August 06, 2012 Policy

Opposition to Physician Gag Orders

12A111

American Bar Association

Standing Committee on Gun Violence
Commission on Domestic & Sexual Violence
Standing Committee on Medical Professional Liability
Section of Health Law
Criminal Justice Section

Report to the House of Delegates

Resolution

RESOLVED, That the American Bar Association opposes governmental actions and policies that limit the rights of physicians and other health care providers to inquire of their patients whether they possess guns and how they are secured in the home or to counsel their patients about the dangers of guns in the home and safe practices to avoid those dangers.

Report

Legislation that limits the right of physicians to ask questions of their patients about gun ownership and to counsel patients about the dangers of guns in the home (herein referred to as “physician gag rules”) interferes with the preventive care duties of health care practitioners and violates the First Amendment rights of physicians and their patients.

Health care practitioners play a key role in counseling patients about the risks of injuries and best practices to minimize those risks as part of the practice of preventive care. Preventive care through safety counseling is a pillar of modern medicine, and is vitally important to the health and welfare of patients. It is also the ethical and legal responsibility of physicians. Failure to fulfill these duties results in a breach of the objective standard of care owed to patients.

For medical practitioners to meet their preventive care and safety counseling responsibilities, they must be able to discuss a broad range of topics with their patients related to known risk factors. This unfettered access allows doctors to adequately assess and address these factors with their patients. Risk factors that may be discussed vary depending on the age of the patient, but for adults often include alcohol consumption, illicit drug use, smoking, diet, and exercise; pediatricians often discuss wearing seat belts and bicycle helmets, the potential dangers of backyard swimming pools, and the need to securely store household cleaners and toxins. Firearms in the home are another known risk factor that doctors may choose to discuss with their patients or the parents of young patients. These discussions may focus on the known dangers of keeping guns in the home and the importance of keeping firearms unloaded and stored separately from ammunition to mitigate some of these risks. Safety counseling of this type is recommended by professional medical associations.

If legislation is passed that inhibits a doctor’s ability to discuss such vitally important risk factors with their patients, there are direct First Amendment implications for both health care practitioners and patients, as well as professional constraints on a physician’s ability to meet the objective standard of care owed to their patients.

These are some of the consequences that resulted from Florida’s physician gag rule, which was in place from June 2011 until an injunction stopped enforcement of the law in September 2011, and are likely consequences should other states enact similar gag rules.

I. Importance of Safety Counseling
A crucial element of practicing medicine is the prevention of intentional and unintentional physical injuries. An important tool to achieve this goal is safety counseling. This requires an open dialogue between doctor and patient about all known risk factors, including firearms in the home. As such, many physicians counsel patients about the dangers of guns in the home and the importance of storing firearms unloaded and separately from ammunition. This is important because one-third of U.S. homes with children younger than eighteen have a firearm, and more than 40% of gun-owning households with children store their guns unlocked, with one-quarter of those homes storing them loaded.

Unintentional injury is a health hazard, and is the leading cause of death among children older than one year, adolescents, and young adults. This includes injuries from accidents involving firearms. According to the most recent data sets published by the Centers for Disease Control and Prevention, every day in America, thirty-eight children and teens are injured by firearms and eight are killed by firearms.

Intentional injury is also a major health hazard, with suicide being a particular risk about which physicians counsel patients. Suicide is the third leading cause of death among individuals aged 15 to 24 and is the second leading cause of death for individuals aged 25 to 34. Firearms are frequently used in suicide and suicide attempts, and suicide attempts committed with firearms are fatal more than 90% of the time. Use of a firearm is the most common method of suicide among adult men – 55.7%.

Intentional and unintentional injury related deaths caused by firearms claim more lives than all injury sources except motor vehicles. Because of the dangers firearms pose, safety counseling, which has the potential to reduce injury and save lives, is recommended by professional medical associations. It is also shown to have concrete results. One study showed that after a single instance of verbal counseling, more than 58% of patients reported making changes to their gun storage habits.

The American Academy of Pediatrics recommends that parents of pre-school aged children remove handguns from places where children live and play. They advise parents of adolescents that firearms in the home are particularly dangerous for this age group because of their propensity for impulsive, unplanned use resulting in suicide, homicide, or serious unintentional injuries. If parents choose to keep a firearm in the home, however, they are advised to store it unloaded and separately from ammunition in locked cabinets. The American Medical Association adopted a policy to reduce pediatric firearm morbidity and mortality by encouraging its members to: (a) inquire as to the presence of household firearms as part of childproofing the home; (b) educate patients to the dangers of firearms to children; (c) encourage patients to educate their children and neighbors as to the dangers of firearms; and (d) routinely remind patients to obtain firearm safety locks, to store firearms under lock and key, and to store ammunition separately from firearms.

Safety counseling regarding firearms in the home is also a recommended part of adult medical care. The American Psychiatric Association has recommended that “health professionals and health systems should ask about firearm ownership whenever clinically appropriate in the judgment of the physician.”

II. Florida’s Physician Gag Rule – H.B. 155
Despite the importance of discussing potential risks related to firearms in the home with patients, on June 2, 2011, Governor Rick Scott signed an unprecedented new law in Florida that interfered with health care practitioners' ability to warn patients about the risks posed by firearms and to offer them advice on gun safety.

