Appeals Court: Yes, Doctors can inquire about Firearm ownership

Posted by $ blarman 7 years, 1 month ago to News
128 comments | Share | Flag

Maybe one of our resident lawyers can weigh in here, but it seems to me that the justices in this case were way more concerned about evidence of actual speech rather than the principle that it is none of a doctor's business. I also found the claim that someone can find a different doctor not only insulting, but specious given that the doctors are being pressed by legislators to make their treatment conditional.

My hoping is that this goes to the Supreme Court and gets overturned.
SOURCE URL: https://bearingarms.com/ba-staff/2017/02/17/federal-court-rules-florida-doctors-can-ask-patients-about-guns/


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  • Posted by CircuitGuy 7 years, 1 month ago
    I actually think the 1st Amendment gives anyone the right to ask anything, but you also have the right not to answer.
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    • Posted by strugatsky 7 years, 1 month ago
      This is not a First A issue. When a doctor is directed to ask a certain question and pass the answer up the chain to his government controllers, then that doctor is acting as a surrogate for the government. And the government has no right to ask that question.
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      • Posted by $ CBJ 7 years, 1 month ago
        "When a doctor is directed to ask a certain question and pass the answer up the chain to his government controllers, then that doctor is acting as a surrogate for the government."

        Link?
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        • Posted by strugatsky 7 years, 1 month ago
          The link I provided earlier. Those are instructions from the association to the pediatricians. Read them. That's why FL passed the law preventing the doctors to ask these questions.
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          • Posted by $ CBJ 7 years, 1 month ago
            Please define "instructions", and cite the law that requires pediatricians to follow these instructions, and the penalties for failure to do so.
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            • Posted by strugatsky 7 years, 1 month ago
              Have you read the link provided?
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              • Posted by $ CBJ 7 years, 1 month ago
                Nothing in the linked article mentions "instructions". It's a policy statement by a professional association. You stated that these are instructions from the association to the pediatricians. I do not find this to be the case. Whoever is downvoting my posts is free to continue doing so, but I do not downvote a post just because I disagree with it.
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                • Posted by strugatsky 7 years, 1 month ago
                  I did not downgrade you, but I can see why someone might. I don't think it is an issue of disagreeing with a particular viewpoint; it is more likely a case of seeing your response as defying common sense. Technically, you are correct - the references that I provided are not laws; they are not published by the government directly. But not to see the connection to the government agenda and not to realize that defying those guidelines will jeopardize a doctor's career is defying common sense. At least that's the way I see it.
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                  • Posted by $ CBJ 7 years, 1 month ago
                    I sense a double standard here. You oppose a set of federal “guidelines” that will “jeopardize a doctor's career” if he defies them. Yet you don't apply the same standard to an actual state law that explicitly does the same thing. According the article linked by the O.P., “doctors who violated the law could face professional discipline, a fine or possibly loss of their medical licenses.
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                    • Posted by strugatsky 7 years, 1 month ago
                      My guiding principle is the 10th Amendment, which limits the federal government to enumerated powers. Obamacare and other federal encroachments and outright illegal acts outside of the 10th need to be stopped and rolled back. Some of the encroachments are through the legal system directly, some through other, 5th column, means. The pressure on pediatricians to act as spokespeople against guns is a Regresssive, anti-Constitutional agenda, which has nothing to do with the pediatrician's job or the health care of the children. I support any action to limit the government and the anti-Constitutional agenda. Keep in mind that the Regressive side is not playing by any moral rules; I feel no obligation to handicap ourselves with one-sided rules. It's like the Geneva Convention- it is only applicable when both sides sign up and follow it.
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                      • Posted by $ CBJ 7 years, 1 month ago
                        The Tenth Amendment does not override the First Amendment. It is not upholding the Constitution to nullify one unconstitutional measure with another unconstitutional measure.
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                • Posted by kddr22 7 years, 1 month ago
                  It is not about reporting to the government. I am a pediatrician and it is about screening for risk factors and talk about safety not ownership. I agree
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                  • Posted by strugatsky 7 years, 1 month ago
                    Except that the Association's (and the Obama administration's) narrative is false. To quote: "Physician counseling of parents about firearm safety appears to be effective, but firearm safety education programs directed at children are ineffective." Firearm safety education directed at children is ineffective? Seriously? What are they basing that statement on? NRA's Eddy Eagle has been amazingly effective. My personal experience of educating my two children, starting from age 6 (when they began shooting) has been excellent - they understand the tools, respect them, know how to use them and know when not to use them. Claiming that education is "ineffective" is pure propaganda.
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                    • Posted by kddr22 7 years, 1 month ago
                      from a ped who is in private practice we screen for risk assessment eg do the parents have locks case etc as many parents do not teach the respect.or if teen has access who might be a suicide risk. This is how private peds view the situation in my areas. I grew up with guns and hunting as well and learned the respect aspect first unfortunately many parents do not teach that aspect
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                      • Posted by strugatsky 7 years, 1 month ago
