Patient Privacy vs. Public Danger

As part of the Obama administration's gun control efforts, the Department of Health and Human Services is emphasizing that HIPAA allows healthcare providers to disclose patient health information to law enforcement if they believe the patient is a danger to themselves or others.

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HHS sent a letter about the HIPAA provision to healthcare providers to carry out one of the 23 executive orders signed by President Obama this week related to his gun control program.

The letter, signed by Leon Rodriguez, director of HHS' Office for Civil Rights Director, was sent to major medical associations for mental health and other healthcare professionals, an HHS source tells HealthcareInfoSecurity. In addition, the letter was disseminated via the listservs of both OCR and the Substance Abuse and Mental Health Services Administration. Those listservs collectively reach about 100,000 individuals and organizations, according to the source.

Rodriguez notes in the letter: "In light of recent tragic and horrific events in our nation, including the mass shootings in Newtown, Conn., and Aurora, Colo., I wanted to take this opportunity to ensure that you are aware that the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule does not prevent your ability to disclose necessary information about a patient to law enforcement, family members of the patient, or other persons, when you believe the patient presents a serious danger to himself or other people."

In a statement, the White House explains its reason for having HHS issue the HIPAA letter.

"Doctors and other mental health professionals play an important role in protecting the safety of their patients and the broader community by reporting direct and credible threats of violence to the authorities," the statement notes. "But there is public confusion about whether federal law prohibits such reports about threats of violence. ... No federal law prohibits these reports in any way."

Privacy Issues

Patient privacy advocate Deborah Peel, M.D., a practicing psychiatrist and psychoanalyst, says the HHS letter serves as a reminder to healthcare professionals that "HIPAA is not a barricade to disclosure," including reporting potentially dangerous patients to authorities.

Mental health professionals are sometimes put in "tricky" positions where they need to make judgments on whether patients poses a danger to themselves or others, and whether the danger is imminent, she explains. "Sometimes it's not crystal clear," says Peel, founder of the advocacy group Patient Privacy Rights.

Assessing the danger and deciding whether a situation needs to be communicated to authorities is an important role for mental health professionals, she stresses.

But Peel is concerned that reporting dangerous patients to authorities could raise privacy issues if information about a patient is included in a gun control or other database, depending on who has access to the data.

"It's also about trust - you also don't want fear about showing up in database to deter patients who need treatment the most from seeking it," she says.

Talking About Guns

The president's gun control plan also aims to clarify whether healthcare providers are prohibited from speaking to patients about guns as a result of the healthcare reform law.

The White House statement notes: "Some have incorrectly claimed that language in the Affordable Care Act prohibits doctors from asking their patients about guns and gun safety. Medical groups also continue to fight against state laws attempting to ban doctors from asking these questions. The administration will issue guidance clarifying that the Affordable Care Act does not prohibit or otherwise regulate communication between doctors and patients, including about firearms."

Also this week, New York Gov. Andrew Cuomo signed into law gun control legislation that the state portrays as the toughest in the nation. The Secure Ammunition and Firearms Enforcement Act includes a "mental health alert" provision. Under that rule, mental health professionals will be required to report to local mental health officials when there is reason to believe a patient is likely to engage in conduct that will cause serious harm to himself or others.

Under the New York law, this reported information will be cross-checked against "the new comprehensive and regularly updated gun registration database." If the patient possesses a gun, the license will be suspended and law enforcement will be authorized to seize the individual's firearm.