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The fight to protect medical record confidentiality is complicated by the demands of managed care companies and law enforcement, who say they have legitimate reasons to violate that confidentiality under some circumstances.
But some pending legislative proposals would provide police and others with far too much access to confidential records, according to APA and other privacy advocates. The potential for abuse was highlighted by a recent incident involving a major Washington, D.C.-area police department, only the latest of a number of disturbing incidents involving law enforcement and medical records, according to APA's Division of Government Relations.
In August, Fairfax County, Va., police seized, and then returned, all medical records from the Fairfax Methadone Treatment Clinic while investigating a car theft that occurred in an office complex several hundred yards from the clinic. Fairfax police detective Garrett Broderick obtained a search warrant from a county magistrate based on his stated belief that narcotics addicts were prone to steal to support their addictions.
The affidavit justified the request for a warrant on grounds that "it is common for people who have addictions to various narcotics" to commit "these kinds of criminal activities to support" their drug addiction.
According to stories in the August 28 and September 1 Washington Post verified by Psychiatric News, police were seeking an unknown man who fled in a stolen car after stealing a $10,000 ring from a local jewelry store. Police learned that the car had been stolen from a parking garage near the clinic. Based only on detective Broderick's generalized suspicion of recovering addicts, Magistrate James McCarthy issued a warrant permitting Broderick to seize all the clinic's medical records.
Police returned the records only after the Post story generated broad condemnation from privacy advocates and law professors as well as prosecutors from other jurisdictions.
In this case, the police and magistrates "apparently did not even follow current legal restrictions regarding medical record disclosure," said William Bruno, J.D., an associate director in APA's Division of Government Relations. "Nevertheless, this incident shows that the 'Let's just trust the police' attitude embodied in several confidentiality proposals that could become law are wholly inadequate. Nor is this the only abuse that has occurred by law enforcement officials."
Further, said Bruno, "privacy protection measures stronger than current law are urgently needed, such as those contained in Senator [Patrick] Leahy's bill, S. 1368." Leahy is a Democrat from Vermont.
Despite their return of the records, law enforcement officials defended the initial seizure in an interview with Psychiatric News.
A review of the matter found that detective Broderick "acted in good faith" but may not have "used the best judgment," said Fairfax County Police spokesman Lt. Michael Fish. The records were returned, and police made no use of the records, he said.
Karen Decker, J.D., chief magistrate for the 19th Judicial District of Virginia, where the warrant was granted, said magistrate McCarthy also "acted in good faith." Decker said she could make no further comment.
While this incident involves constitutional issues, it shows that "we need confidentiality protections stronger than we have and that do not just depend on the good will of the police and the legal system in how they operate," said Lawrence Tripp, M.D., vice chair of APA's Committee on Confidentiality. Several of the proposed federal confidentiality bills say, in essence, " 'Trust us; we'll use any information we take in a totally appropriate way,' " Tripp added. "And that's just more than the system can reasonably be trusted to do."
Whether those demanding access come from law enforcement, managed care, or the federal government, "confidential [medical] information should not be released without the consent of the patient," said Tripp. If there is to be an exception, it will have to be narrowly drawn and tightly circumscribed, he added.
Kent Willis, J.D., is the executive director of the Virginia chapter of the American Civil Liberties Union (ACLU). "They're not clear of this yet," Willis told Psychiatric News. Although the police have returned the records, the ACLU is still weighing legal action, he added. It would be possible to seek either "a declaratory statement saying what [police] did was wrong" or an injunction specifically barring police from repeating the seizure.
"Most people understand that if any information is to be private, it is information between a doctor and a patient," said Willis. "This is not only a legal concept, but one of the best understood concepts of privacy among all citizens. Any legislation dealing with medical records should be offering, if anything, greater protections than we currently have."
Police "need to be taught not to even ask for warrants of this kind," said Willis. "For an aggressive officer, that's a hard lesson to learn. The police's problem here was they didn't particularize the warrant as they should have, but almost as bad was that they used stereotyping as a rationale for obtaining the warrant. It's almost as if they were saying they should be able to get a warrant to search the homes of all poor people whenever a bank has been robbed," since poor people need money. "This was a witch-hunt."
It was clear that the facts in this case "did not justify this search warrant," said Eric Sterling, J.D., president of the Washington, D.C.-based Criminal Justice Policy Foundation. That both police and the magistrate cited "acting in good faith" as a justification for this action shows that it is not enough to rely on the good will of law enforcement.
The words of the Fourth Amendment specifically require a particular description of the person or things to be seized, Sterling continued. "In order to protect all of our legitimate privacy interests, we have to protect the privacy interests of psychiatric patients and drug addicts."-R.B.K.