萬國法律事務所

On November 3, 2023, Taiwan's Constitutional Court held Article 84 of the country's Medical Care Act (“MCA”) are unconstitutional. Article 84 prohibited individual doctors from advertising medical services although it permitted medical institutions such as hospitals to advertise.
 
The Court found that banning individual doctors from advertising violated their freedom of speech protected under Article 11 of Taiwan's Constitution. The Court applied an intermediate scrutiny standard, meaning the advertising ban must further an important government interest in a way that is substantially related to that interest. While the Court agreed that safeguarding the public's health was an important government interest, Article 84's ban all advertising by individual doctors was not substantially related to achieving that goal.
 
The Court pointed out that individual doctors were allowed to advertise medical services for over 40 years before the MCA took effect in 1986. During those decades, regulators did not adduce any evidence that advertising by individual doctors imposed risks on the health of members of the public or otherwise harmed the public interest.
 
Furthermore, not every individual doctor performs medical services within a medical institution. There are some exceptions that permit doctors to perform medical services outside an institution. In these circumstances, it is unreasonable to impose blanket advertising restrictions on all doctors.
 
In addition, Article 84 of the MCA prohibited all kinds of advertising by doctors, regardless of content. The Court noted that anything a doctor mentioned - including name, gender, education, experience, practice details, address, phone number, location maps, or office hours - could constitute "intentional solicitation" and thus be considered illegal advertising under Article 84.  This restriction was deemed overly broad and unreasonable. If the goal was to prevent inaccurate medical information, the government could have adopted more narrowly tailored measures to regulate advertising content rather than imposing a complete ban. Since the blanket prohibition went beyond what was necessary to protect the public's health and imposed an unduly sweeping restriction on the constitutionally protected speech of physicians, the Court held that Article 84 was unconstitutional with immediate effect from the date of the decision.