December 2023
Oli Wong and Sean Tang
On November 3, 2023, the Taiwan Constitutional Court issued 112-Xian-Pan-Zi-17 (Hereinafter the “Judgment”), ruling that the complete prohibition of physicians posting medical advertisements under Article 84 of the Medical Care Act (Hereinafter “contested provision”) violates the freedom of speech protected by Article 11 of the Constitution. The contested provision is declared ineffective from the date of the judgment.
1. Background of the Case:
Physician Huang posted an article about skin aging and hair loss treatment on his Facebook fan page. Taipei City Government’s Department of Health deemed this an illegal medical advertisement and fined Physician Huang NT$50,000. Dissatisfied, Physician Huang pursued appeals and administrative litigation. During the trial, the presiding judge concluded that the contested provision was enacted solely for the administrative convenience of the competent authority, infringing upon physicians’ freedom of speech and restricting their professional freedom.
The Ministry of Health and Welfare ( Hereinafter the “MOHW”) argued that medical services are of public interest, involving the general public’s lives, physical well-being, and health safety. These attributes distinguish them from ordinary commercial activities, drawing no comparison between the medical and commercial advertisements. Moreover, considering the public interest, the restrictive measures established by the contested provision are deemed proportional.
2. Reasoning of the Judgment:
The Constitutional Court recognized that physicians engaged in medical services crucial to public health operate with an altruistic and public welfare purpose, are not solely for profit. Besides promoting medical services to attract patients, medical advertisements could convey medical information and contribute to patients’ informed choices. Given the complexities and professional nature of medical behavior, the court emphasized the importance of certified physicians providing accurate information and facilitating patients’ autonomous decision-making.
The court also contended that a blanket prohibition on physician advertising does not necessarily contribute to maintaining public health. Looking back at the legislative history, the “Physicians Act,” enacted in 1943, didn’t prohibit physicians from publishing medical advertisements until the Medical Care Act was introduced in 1986. However, the MOHW as yet lacked sufficient evidence to support the idea that allowing physicians to advertise would inevitably lead to inappropriate medical advertisements requiring prohibition for public health.
Additionally, the court refuted one of the reasons for the prohibition – that physicians shall practice within health authorities’ approved medical institutions – stating that under certain conditions, physicians can still practice outside these institutions. Physicians’ ability to advertise their medical services is distinct from that of medical institutions and cannot be denied based on the premise that institutions already have this ability. The court underscored the independence of physicians in advertising their medical services, a protection afforded by the freedom of speech.
3. Analysis:
The judgment declares the contested provision regarding the prohibition of physicians posting medical advertisements unconstitutional, resolving the dispute over physicians’ inability to advertise medical services independently. Following this, medical institutions and physicians can advertise medical services, but other medical personnel or the general public remain prohibited. Physicians must adhere to existing regulations when posting medical advertisements, subject to controls such as content limitations under Article 85 of the Medical Care Act and restrictions on how advertisements are posted under Article 86.
As per the recent news from the Central News Agency, the MOHW plans to conduct a comprehensive assessment within one month, gathering Health Bureau from each city and county, along with legal experts. The aim is to propose management principles for future advertisements by medical personnel. This assessment group should review the cases currently in the administrative disposition or pending administrative procedures and those yet being conducted across health bureaus. [1] Readers interested in this issue should closely follow the subsequent actions of the MOHW.
[1] The Central News Agency (中央社), The Prohibition against Medical Advertisements Inserted by Medical Doctors Was Declared Unconstitutional, and the MOHW Will Consider the Formulation of Administrative Principles at https://www.cna.com.tw/news/asoc/202311030229.aspx
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