Yesterday the Obama Administration announced some new gun control measures. Because President Obama issued executive orders, rather than proposing legislation to be debated and approved by Congress, most of the attention was on whether the President overstepped his authority and violated the intended constitutional balance of powers between the executive and legislative branches.
I’d like to focus on a different, substantive element of the changes announced yesterday: namely, changes to a federal law protecting the privacy of certain health information to allow reporting of individuals who would fall within the mental health prohibitions of the federal gun background check law. Politico reports that the new rule “enables health care providers to report the names of mentally ill patients to an FBI firearms background check system.” Diagnostic information about the nature of the mental health condition being treated, however, would still be subject to privacy restrictions.
The announcement of the new rule by the Department of Health and Human Services uses the kind of dense, acronym-filled administrative jargon that makes ordinary people scratch their heads and throw up their hands, and it is not entirely clear the extent to which it applies to doctors — although the HHS announcement acknowledges that a number of comments it received about the rule expressed concerns about how the reporting issue would affect the “patient-provider treatment relationship and individuals’ willingness to seek needed mental health care.”
This is a difficult issue, because we’ve seen, over and over again, the carnage that can ensue when a mentally disturbed person builds an arsenal and then acts out their disturbed fantasies. We want to keep those people from buying guns. At the same time, however, notions of doctor-patient confidentiality are important — most states have laws or rules of evidence that protect such confidentiality — and exist precisely to encourage people to see a doctor and, in this example, seek treatment for their mental health issues. New rules, even permissive ones, that could interfere with that confidentiality raise a legitimate concern, because if people who might otherwise seek treatment understand that by doing so they risk being disclosed to a federal database as mentally unfit, they may decline to seek treatment in the first place. And if physician reporting of information that would disqualify a patient under the gun purchase laws is permissive, and a physician chooses not to report a patient who fits such criteria and the patient then acts on their fantasies, can the physician be sued for failing to report? And, if the answer to that question is yes, won’t reporting become routine — and therefore the prospect of discouraging people from receiving treatment in the first place become even more likely?
No one wants to see mentally unbalanced people get their hands on guns, and we’ll have to see how these new rules play out, but this is a very sensitive area. If the new regulations have the effect of discouraging people from seeking needed mental health treatment, they may unintentionally compound the problem.