The U.S. has decided that doctors should play a role in assessing risk, but we’re not giving them the tools to act on that risk, and so these efforts are mostly futile. That’s in part because of the Health Insurance Portability and Accountability Act, known as HIPAA, which prevents doctors from reporting a patient as dangerous unless the specific threat they pose is both “serious” and “imminent.”
HIPAA is important ― it protects the privacy and security of Americans’ health information and prevents employers from discriminating against employees on the basis of their medical histories. It also provides the trust, in an ideal doctor-patient relationship, to share extensive personal information ― including family, medical, psychological and drug use histories, disease and gun ownership statuses.
But that same sensitive knowledge that allows for high-quality treatment can also put doctors in a difficult ethical situation.
One of the biggest tip-offs that a person will commit a violent act is if they make a violent threat, and it isn’t uncommon for such threats to happen in a medical setting.
“Sometimes the only person who is aware that there’s a serious and imminent threat is a physician,” said David Rosmarin, the director of forensic psychiatry at Harvard Medical School’s McLean Hospital. “And that clinician is barred under HIPAA from disclosing that threat if it’s below serious and imminent.”
We’re there to treat people. Putting us in the position of being the gun snitches is a difficult position to be in.
David Rosmarin, Harvard Medical School’s McLean Hospital
HIPAA constraints become even more complicated in cases when the risk of violence isn’t overt or immediate. A clinician can assess that the patient has two major risk factors for the potential to commit gun violence, but can’t predict the future.
The doctor is forced to make a quick judgment call: Is the threat the patient presents both serious and imminent enough to report him to the police? If the patient doesn’t meet both of those risk standards, the doctor could be violating patient privacy and breaking the law by speaking up.
As Dr. Christopher Barsotti, an emergency medicine doctor in Bennington, Vermont, puts it, there are many examples of violence with a gun that could be classified as “near misses” and go uncounted.
Barsotti listed a series of de-identified examples from a single Vermont emergency room, which he published on VTDigger, a Vermont-based nonprofit journalism website, in 2015:
…the abused woman whose husband put a handgun on the kitchen table “for effect” when he beat her; the out-of-control kid who grabbed an unsecured gun and faced down his parents when he was mad; the mentally unstable man who scared the hell out of his neighbors with an impressive array of high-capacity firearms; the woman who tried to shoot herself with a long gun, but jerked the stock when she pulled the trigger, missed and blew a hole through her apartment wall; the heroin addict who dropped a handgun out of his pocket before passing out on the gurney; the kid who could have been a school shooter, but someone got worried and brought him in for treatment; the woman who overdosed on pills after witnessing the shooting death of a loved one.
Generalized worry that someone is capable of committing gun violence doesn’t reach the threshold ― and neither do several other scenarios. What if the patient has Alzheimer’s and can’t remember how to lock his front door, much less his gun safe? If the threat’s not serious and imminent, there’s nothing a doctor can do without breaking the law.
Doctors also have to think carefully about whether reporting an at-risk person will ultimately do more harm than good to that patient and his family.
If, for example, a pediatrician calls child protective services because a parent reveals that there are unlocked guns in the home, it’s likely that the pediatrician would not see that child in her practice again ― and worse, the parent may take the child out of the health care system entirely.
The likelihood that a parent would reveal to a doctor he doesn’t store his gun safely is higher than you might imagine, according to research published in the journal Pediatrics earlier this month: Nearly 70 percent of gun-owning parents with children in the home reported that they did not properly store their weapon, even when they had a child in the home had been diagnosed with a mental illness that would put him at risk for suicide, such as major depression.
Doctors’ first responsibility is to their patients ― not the public.
Beyond doctor discomfort, there’s the potential that predicting future violence could infringe on patient civil liberties and unnecessarily insert law enforcement into situations in which an individual hasn’t committed any crime.
“We’re there to treat people,” Rosmarin said. “Putting us in the position of being the gun snitches is a difficult position to be in.”
Arthur Caplan, the founding director of New York University’s Division of Medical Ethics, said he wasn’t worried about degrading civil liberties by reporting at-risk patients. The bigger problem, he argued, is that there’s no system of interventions in place if doctors do decide to report patients.
“We don’t force people into treatment for threats,” he said. Caplan recalled posing a hypothetical question to a Philadelphia police officer. Caplan asked what the officer would do if he called 911 and reported a neighbor who regularly frequented the area with a gun.
“When he shoots somebody ― call,” the officer replied.
Angry men with guns are harder to disarm than people with mental illness.
While mental health providers tend to agree that the mental health system is dysfunctional, identifying mental illness as the root of gun violence drawns doctors and mental health experts into the conversation for the wrong reasons. The notion that we can prevent mass shootings by “fixing” mental health is an inaccurate representation of mental illness and a wildly ineffective gun violence prevention strategy.
After the Sandy Hook Elementary School shooting in Newtown, Connecticut, in 2012, New York State passed the NY SAFE Act to “stop criminals and the dangerously mentally ill from buying a gun,” according to New York Gov. Andrew Cuomo (D).
In practice, the law requires medical doctors, registered nurses and mental health professional to report patients who have a mental health diagnosis and own a gun, and who are “likely to engage in conduct that would result in serious harm to self or others.” Some mental advocates have complained that the NY Safe Act violates HIPAA, while others believe it puts undue blame and stigma on those with mental illness, who are more likely be the victims of violent crime than to perpetuate it themselves.
“It was passed with some haste, in my opinion, without adequate input by the mental health community and specifically the New York State Office of Mental Health,” said Dr. James Knoll IV, director of forensic psychiatry at SUNY Upstate Medical University in Syracuse, New York.
“The vast majority of psychiatric diagnoses and mental illnesses are just completely unassociated with the potential for gun violence,” he said.