Make the EHR a safe harbor from criminal prosecution

The governor of Vermont, Peter Shumlin, devoted all of his annual speech to the problem of drug addiction. On the national news, Shumlin points out the link between prescription painkillers and death, and he calls for treating opiate addiction as a medical problem no different than cancer. The White House praised the governor’s position.

Meanwhile in another part of Washington, I’m involved in the federal effort to link the law enforcement Prescription Drug Monitoring Program databases to the health records physicians use, and to link the databases across state lines.

The unintended consequences of criminalizing addiction and driving medical problems underground need to be considered here as well.

Physician-patient confidentiality is important to public health, and networked electronic health records have both individual privacy and public health consequences. Privacy is essential in infectious disease testing, domestic violence, mental health, adolescent, reproductive, and addiction medicine. Subjecting clinical encounters to law enforcement surveillance beyond the physician’s discretion is life-threatening.

Well-meaning people are now working to link PDMP databases to EHRs and across state lines. The evidence to justify the coerced crossing of the criminal — medical boundary is anecdotal findings in pilot studies that more physicians are in a position to uncover addiction and offer treatment.

The other goal is to reduce illegal diversion of prescription drugs by both physicians and patients. What could possibly go wrong?

As Governor Shumlin points out, driving prescription painkiller patients to illegal heroin kills people from all socioeconomic strata. The diversion of prescription drugs to street abuse also kills people through addiction. Death from drug addiction is the sum total of heroin and prescription drug overdose and the scientific studies of how the two are linked have not been done.

What we do know after 40 years of the war on drugs is that a criminal approach to addiction is expensive and ineffective. We need to treat addiction, not drive it underground.

To my colleagues and public servants working to link prescription drug surveillance to medical records and health information exchange, I offer the following suggestion: let’s make the electronic health record a safe harbor from criminal prosecution. My health record should never be used as probable cause by law enforcement and it should never be given as evidence in criminal proceedings. The decriminalization of health records will underscore that drug abuse is a medical problem and it needs to be solved by medical professionals, not police, lawyers, and prisons.

Adrian Gropper is CEO, This article originally appeared on The Health Care Blog.

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  • whoknows

    this is getting out there. How about the patients who have pain that is underdiagnosed and treated that end up overdosing on pills from pain? that piece needs a lot of work. this path described in this article is just intrusive and crazy.IMHO.

  • MannyHMo

    It’s naivete to think that our medical record will remain private. It will always be available either the proper and legal way or via illegal disclosure.
    I wonder if using an assumed name or a unique identifier might be the way to go. The psychiatric records of people involved in the mass shooting are revealed publicly.

  • BobTheTruth39

    The Rubicon has already been crossed with the HITECH and PPACA acts, and there is no going back. Talking to the doctor or allowing medical testing is now the same as talking directly to a Federal prosecutor. Anything you say or tests you allow can and will be used against you in a kangaroo court.

    It’s time patients were given Miranda warnings before exams.

    NOTE: The NSA is monitoring this combox and is actively logging who comments here. The NSA also traces the commentators back to their computers and knows their real name, address, phone, etc. You have been warned.

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