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Yes, you can ask about gun ownership

August 18, 2014
by Julie Miller
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Freedom of speech or patient privacy?

In most cases, behavioral health providers are legally permitted to ask patients about gun ownership or access to guns for the sake of patient safety—even in Florida where a 2011 piece of gun legislation is still stirring up legal debate.

Florida’s law prohibiting physicians from asking patients about gun ownership was struck down in 2012, but just last month, a federal appeals court voted 2-to-1 to reverse that ruling, making the original law effective once again. There’s a lot of confusion about the exceptions, according to David M. Walsh, healthcare appellate lawyer, Chamblee, Ryan, Kershaw & Anderson, P.C. in Dallas.

“Certainly if a patient is suicidal, there’s a time to ask about a gun,” Walsh tells Behavioral Healthcare. “If you’re worried about the patient being a danger to society, certainly there’s medical reason to ask about it.”

The law makes a distinction that would apply to specific addiction and mental-health treatment situations: If the clinician has a good faith belief that asking about guns is relevant to the patient's medical care or safety, the clinician can ask without legal penalties. Otherwise—if the question is more of a screening tool—clinicians can be fined, cited or possibly even lose their licenses to practice.

“Proponents of the law say it preserves patient privacy and curbs abuse of physician-patient confidentiality,” Walsh says. “When screening patients, many physicians ask about gun ownership, smoking, eating habits, and other variables. Lawyers representing doctors argue that banning such questions infringes upon doctors’ First Amendment rights by threatening them with heavy fines and the loss of their medical licenses if they ask those questions. This case poses interesting constitutional questions and physicians’ attorneys have promised to appeal it further.”

Walsh says the law is more narrow than many physicians believe. For example, a family doctor checking a patient’s cholesterol wouldn’t have a medical reason to ask about gun ownership, so in that case, the question would not be allowed under the Florida law. However, that same family physician treating a patient for depression might need to ask the question if the patient reports suicide ideation. In general, the law prohibits the inquiry when it’s used for screening.

“The secondary concern is that it gets recorded in medical records and with transferability, other doctors know about it, the government knows about it, and suddenly we have a list of people who own guns, which was on the gun lobby’s list of concerns,” Walsh says.

He says nurses, social workers and other clinical professionals working on behalf of a hospital or physician would need to follow the law, too.

Ten other states are considering similar laws:

  • Alabama;
  • Missouri;
  • Nebraska;
  • North Carolina;
  • Ohio;
  • Oklahoma;
  • South Carolina;
  • Tennessee;
  • West Virginia; and
  • Wisconsin.