The Florida law, H.B. 155, subjected health care practitioners to possible sanctions, including fines and loss of their license, if they discussed or recorded information in a patient's chart about firearm safety that a medical board later determined was not "relevant" or was "unnecessarily harassing." The law, however, did not define these terms.
According to the State of Florida’s legislative findings, as summarized by U.S. District Judge Marcia G. Cooke of the U.S. District Court for the Southern District of Florida, the state passed H.B. 155 in reaction to an incident in Ocala, Florida where a physician advised the mother of a minor patient that she had thirty days to find a new pediatrician after she refused to answer questions about firearms in her home. The House of Representatives’ Staff Analysis notes that “Florida law does not contain any provision that prohibits physicians or other medical staff from asking a patient whether he or she owns a firearm or whether there is a firearm in the patient’s home.” The court presumed that H.B. 155 was a means to rectify this perceived gap in Florida law.

Judge Cooke also stated that the legislative debates on the bill revealed that the Florida legislature relied heavily on anecdotal information about physicians asking patients about firearm ownership, physicians misrepresenting that Medicaid would not pay out claims if the patient did not answer questions regarding firearms, or physicians refusing to conduct examinations on patients who refused to answer questions about firearm ownership. Judge Cooke went on to state that it did not appear that the Florida legislature relied on any studies, research, or statistics on physicians’ practices or patients’ experiences on this issue.

III. Litigation Over Florida’s Physician Gag Rule

On June 6, 2011, a lawsuit was filed to strike down and prevent enforcement of H.B. 155. The suit was filed in federal district court in Florida on behalf of the American Academy of Pediatrics, Florida Chapter; American Academy of Family Physicians, Florida Chapter; the American College of Physicians, Florida Chapter; and other individual physicians.
The suit charged that H.B. 155 is unconstitutionally vague and violates the First Amendment to the U.S. Constitution by having a severe chilling effect on confidential, life-saving discussions about the dangers of firearms in the home. The suit sought a permanent injunction to block implementation of the law.

The lawsuit cited the extreme risk posed by firearms and the duty of health care providers to counsel patients about risks to their health and well-being. One-third of U.S. homes with children younger than 18 have a firearm. Children aged 5 to 14 years in the United States are 11 times more likely to be killed accidentally with a gun than similarly aged children in other developed countries. Because of these well-documented risks, pediatricians advise parents to keep guns away from children, secured with gun locks, and stored separately from ammunition. On September 14, 2011, U.S. District Judge Marcia G. Cooke of the U.S. District Court for the Southern District of Florida granted a preliminary injunction against enforcement of H.B. 155, holding that plaintiffs would likely prevail in their facial challenge on grounds that the law was an unconstitutional content-based restriction on speech that specifically targeted firearms issues. Rejecting the State of Florida’s argument, Judge Cooke held that the law “does not implicate rights that the Second Amendment protects.”

Judge Cooke also stated that “the law curtails practitioners’ ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients under certain circumstances. The…Act thus implicates practitioners’ First Amendment rights of free speech. The Act also implicates patients’ freedom to receive information about firearm safety, which the First Amendment protects.”
The Brady Center to Prevent Gun Violence represents plaintiffs as well as the law firms of Ropes and Gray, Astigarraga Davis Mullins & Grossman, and Weisberg and Kainen.

IV. First Amendment Implications Regarding Physician Gag Rules
Health care practitioners have rights under the First Amendment of the U.S. Constitution to engage in open and free exchanges of information and advice with their patients, including about ways to reduce the risks posed by firearms. Gag rules seek to chill this speech and punish health care practitioners for asking questions of, and providing information to, their patients about firearm safety. The First Amendment does not permit such content-based intrusions on speech. Gag rules also deprive patients of their First Amendment right to receive potentially life-saving information regarding safety measures they can take to protect themselves and their families from injury or death.

The practice of medicine requires a free and open exchange of questions, answers, and information between patients and their health care practitioners. For that reason, both state and federal law protect the confidentiality of such conversations. Practitioners must engage in highly personal exchanges with their patients about private, confidential topics, so patients understand the risks to themselves, their families, and their children arising from decisions they make and conduct they engage in. Gag rules directly interfere with, and intrude upon, health care practitioners’ ability to engage fully in these consultations by severely restricting inquiries about a significant and preventable risk to patients.

The First Amendment does not permit individual states to require health care practitioners to conform their communications with their patients to the state’s preferences. By restricting the free and open exchange of information between a physician and patient in this manner, gag rules violate the First and Fourteenth Amendments to the U.S. Constitution.

V. Second Amendment Implications Regarding Physician Gag Rules
In District of Columbia v. Heller, the Supreme Court ruled, in a 5-4 decision, that the Second Amendment to the U.S. Constitution guarantees a limited right to possess handguns in the home for self-defense. Two years later, in McDonald v. City of Chicago, the Court, by the same 5-4 majority, held this right applicable to state and local laws through the Due Process Clause of the Fourteenth Amendment.

This Second Amendment right to possess handguns for self-defense, however, is not implicated by physicians who counsel their patients about the dangers of guns in the home. As Judge Cooke stated, “A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect nor interfere with the patient’s right to continue to own, possess, or use firearms.” In this context, it is worth noting that the Heller majority itself made it clear that its analysis of the right does not “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” This language indicates that even laws requiring that patients follow the advice of their physicians about safe storage of firearms would not violate the Second Amendment.

The provision of safety counseling by physicians, who are private, not governmental actors, to patients who are entirely free to ignore the physicians’ advice, raises no serious Second Amendment issue. Nor should state gag rule legislation be viewed as necessary to vindicate the right recognized in Heller and McDonald.

For these reasons, the ABA opposes physician gag rule legislation.

Respectfully submitted,

The Honorable William D. Missouri
Chair, ABA Standing Committee on Gun Violence
August 2012