by By Thomas Tobin*
Lawyers and doctors are both trained to ask their clients uncomfortable questions. We expect that the questions these professionals ask will help them reach more informed determinations for their clients. Lawyer-client and doctor-patient relationships have special legal significance as the open exchange with these professionals often elicits private information that should remain confidential. Unfortunately, a recent Florida law has put lives at risk under the guise of protecting private information.
Signed into Florida law in June 2011 by Governor Rick Scott, the Firearm Owners Privacy Act has worked its way through the courts over the past four years. The Act quickly became so controversial that it has been dubbed the “Docs vs. Glocks” law. Among other things, the Act prohibited healthcare practitioners from making written or oral inquiry into whether a patient owned a firearm unless the health professional had a “good faith” belief that the information was relevant to that patient’s medical care or safety. Healthcare professionals who inquire about gun ownership without such a “good faith” belief risk sanctions, including fines up to $10,000 or the loss of their licenses.
Within a week of the Act’s signing, a group of physicians and other plaintiffs brought suit in the Southern District of Florida arguing that the law restricted physicians’ constitutional rights. The District Court granted enjoinment of the enforcement of the Act, finding a violation of First Amendment rights and that the Act was void for vagueness.
The 11th Circuit disagreed. In the first of its two decisions on the matter, the 11th Circuit found that healthcare professionals have no “generalized interest in being able to speak freely.” The Harvard Law Review recently warned that such an interpretation could lead to “a fundamental alteration of American citizenship.”
The 11th Circuit’s second opinion concerning the law was no less problematic. The majority opinion found that states may define the boundaries of “good medical practice.” With this understanding, the Circuit Court declared that:
“The act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care—especially not when that inquiry or record-keeping constitutes such a substantial intrusion upon patient privacy…” (emphasis added).
The NRA warmly welcomed the 11th Circuit’s “commonsense conclusion.” The NRA’s Chris Cox labeled this case a “common sense ruling.” According to Mr. Cox, it was simply “not a physician’s business” whether a patient owns a firearm. Such assertions stand in stark contrast to the views of the medical community.
Contrary to the 11th Circuit’s view, it is common sense that doctors are well-positioned to know what constitutes “good medical care.” The American Medical Association, the American Academy of Family Physicians, the American College of Physicians, the American College of Emergency Physicians, and the American Academy of Pediatrics each oppose the Florida law. These groups support the ability of healthcare professionals to counsel patients about safer firearm ownership as part of patient care.
Doctors’ conversations with patients can make gun ownership safer. An important aspect of responsible gun ownership is keeping guns locked, unloaded, and out of reach of children. All too often, these practices are not followed and the results can be deadly. In one study, many parents reported unsafe gun storage practices. In talking with their patients about gun storage, doctors can improve safe gun ownership. One research article found a substantial positive impact in storage habits and practices among patients after a brief discussion with a family physician. In that study, those that received a brief conversation with their family physician about gun storage were nearly twice as likely to improve gun safety in their homes compared to the control group.
The 11th Circuit has created dangerous precedent that other states may follow. Fourteen states have considered similar laws. Three states—Montana, Minnesota, and Missouri—have already passed weakened versions.
What can be done? As the American Medical Association’s Journal of Ethics put it, “To protect children, physicians must be able to educate gun-owning parents and guardians about safe gun storage.” One thing is for sure—the 11th Circuit’s recent decision will spawn further debate and deliberation in statehouses and courthouses across the country about what constitutes “good medical care.”
*Thomas Tobin is a student pursuing a joint JD/MPP degree at Harvard Law School and the Kennedy School of Government.