Poland’s conservative president has referred to the Constitutional Tribunal a law passed by parliament in July: an amendment to the Act on Patients’ Rights and the Patient Rights Ombudsman. The new law, known as Lex Szarlatan (“the law against quacks”), was presented by Poland’s governing coalition as an attempt to clear the market and the internet of services that endanger health and life and that do not conform to current medical knowledge: in short, to protect patients from what the government calls “pseudomedicine.” The government’s own announcement went further still, describing the bill as one that strengthens patients’ rights.
By referring the amendment to the Tribunal instead of signing it, the president signaled that he doubted its compatibility with the Constitution, and suggested that the new law may not be precise enough. His spokesman argued that the government’s Lex Szarlatan was a shortcut, one that “lumped together both fraudsters and thousands of legally and honestly operating Polish businesses in the herbal, dietary and complementary-medicine sectors, people who earn their living honestly.”
The new law allows very high fines—up to one million PLN, around US$266,000—to be imposed by administrative decision on practices found to be “pseudomedical.” What is new is that the fine attaches to the violation itself rather than to a failure to desist once ordered to. An appeal is available, but unlike a criminal penalty, the fine takes effect immediately and remains in force unless and until it is set aside. Because of how administrative procedure is built, an appeal against the fine goes back to the same office that imposed it. Prof. Piotr Czauderna, who chairs the president’s Health Council, objects that the ombudsman is thus “a prosecutor, a judge and an expert in one and the same case.”
The law was received with considerable enthusiasm, especially in parts of the medical profession; the presidium of the Supreme Medical Council publicly urged the president to sign it. But it also drew sharp criticism. Krzysztof Bosak, deputy speaker of the Sejm and a leader of the liberal conservative Konfederacja, argued that a more accurate name would be “lex Big Pharma,” and the label stuck among opposition politicians on the right: the implication being that legislation in this form largely serves the pharmaceutical industry.
The parties to the dispute agree on the objective—the aim of the law is “undoubtedly lofty and worthy of support,” as the president’s own health adviser put it—but they differ on how to achieve it.
What’s in a Name?
The main focus of criticism from opponents of the bill is the breadth of the definition of punishable practices. The law does define “pseudomedical practice” as, among other things, acting to preserve, restore, or improve health without practicing a medical profession, or offering a method that is not a health service while ascribing to it the properties of one. But its critics argue that the definition sweeps far too wide. Bosak warned that it could cover “any herbalist, homeopath or acupuncturist, and even a dietitian, a massage therapist, or the author of an online article about home remedies.”
The government side rejects this. The health ministry stated that the amendment does not reach fields such as herbalism, cosmetology, podiatry, yoga, or massage, and that its target is the situation in which unverified methods are credited with healing properties, or in which promoting them leads patients to abandon diagnosis and conventional treatment. The ministry also points out that the requirement of financial or personal gain attaches to the medical-disinformation limb of the definition.
Assurances of this kind are of course not an interpretation of the law, and invoking them in actual proceedings would get a defendant nowhere. Answering a citizen who feared that the new rules would bar approaches supported by scientific research but absent from official guidelines, the health ministry replied that “current medical knowledge” is a term the Act on Patients’ Rights already uses without defining it, and that its meaning has been shaped in the literature and in case law. Current medical knowledge must additionally satisfy a condition that the ministry, invoking the dictionary definition, glosses as being “in force at the given moment.”
Trade portals seem not reassured. One addressed to dietitians urges far-reaching caution over how they phrase things, both with patients and in public. A publication for masseurs and physiotherapists says much the same, though massage is a field the ministry expressly named as falling outside the law. This is the chilling effect in miniature: You must accept that the law is not aimed at you, yet you’re told to watch your words anyway.
Administrative vs. Criminal
The criticism of the new law rests on two pillars: one technical and legal, the other broader, concerning the state and the freedom of its citizens.
The first is the choice of administrative rather than criminal procedure. Harm caused by incompetence rather than by deliberate deception is in any case a matter for civil liability; fraud belongs to criminal law, which surrounds the citizen with stronger procedural guarantees. Where the accusation is in substance one of fraud, criminal procedure offers four things administrative procedure does not: proof beyond reasonable doubt; a penalty enforceable only once the judgment is final; a decision-maker who did not also investigate the case; and, arguably, a stricter standard of statutory precision.
