily biased toward the most dominant paradigms and beliefs and heavily biased against novel and dissenting approaches. This cuts against the whole scientific enterprise, which relies on innovation and requires freedom to challenge dominant paradigms of medicine, which cannot reasonably be considered as immune to criticism or error.
A law that shuts people down or criminalises them under the pretext that their ideas might ‘incite’ someone to refrain from taking a conventional treatment, or under the pretext that their ideas might ‘incite’ someone to take a risky treatment, would have a chilling effect on scientific debate and tend to shield prevailing paradigms of medicine from serious challenge. Overall, such a law would constitute a disproportionate and unjustified infringement of freedom of expression, as the French Council of State correctly observed:
‘The Conseil d’Etat points out that when the offences are the result of general and impersonal discourse, for example on a blog or social network, while the objective of protecting health . . . may justify restrictions on freedom of expression . . . a balance must be struck between these constitutional rights, so as not to jeopardise the freedom of scientific debate and the role of whistleblowers by criminalising challenges to current therapeutic practices. It considers that, insofar as they aim to prevent the promotion of so-called “unconventional” healthcare practices in the press, on the internet and on social networks, such provisions constitute an infringement of the exercise of freedom of expression, protected by Article 11 of the Declaration of 1789. (translation)