                        I have no doubts that many pediatricians approach this subject with the best intentions and the questions that you listed above are reasonable in some cases (it is amazing how dumb some parents are; some of them are not adults and will never be adults). However, the government agenda has nothing to do with safety, of the parents and the children, that is. Their agenda is something else entirely. In fact, the quote that I have shown, regarding the alleged ineffectiveness of firearms education, is one example of that agenda. Healthcare records, residing on government servers, is a backdoor to gun registration. I sure hope that no one here is so naive as to think that the government has no access to the information on its servers or that the government will ask the patient's or the doctor's permission to use that information.
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                        • Posted by kddr22 7 years, 1 month ago
                          keep in mind that the data on private servers is not sent to the govt. The insurance co may come and and look but most of time all they see is that it was discussed not the specifics
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                          • Posted by strugatsky 7 years, 1 month ago
                            Do you really believe that? OK, let's turn on logic here: The ACA requires doctors to ask gun related questions. The ACA is not concerned with patient safety. Why would the ACA require gun-related information to be collected? If you do, for a moment, believe that child safety is the driving force here, does the ACA require collection of information on patients' bathtubs and pools? (there are many more children drowning than dying due to accidental or suicidal use of guns). All healthcare records pass through government servers (mirrored onto them). Do you really think that the government will ask your permission to use the data that it already has access to? Do you really believe that any of our information is private and cannot and will not be accessed by an interested government entity?
                            Is it not clear that the socialists will use any and all means to push their agenda? When they can con enough people, they pass the laws; when they can't con the people, they wait until their activist judges are in position and then do it through the judiciary; they'll buy votes with millions and millions spent in a small district to set a precedent; lying, cheating and occasional murders to eliminate unwanted people are the tools. And above all else, the total control of the education system is now bearing fruit - well over a 100 million people who can be certified as morons, but who will march, demonstrate, break windows and attack people when given an order. When the Regressives spent as much effort as they did on Obamacare, you know there is an agenda, and it is not for the purpose of helping your grandma to get access to a better doctor.
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                            • Posted by kddr22 7 years, 1 month ago
                              " All healthcare records pass through government servers (mirrored onto them). Do you really think that the government will ask your permission to use the data that it already has access to?" last I checked i do not send any record information outside my enclosed server other than billing which does not indicate what I screen for as I own the practice and it is self contained.
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                              • Posted by strugatsky 7 years, 1 month ago
                                My experience has been with large scale health records, like the VA. There, everything you say is recorded and can be used against you. For a small office, if you pass the information as part of ACA, e.g., bill for any time used for counseling, doesn't that go into the transmitted record? One thing to keep in mind is that the ACA was intended as a form of government control; not all control mechanisms were fully implemented and if it were allowed to fester, it would have metastasized and achieved full control. I think it is an error to look at the ACA and pick some useful parts; the entire device is malignant, intended on destroying whats left of the Constitution.
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                                • Posted by kddr22 7 years, 1 month ago
                                  we do not directly send information to the ACA. The billing for counseling is nonspecific, except BMI/obesity measures which are sent. Not what we say just the %. if someone were to read my note the safety aspect would say" safety information provided guns, household bike helmets etc. ". The only time I would be more specific is if there was a direct risk suicide risk that had to be immediately addressed
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                                  • strugatsky replied 7 years, 1 month ago
                              • Posted by kddr22 7 years, 1 month ago
                                Not disagreeing that that the govt has no business in my exam room but we must be very specific in our discourse of what they are trying to do and sometimes doing vs all the time
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    • Posted by $ Radio_Randy 7 years, 1 month ago
      I have to thank the government for this directive...it gave me a reason to have a discussion with my family about the evils of "volunteering" information to those who have no business with it.
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      • Posted by CircuitGuy 7 years, 1 month ago
        "evils of "volunteering" information"
        Yes. I generally see no advantage to sharing with people what kind of guns I have. I can think of all kinds of disadvantages.
        - Someone wanting to put the blame a crime on me or just harass me could say they saw me threatening someone with a specific gun, and their knowing the right type of gun would make their lie more credible.
        - Someone wanting to attack me would have information I'd rather they not have.
        - Someone might get a notion to steal the guns.
        - Someone could use it to poison the well about me to those who don't like guns.
        I just don't see the upside of sharing weapons info with strangers.
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    • Posted by $ 7 years, 1 month ago
      And that is where these types of initiatives run into problems. There were many under Obamacare attempting to require doctors to ask and placing the reception of care determinant on those answers. Doctors could also alert HHS and others if there were children in the home where firearms were present, etc.
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      • Posted by CircuitGuy 7 years, 1 month ago
        I suspect the standards were like how they ask if you have CO and fire alarms and an extinguisher. I wonder if these requirements applied to private transactions outside of a ACA-compliant plan.