Under the new law, an appeal and then a complaint to the administrative court can take years—years a business may not survive. Poland has seen this before: Fines imposed during the COVID-19 lockdowns were struck down en masse by the administrative courts, but appealing never suspended the duty to pay, and the money came back only years later, if at all.
The second group of doubts is broader, and concerns the limits of state interference with freedom of speech and economic freedom. For some time now, in various European countries, labels such as “fake news,” “propaganda,” and “hate speech” (and now “pseudomedicine”) have been attached to opinions to justify legal arrangements that may narrow the range of views and sources of information available to citizens. The Act on the Profession of Psychologist, adopted in January this year, expressly counts scientific research and university teaching as practicing the profession, which brings both under the disciplinary jurisdiction of the professional body. Poland’s Commissioner for Human Rights warned that this may encroach on the freedom of scientific research guaranteed by the Constitution, since a psychologist could face disciplinary proceedings for rigorous work that nonetheless conflicts with the current scientific consensus. The power is quasi-inquisitorial: The chamber decides who is right and who is not.
A French left-wing deputy, Jean-Luc Mélenchon, warned in 2018 that the proposed French anti-fake-news law risked becoming “liberticide.” Allowing for the difference in scale, both Polish acts may have a comparable effect on scientific discourse and research.
The State as Paterfamilias
Seen from the standpoint of legal and political theory, what we are watching across the developed West is a growing paternalism, a shift in how governments conceive of the citizen: less and less an autonomous, self-reliant individual, and more and more a dependent, with the state cast as paterfamilias, looking after children who cannot manage on their own.
Protecting citizens against quackery and fraud is necessary, and so are mechanisms, within a democratic state under the rule of law, that let people harmed by others pursue their claims. But those mechanisms should not rest on multiplying institutions that bring in censorship by the back door.
Citizens, and sick people above all, can be protected against the exploitation of their situation by strengthening transparency and reducing information asymmetry: easy access to reliable knowledge that supports autonomous choices about treatment. That means honest registries holding data on a specialist’s education, working methods, and credentials; open access to information about how such specialists are trained; and systems for rating them. Solutions of this kind stand a better chance of working than the arbitrary determinations of officials—and, above all, they do not encroach on freedom of choice.
Freedom of speech and of research further requires conditions in which opinions can be exchanged without constraint, the prevailing consensus can be contested, and inquiry can be pursued freely. The freedom to formulate and test claims that challenge current scientific findings is, after all, the foundation of scientific progress. None of this is a defense of relativism: To say that scientific consensus is provisional is not to say that every opinion carries equal weight. However, consensus is strong precisely because it remains open to verification and to criticism, otherwise it would not be called a consensus but dogma.
With the development of information technologies, the traditional order governing the flow of mass information has been disrupted. People today no longer rely exclusively on information provided by a relatively narrow group of television and radio producers or by book and newspaper publishers. They have access to a much broader pool of knowledge and opinions, which naturally entails far greater exposure to unverified, false, and even harmful information.
What remains unchanged, however, is that a mature democracy should treat its citizens as individuals responsible for their own lives and health, and for that of their families. It should create educational conditions that enable them to acquire the knowledge necessary to make informed decisions and develop critical-thinking skills. It should also ensure access to expert knowledge and provide opportunities to verify information and confront differing opinions while allowing individuals to make their own choices and bear the consequences of those choices. A mature democracy also creates the conditions for unfettered academic discourse, which ensures the advancement of knowledge.
What Happened to Subsidiarity?
A generation ago, the term “subsidiarity” carried real weight in political debate and in legislation. It meant that higher-level institutions such as the state should step in only when lower-level ones—the individual, the family, the local community—cannot cope on their own. Today the trend runs the other way: Decision-making is being centralized, in politics and in business alike.
Arrangements that set up quasi-apparatuses of censorship—in which an official decides, by fiat, what is true and what is not, what may be said and what may not—are tempting for how quickly they can be put in place and for their apparent effectiveness. But they can become the basis for a further erosion of individual liberty, including freedom of speech and of economic activity, and can lower the threshold for reaching for the same tools against political or economic opponents.
Subsidiarity, though, is a task with two sides to it. The question is whether the average person in the affluent global North is still willing to take on that responsibility, and that risk, for himself and his family—or whether he would rather hand a portion of his freedom, and of his responsibility, to the state.
