How the Docs vs. Glocks ruling affects physicians

The conversations doctors are allowed to have with their patients regarding guns and other firearms, if any, are the central part of a new ruling overturning most aspects of a highly controversial law that has undergone several appeals and reversals since its inception in 2011.

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The law, called the Firearms Owners’ Privacy Policy Act, was ruled unconstitutional by the U.S. Circuit Court of Appeals for the 11th Circuit on Feb. 16, 2017. According to attorney Janet Bastawros, owner of The Law Office of Janet Bastwaros, “the U.S. 11th Circuit Court of Appeals recent ruling was based on the decision that the law violated medical professionals’ constitutional right to free speech. In other words, medical professionals no longer have to fear sanctions or potentially losing their license for having potentially lifesaving conversations with their patients about gun safety and providing medical advice.”

The law states that healthcare providers and facilities could not ask about whether a patient owns firearms unless the provider believes that this particular information is relevant to patient safety. It also stated that healthcare providers could not put information about patient gun ownership or firearm use in the patient record, and that providers cannot deny service to patients who own guns. 

The most recent ruling overturned the law, allowing physicians to ask about gun ownership, to advise patients about gun safety and to document information, but the provision that health care professionals cannot refuse care to gun owners was upheld.

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The Firearms Owners' Privacy Act applied to physicians, as well as other healthcare providers and promised hefty financial and professional penalties for violations.

The issues

The American Medical Association (AMA) has praised the recent court ruling, stating that physician discussion of firearms is an important patient safety issue. Several other major medical organizations joined the AMA in urging the U.S. Court of Appeals for the 11th Circuit to uphold a lower court decision that ruled the law unconstitutional.

Among the issues that have been brought up is the fact that there is a grey area when it comes to deciding if a conversation about guns is relevant to the care and safety of a patient.

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Pediatricians, for example are concerned about accidental injury from firearms, while psychiatrists’ patients are at risk of self-harm. But it is difficult to legally define exactly when a physician’s concern should be strong enough to warrant a discussion about firearms.

In the meantime, patients and second amendment rights advocates support the law as a necessary protection for patient rights, arguing that physicians are in a position of power and influence, and thus could pressure patients when asking about personal information, could compel patients to make unwanted decisions if they feel that they are being harassed by their physicians, or could result in physicians rejecting patients who own firearms.

Legal background

This issue was initially brought to the courts as a response to several patient complaints of physician harassment regarding gun ownership and a patient’s report of physician refusal of care because the patient owned a gun.

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In 2011, Florida legislators created the bill¹, which later passed as the Firearms Owners' Privacy Act. The law was overturned in 2012, and then in 2014, a suit² was filed to protect the rights of patients who own firearms.

That suit resulted in a reinstatement of the law, which was overturned again as unconstitutional by the courts in February.

As the law was initiated in response to perceived infringement on gun owners’ rights, Jason Goldman,MD, FACP, who has been involved in the case in Florida as governor of the Florida chapter of the American College of Physicians, explains that the issue has never been about second amendment rights, but rather about first amendment rights.

Goldman emphasizes that free and open communication between doctors and patients is necessary for good patient care, stating “patients should feel comfortable discussing issues with their doctors, while doctors should feel comfortable asking questions of their patients.”

While other states have not passed laws preventing doctors from discussing or recording information about patient gun ownership, a few have made preliminary moves in that direction.

Other states, including Montana, Minnesota and Missouri, have laws that limit the collection of information about firearms. And, as far as the current status of the Florida law-this issue can still go to the U.S. Supreme Court for appeal, and, according to experts in the field who spoke off the record, lawmakers believe that such a step is indeed likely.

References

1.     Bill 790.338 F.S http://www.myfloridahouse.com/Sections/Documents/loaddoc.aspx?FileName=_h0155er.docx&DocumentType=Bill&BillNumber=0155&Session=2011

2.     Harvard Law Review, Wollschlaeger v. Governor of Florida, Jan 12, 2015

http://harvardlawreview.org/2015/01/wollschlaeger-v-governor-of-florida/