        It doesn't ring true to me that there was any conspiracy to harass people about their guns, but given how much the gov't dicks with the healthcare market; anything's possible.

        Much of what they did was geared at making the healthcare market into a "system" that protects citizens as if they were children. I know a child of dual alcoholic parents who was grateful when the gov't treated his parents like children. I do not agree with gov't acting as a parent, but it's definitely not as simple as all gov't paternalism always being a ploy. I'm for less paternalism and letting people rise to the occasion. It's not simple issue.

        I would obviously be against any ploy to harass people about the guns, but I don't buy it. I think they're trying to manage all aspects of troubled people's lives, and that's the problem.
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        • Posted by $ 7 years, 1 month ago
          "I think they're trying to manage all aspects of troubled people's lives, and that's the problem."

          Yes, it is. Because that is when people lose their freedom. And that is what is at stake in this issue: the loss of freedom.
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        • Posted by Temlakos 7 years, 1 month ago
          Oh, I buy it. Barack Obama belonged to that class of politicians seeking to disarm everyone, except for LEO's, active-duty military, VIP's, and their bodyguards.
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  • Posted by $ Olduglycarl 7 years, 1 month ago
    If a doctor asked me about guns, I'd say, Oh, you mean my Sherman Tank?...it's not exactly a concealed carry weapon...

