Can Your Doctor Ask About Guns? 11th Cir. Says No.

Finding that the law in question was a “legitimate regulation of professional conduct,” a Florida restriction on physician inquiry and record-keeping in regard to patient’s gun ownership and use was upheld by the 11th Circuit. While the case turned on the First Amendment and how it applies to physician’s speech, the practical implications it could have for health care providers could be far-reaching.

Florida’s Firearm Owners Privacy Act

The Act that was the basis of the 11th circuit ruling was the Florida’s Firearm Owners Privacy Act, which was signed into law by Governor Rick Scott in 2011. Specifically, the Act states that “health care practitioners and facilities…‘may not intentionally enter’ information concerning a patient’s ownership of firearms into the patient’s medical records that the practitioner knows is ‘not relevant to the patient’s medical care or safety, or the safety of others,” and should “refrain from inquiring as to whether a patient or his or her family owns firearms, unless the practitioner or facility believes in good faith that the ‘information is relevant to the patient’s medical care or safety, or the safety of others.”

District Court

In September of 2011, the district court in Florida preliminarily enjoined the Act and, then subsequently, in June of 2012, the court permanently enjoined the “enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act.” More particularly, the district court found that the law imposed a “content-based restriction on practitioners’ speech on the subject of firearms.” Further, in terms of the state’s interest in protecting individuals’ Second Amendment right to bear arms, the court determined that “such a right is ‘irrelevant’ to the Act and therefore is not ‘a legitimate or compelling interest for it.”

11th Circuit

Reversing the district court’s decision, the 11th Circuit acknowledged that the Act “recognizes that when a patient enters a physician’s examination room, the patient is in a position of relative powerlessness.” In that light, the 11th Circuit found that the Act is a “legitimate regulation of professional conduct.” Contrary to what the district court found, this court determined that any restraints on practitioners’ speech caused by the limitations adopted by the Act were incidental. The court likened the limitations in the Florida act to other restraints imposed on physician’s by state law: “It is uncontroversial that a state may police the boundaries of good medical practice by routinely subjecting physicians to malpractice liability or administrative disciple for all manner of activity that the state deems bad medicine, much of which necessarily involves physicians speaking to patients.” The court founds that the analysis regarding the physicians’ inquiry and recordkeeping regarding patients’ gun ownership should be conceptualized in the same way. “Although the Act singles out a particular subset of physician activity as a trigger for discipline, this does little to alter the analysis.”

Response

Since the 11th Circuit’s decision was published on July 25, 2014, physician groups have spoken out in opposition to the ruling. The American Academy of Pediatrics (AAP), for example, openly condemned the ruling, labeling the decision “dangerous” and asserting that it “gives state legislatures free license to restrict physicians from asking important questions about health and safety that are vital to providing the best medical care to patients.” The AAP also noted the effects that the decision could have, outside of the notion of effective health care practice. “More than 40,000 children are killed by guns every year,” James Perrin, President of the AAP stated, “Parents who own firearms must keep them locked, with the ammunition locked away separately. In this case, a simple conversation can prevent a tragedy.”