Should your Doctor decide if you can have a gun?
By John D. Turner
12 Apr 2013

Among the many laws now being considered in knee-jerk reaction to the latest mass murder, this time in New Town Connecticut, is a bipartisan bill being offered by Senator Pat Toomey (R-PA) and Senator Joe Manchin (D-WV) intended to address just this issue. The bill would allow a doctor to add a patient to the National Instant Criminal Background Check System (NICS) if they feel that the patient might be a danger to themselves or others around them. Moreover, because informing the patient that they were going to be added to the list might cause the patient to dive off the deep end, they can do so even without the knowledge of the patient in question.

Now, I am sure we all want to keep guns out of the hands of the seriously mentally ill. And I am sure that most of us would agree that those who perpetrated the mass killings at Columbine, Aurora, and New Town, among others, fall into that category. Heck, the guy who recently slashed a bunch of people on a college campus in Houston because he had this desire to cut off people’s faces and wear them as masks fits this description to a T. We can all agree on what constitutes “seriously mentally ill” when it comes to those we would like to keep out of the hands of at all costs; at least after the fact. But can we really tell who poses such a threat beforehand?

What is mental illness? How do we know that someone is a danger to themselves or to society? Recently, the State of New York passed a law that has similar components to the one that Senators Toomey and Manchin are proposing. Called the NY SAFE Act, it was signed into law by Governor Andrew Cuomo on January 15th of this year. As part of this act, anyone identified as suffering from a mental health condition (just as in the legislation being proposed by Toomey-Manchin) can have their guns seized by police. What constitutes a mental health condition? Apparently, having been prescribed “psychotropic drugs” qualifies. Psychotropic – that sounds frightening and dangerous; what does it mean?

According to an ABC news report, “The phrase “psychotropic drugs” is a technical term for psychiatric medicines that alter chemical levels in the brain which impact mood and behavior.” There are quite a number of these, including some of the most commonly prescribed drugs in the country. They include, among others, such drugs as Ambien, used as a sleep aid; Antabuse, used to treat alcohol addiction; Inderal, prescribed for acute anxiety, panic attacks and hypertension; Lunesta, another commonly prescribed sleep aid; Neurontin, an anticonvulsant, sometimes used as a mood stabilizer or to treat chronic pain; Ritalin, one of the most prescribed drugs in our nation’s schools, used to treat ADD and ADHD; and the list goes on.

Interestingly, these drugs, like many others, are prescribed for things that have nothing at all to do with any “mental illness.” People take Ambien, for example, to get a good night’s sleep, as ads on TV will tell you. Would you, as a gun owner, take Ambien if you knew that it might result in losing your right to gun ownership? Neurontin, as noted above is also prescribed to treat chronic pain. Imagine going into a hospital for back surgery and coming home only to be met at the door by the NYPD demanding that you turn over all your weapons immediately.

Something very similar happened to a man named David Lewis, who lives near Buffalo, NY.

Last week, Mr. Lewis received a notice from the Erie County clerk informing him that his license to keep and bear the arms of his choice, custom target guns he uses for shooting competition, has been suspended. He was ordered to surrender his weapons immediately or else the license would be revoked and he would be charged with illegal firearms possession. Mr. Lewis, a librarian, has no criminal record. And “Alcatraz versus the Evil Librarians” aside, no one seems to think he is a danger to society, so how did this happen? Apparently last year, Mr. Lewis was prescribed Zoloft for a temporary condition that has since been resolved.

Zoloft is a “psychotrophic drug.”

The scenario went something like this. The State Police informed the local judge that “a pistol permit holder in our County had a mental health condition that made them a potential harm to themselves or others.” By law, this necessitated suspension of his license under the SAFE Act, which is what the judge did. But how did Mr. Lewis come to the attention of the State Police in the first place? It seems that the New York State Police have been running medical records of individuals in the state against a list of psychotropic drugs. They got a match against Mr. Lewis from his Zoloft prescription.