    Seriously, I would hope No one would answer that question...if they do, they are probably sick puppies, or deserve what they get for being so stupid.
    No conversation is "Confidential" anymore in this tattle tale world.
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    • Posted by $ Suzanne43 7 years, 1 month ago
      Like your answer. If my doctor asked me about gun ownership, I'd give him my best elementary school teacher look (believe me I have a good one) and tell him to mind his own business. I think that he'd get the point.
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      • Posted by Temlakos 7 years, 1 month ago
        Actually, I would go out and find another doctor. I wouldn't care to labor under the treatment of a doctor who harbored the slightest question in his mind that I posed a threat to self or others. A doctor in that position has a "duty to warn." I wouldn't care to trigger it.
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        • Posted by strugatsky 7 years, 1 month ago
          I watched my kids' pediatrician carefully when I lived in VA. Any question in that direction would have resulted in a new pediatrician, with the old one knowing why the business was getting lighter. As it turned out, it never happened; whether the doctor was pro-2A or intelligent enough not to touch that subject, I don't know.
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          • Posted by Temlakos 7 years, 1 month ago
            This is Virginia you're talking about. Here in Virginia, gun ownership is entirely lawful.
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            • Posted by strugatsky 7 years, 1 month ago
              Correct, gun ownership is legal, but the anti-Constitutional forces are as active in VA as anywhere else. Look at the ass of a governor that was elected by the Beltway establishment. The order to question parents came through the medical channels, American Academy of Pediatrics being one example (http://pediatrics.aappublications.org.... There are two goals for this - discouraging gun ownership and building a national gun registry, with the health records acting as a conduit. Surely, you don't believe that your computerized health records, which are transmitted nationally and which reside on multiple servers, including government owned, are confidential?
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              • Posted by Temlakos 7 years, 1 month ago
                Yes, I know all about that carpetbagger governor of ours. In the last election, he stuffed absentee ballot kits mailed to Fairfax County residents with Democratic Party campaign material. But in Virginia a governor is not re-eligible, and this year we get to elect a replacement, so it's too late in the "season" to remove him on impeachment.
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  • Posted by $ Abaco 7 years, 1 month ago
    You must understand that the government sees "health care" only as a way to control you. They have completely bastardized the health care industry. I know - I work in it. It's a f&^*ing mess.
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    • Posted by Temlakos 7 years, 1 month ago
      What we need, is a registry of alternative practitioners that don't answer to any Boards of Medical Examiners.
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      • Posted by $ 7 years, 1 month ago
        It used to be that you didn't have to get a government license to practice medicine. You showed your certificate of graduation and then served people well, who in turn told other people about you. I wouldn't mind quite so much if the Board was private, but having the Government run the thing is controlling.
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        • Posted by Temlakos 7 years, 1 month ago
          I don't believe Galt's Gulch had a Board of Medical Examiners. It had only a Committee of Safety, and I suspect they recognized Thomas Hendrix, M.D., as eminently qualified without requiring him to take "Boards" or any such thing.
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  • Posted by Temlakos 7 years, 1 month ago
    I'm not a lawyer, either. But I am a Constitutional activist. And I say the Eleventh Circuit (hearing the case en banc) ignored the central issue in this matter.

    At issue was not whether a given doctor may inquire into such matters, but whether said doctor would report the answers to higher authority. Most jurisdictions recognize and prescribe a psychiatrist's duty to warn higher authority if they have a patient who, in their considered opinion, poses a threat to self or others. I believe, and I'm sure I'm on solid ground, that Barack Obama, who promulgated the idea of doctors inquiring about weapons, sought to impress upon doctors the notion that the mere possession of weapons other than kitchen implements and hand or power tools made the possessor ipso facto a threat to self and others. It would then logically follow that the doctor would have a duty to report to higher authority who among his patients kept or bore weapons, and what kinds. That way lies the registry of weapons, the first essential step toward their confiscation.
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  • Posted by RobertFl 7 years, 1 month ago
    They can ask anything. You don't have to answer. You can even lie, provided there's no law against that. If that happens, then there's a problem.
    Why would a doctor engage in such a conversion to begin with? Does it sort of start out like the Birds and Bees talk, "Have you considered protection when polishing your pistol".
    How does that work?
    I wouldn't be pop-off at the doctor, I wouldn't tell him to mind his business. Just answer it, "no, I have no guns", "or what an odd question - why do you ask?" - now you have him answering questions :-)
    Especially, if them asking is because of Gov't demand for statistics - which would be the bigger concern of mine. Lying is legal unless under oath.
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  • Posted by strugatsky 7 years, 1 month ago
    I have just posted the same in response to CircuitGuy, but I see this issue popping up in many responses here - this is not a First Amendment issue. When a doctor is directed to ask a certain question and pass the answer up the chain to his government controllers, then that doctor is acting as a surrogate for the government. And the government has no right to ask that question. The 1st A exists to protect the rights of the people to speak as they wish, not for the government to interrogate the people.
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    • Posted by $ CBJ 7 years, 1 month ago
      Can you cite a state or local law that requires a doctor to do this? It would be a major breach of doctor-patient confidentiality, and I would expect the gun lobby to be seriously up in arms about it (pun intended).

      The court case cited by the O.P. was about a law forbidding doctors from discussing guns, not a law requiring them to do so and to report their findings to the government.
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      • Posted by strugatsky 7 years, 1 month ago
        Here's one reference: http://pediatrics.aappublications.org...
        to quote: "Physician counseling of parents about firearm safety appears to be effective, but firearm safety education programs directed at children are ineffective." Besides the above statement being false, this is one example of the direction given to the pediatricians. One can make an argument that the direction is from a "professional" organization, not the government itself. Of course, one must be very naive to think so, as the data that the pediatrician enters into the health records is now accessible government-wide. There are other references, which would simply require more time to look up, but they are there and the ends of these threads all go up to the Obama administration.
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        • Posted by $ CBJ 7 years, 1 month ago
          Wait a minute. Your previous post said this was not a First Amendment question, on the basis that “a doctor is directed to ask a certain question and pass the answer up the chain to his government controllers.” Now you’re citing the guidelines of the American Academy of Pediatrics, not any law. Even if the doctor asks questions about guns and enters the answers into a patient’s medical records, you have provided no evidence that the doctor is required to “pass the answer up the chain to his government controllers.” Please provide such evidence, if it in fact exists.
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          • Posted by strugatsky 7 years, 1 month ago
            Help me understand your point here. You do acknowledge that the doctor is directed to ask the question? Directed by the semi-private American Academy of Pediatrics. Do I need to do the research to demonstrate that that organization is very much anti-2nd Amendment and has Obama administration ties, or is that connection clear enough? Now, when the data is entered into the health records, do you understand that it is available to multiple government organizations, some not necessarily connected with healthcare? Is the push by the American Academy of Pediatrics to influence parents not to have guns not clear? Is it not obvious that the records are very likely to migrate into a gun registry? The Obama administration ruling to take away gun rights from a large number of older veterans using the VA Healthcare system is not an indication of the overall direction? I do agree that this was a voluntary order, but that was just a tip; the shafting was to follow. That's why the Regressives are so upset - they thought that they were in permanently, but apparently just the taste of the tip was enough to end this rape.
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            • Posted by $ CBJ 7 years, 1 month ago
              The word “directed” has a specific meaning, one that is fundamentally different from the meaning of “encouraged” or “urged”. When discussing political and legal issues on this site, that distinction is important. Many people reading your post will be encouraged to believe that the government requires physicians to ask that question and proactively report all answers to a government agency. I don’t see any evidence that this is the case, and you have not provided any example of such a requirement, which is all that I requested. And health records being potentially “available” to government organizations is not the same thing as a database or registry maintained by a physician’s “government controllers.”
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              • Posted by strugatsky 7 years, 1 month ago
                Meanwhile, I have checked the site for The American College of Physicians and they too are very much anti-Constitutional and provide "guidelines" to their members in that regard. I am using quotes for the term guidelines because, as you have correctly pointed out, it is not a legal requirement, but just one step away. Certain professional associations can put irresistible pressure on their members, whether wrapped in law or "guidelines." Courts acknowledge that certain practices, although not enshrined in law, lead to undesirable effects, as exemplified by private companies making private decisions with respect to hiring of minorities, etc. (the basis of all civil rights laws). I am not ready to dismiss the clear and obvious pressure that these organizations are putting on the pediatrician community to be anti-Constitutional. As to their ties to the Obama administration, I think that the connection is clear and since you have not questioned it, I presume that you agree. It would take some time to make the links, but they're there. In today's world, the links are often obfuscated. As to the database not being confidential - seriously? Snowden's revelations were not enough? Even Trump's advisors' phone calls being recorded and published - should we for a moment even contemplate that our records are and will be private?
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                • Posted by $ CBJ 7 years, 1 month ago
                  The general lack of privacy from government intrusion is a given these days, but it’s still important to make a distinction between pressure from a professional association and what is required by government law. The civil rights laws you cited are actual laws, enforceable by the government. Professional association guidelines are not. Your previous posts did not really make that distinction, though your current post does. The bigger issue in this thread is what is an appropriate action to take at the state level to counteract federal government intrusions into medical privacy. As I said elsewhere, I think a proper solution would be a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion.
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      • Posted by $ 7 years, 1 month ago
        If you read the actual article, it does list how this came to be brought before the court system in the first place. And if you read the article, it is the gun lobby who was objecting to the requirement in the first place.
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        • Posted by $ CBJ 7 years, 1 month ago
          What "requirement" exactly? The gun lobby implied the Florida law was intended to prevent "harassment" of patients by doctors regarding the gun issue. This is an exceptionally weak argument if the supposed "harassment" occurs within the confines of an consensual doctor-patient relationship. It is no reason to restrict a doctor's First Amendment rights.
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          • Posted by $ 7 years, 1 month ago
            It isn't the doctor's rights which are being infringed upon. It is the patients' rights which are under attack. Anti-gun activists want to use the ACA and instruct doctors to require patient disclosure regarding ownership of firearms as part of treatment. The long and the short of it is that unless the person is openly threatening either someone else or themselves, whether or not they own a firearm is irrelevant to their treatment by medical professionals. Doctors are not part of either the judicial or executive branches, yet they are being conscripted to act as extensions of these authorities.