This is just the sort of thing that the Health Insurance Portability and Accountability Act (HIPAA) is supposed to prevent. Part of HIPPA, the Privacy Rule, is supposed to protect the privacy of individually identifiable health information. It sets standards for the security of electronic protected health information and is supposed to protect identifiable information from being used to analyze patient safety events. In other words, I am not supposed to be able to access your health care information without your knowledge, and use it to make assumptions about the nature of your health or mental state. The law was designed to protect health insurance coverage for workers and their families when they change or lose their jobs, establish national standards for electronic health care records, and protects an individual’s private health information from being released to unauthorized persons.

HIPPA also contains provisions for releasing medical information to law enforcement officials without the patient’s written consent as long as the information is released under any of the following conditions:

Unfortunately, none of these conditions appear to apply in the case of Mr. Lewis. It is possible that state law in New York might require providers to disclose medical information to state authorities with looser restrictions. If so, the Federal statute trumps such state law. Only in cases where state law provides greater protections will state law preempt federal requirements under HIPAA. In other words, one cannot simply go trolling through medical records to see what pops out. Nor can one simply bounce medical records against a list of psychotropic drugs and arbitrarily suspend the gun licenses of anyone who pops out. Just because a person was prescribed Neurontin for lower back pain doesn’t mean they are going to be the next mass murderer at your local Walmart.

So, the Toomey- Manchin bill attempts to solve that problem by involving competent medical authority. If a doctor thinks you may be a threat, then he or she can add you to the (NICS) to protect the public against the possibility of you acquiring a firearm in the future. Sounds reasonable, doesn’t it? Who better qualified than a doctor to determine if someone is a threat, right?

Except – have you ever gone to a doctor for something that seemed quite simple and then discovered that you had to go through all sorts of tests to determine this, that, and the other? You probably didn’t worry about it too much, since your insurance was picking up the tab, and the doctor is a medical professional. Surely all those tests were necessary to determine what was really wrong with you.

According to the Congressional Budget Office, up to 30% of the health care provided by doctors in the United States is unnecessary. Doctors themselves estimate that $6.8 billion is spent each year in unnecessary medical tests, wasting not only money, but time and resources as well. Why does this happen? The cynical might say doctors are padding their bills – ordering unnecessary tests so that the patient can be billed more. Since the insurance usually pays, not the patient, who cares? Doctors say there are two main reasons. The first is because that is the way they are trained. And the second? Defensive medicine. “Nobody ever gets sued for ordering unnecessary tests.” A lot of the medicine practiced today is CYA medicine.

Now think about the ramifications of making doctors the gatekeepers when it comes to the decision of who should and shouldn’t own a gun, because that is what this legislation is in effect doing. Currently, if I am a doctor, and I prescribe a psychoactive drug to a patient, and then that patient turns around and commits a crime with a weapon, I am not the guilty party. But if I had the opportunity to make a notation in a database and failed to do so, now I can be held liable.

What do you think I am going to do?

Currently, the government is encouraging doctors to ask their patients questions concerning guns; do they have guns at home, for example. While it is not mandated at this time that they do so, people are reporting that they are being asked these questions by doctors. And it is a fact that the President has asked doctors to ask their patients about firearms in their homes, and the safe storage of such firearms, particularly if they have a young child at home or mentally ill family members.

There is nothing at the present that requires you to answer the question, or that keeps you from lying if you wish. That of course could change if Obamacare ever morphs into a single payer system as the left would like and as seems obvious it will eventually, the way it is set up. However, if you were a doctor and asked that question, and the patient seemed evasive or untruthful, wouldn’t you enter their name into the records “just in case?”

And that is to say nothing of doctors whose personal convictions might be “anti-gun”, and might see such a law as a golden opportunity to rid the world of gun owners, one patient at a time. And once you are on such a list, how, pray tell, does one get one’s self off the list?

Mr. Lewis got an apology of sorts from the New York State Police, who admitted they sent the letter to the wrong person (but not that they had done anything wrong, of course). And Mr. Lewis will get his guns back – after he attends a court hearing. All’s well that ends well, I suppose.

Or is it? Am I the only one out here who sees this as a means to deny gun ownership to virtually all Americans? More in my next article.

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