            Proponents of gun control were attempting to use the ACA to create a backdoor gun registry and to use medical practitioners "evaluations" in order to justify firearm confiscation. And all that could happen on the subjective political decision of a bureaucrat or doctor with an agenda without Fourth Amendment due process. In case you were not aware, several states have passed laws that allow for the confiscation of owned firearms from patients deemed mentally or emotionally dangerous without even a court hearing or defense until after the confiscation. In order to get their possessions back, they have to spend their own money to prove they are not a danger - completely the opposite standard of prosecution that is the backbone of the Fifth Amendment.
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            • Posted by $ CBJ 7 years, 1 month ago
              Okay, so “anti-gun activists want to use the ACA and instruct doctors to require patient disclosure regarding ownership of firearms as part of treatment.” Unless there is such a law on the books, what anti-gun activists “want” is irrelevant. And even if there is such a law, it does not justify a state law forbidding a consensual verbal exchange between doctor and patient on the subject of guns, or any other subject. What would be appropriate would be a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion.
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              • Posted by $ 7 years, 1 month ago
                There isn't a legislatively-passed law. What were being used were bureaucratic rules issued under the auspices of the ACA and (as I have explained) were entirely lawful. And part of that "law"/instruction required doctors to ask and then record for review by the Federal Government those answers. For the last time, this isn't a First Amendment issue (as the Justices in this case claim) but one of misuse of information to infringe on Second Amendment rights.

                "What would be appropriate would be a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion."

                I don't disagree in the slightest. If the conversations between doctors and patients were completely and absolutely protected from investigation by the government, I'd totally be with you. The problem is that our current environment just isn't the panacea you are predicating your argument to apply to. We don't disagree - we're just talking about different worlds: you the ideal and me the current.
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                • Posted by $ CBJ 7 years, 1 month ago
                  Re: “this isn't a First Amendment issue (as the Justices in this case claim) but one of misuse of information to infringe on Second Amendment rights.” Trashing one amendment to “protect” another abuses the entire Constitutional process, and creates damaging “unintended consequences.” An example is cited in this excellent article that explores an earlier decision upholding the Florida law that a federal court has now overturned:

                  “And because the panel majority is applying the general First Amendment test, its reasoning would set a precedent for many other restrictions. Indeed, the opinion validates many arguments that are already urged to restrict “hate speech,” justify campus speech codes and the like. Free speech being trumped by the supposed need to protect other constitutional rights — that’s exactly the argument given for restrictions on supposedly bigoted speech, on the theory that bigoted speech undermines the 14th Amendment right to equal protection.”

                  https://www.washingtonpost.com/news/v...
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                • Posted by $ CBJ 7 years, 1 month ago
                  If the conversations between doctors and patients were completely and absolutely protected from investigation by the government, there would not be the need for any state legislation to address the issue. But since state legislation is needed, it is important that such legislation be consistent with the U.S. Constitution, specifically the First Amendment. The fact that the Florida legislation attempted to rectify a federal usurpation is irrelevant as to whether the Florida law itself infringed on free speech, which it did. And its overturning by a federal court occurred in the real world, not the ideal one you suppose I live in.
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  • Posted by $ Abaco 7 years, 1 month ago
    You guys will like this story. My pediatrician was railing on Obamacare a while back (he owns his own practice). He said that in order to treat a baby on medicare (as an example) he is supposed to ask the baby a list of questions - a list provided by the feds. One of the questions is how often the baby is having "relations" (I'm putting it nicely here). He found himself asking a 9-month old baby how often they were copulating and, in disgust, wadded up the paper and threw it in the garbage. At first, I misunderstood his story and asked why he was supposed to ask the parent. "No!", he said. "I'm supposed to ask the baby!" Unbelievable...
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  • Posted by $ CBJ 7 years, 1 month ago
    As long as the doctor-patient relationship is consensual, doctors should be free to talk to their patients about any subject under the sun. And the patient has an equal right when talking to a doctor. No one's rights are violated in either case. If the ruling gets to the Supreme Court I hope it is upheld.
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    • Posted by dave42 7 years, 1 month ago
      The problem isn't doctors discussing firearm ownership issues with patients, the problem is what gets done with that information after the visit is over. Does it get added to your health record? Does it get reported to the state or your health insurance company? Will it be used as part of a 'people with severe psychological problems shouldn't own guns, so let's do a search of health records for firearms owners who have ever been prescribed medication for stress or depression'?

      The problem isn't the doctor-patient conversation, it's what's done with the record afterward.
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      • Posted by $ CBJ 7 years, 1 month ago
        That's a separate issue. The patient is not required to give the doctor any information about his views on guns or whether he owns any. No information to doctor = no information on health record. And as noted above, the patient is free at any time to change doctors.

        It is not good political strategy to "protect" the Second Amendment by trashing the First Amendment.
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        • Posted by $ 7 years, 1 month ago
          Actually, that is part of what some people in government want to require so they can create under-the-radar lists of gun owners.

          And just a clarification, but this isn't trashing the First Amendment at all. It is making divulgence of non-relevant information a precursor to even getting treatment.
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          • Posted by $ CBJ 7 years, 1 month ago
            The patient is not required to give the doctor any information about his views on guns or whether he owns any. If the doctor demands this information as a precursor to treatment, the patient can either (1) find another doctor, or (2) lie to the current doctor to protect his/her privacy. Lying to your doctor is unwise in most situations, but as far as I know it is not a crime.
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            • Posted by $ 7 years, 1 month ago
              It shouldn't be, but in some States and under the ACA, government wants to compel doctors to ask this question and report the answers back to the government. This lawsuit was specifically in regards to this use of the information, because it would penalize doctors who refused to participate AND penalize patients who refused to give the information.
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              • Posted by $ CBJ 7 years, 1 month ago
                The article you cited in the original post said nothing about compelling doctors to ask this question and report the answers back to the government. If so, that's a separate issue from the one being discussed on this thread. And it is not a legitimate exercise of government power to nullify a law requiring a certain type of speech by passing a law forbidding that same type of speech. Both laws violate the First Amendment.
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                • Posted by $ 7 years, 1 month ago
                  The law in question was a pro-active rebuke of what proponents of the ACA were trying to do via bureaucratic rule-making. Remember, under the ACA the Secretary of Health and Human Services was given broad law-making authority with regard to implementation of provisions of the ACA. One of the policies that came up and was employed against veterans and Social Security recipients was firearm confiscation after unsolicited medical reviews of their mental/emotional state. They were never reported as being dangerous to others, yet because they saw a doctor, their rights to own firearms were infringed and their firearms were confiscated. Now they have to pay to defend a right the government never should have infringed in the first place.

                  The bill in question recognized the fact that gun ownership is not a mental condition, nor should it be the role of a medical practitioner to step outside their role to be a government agent. The doctor does not have a "right" to question a patient about anything at all. It isn't protected Speech. This isn't a forum where the listener can just walk away. A patient is a captive audience and to turn a medical visit into a political soapbox is not only inappropriate, it is wrong. It is just as wrong as for a university professor to turn their classroom into a convenient political soapbox.

                  In regards to your assertion that this law constituted a violation of a physician's right of Expression, I would point out that restricting someone from asking an irrelevant question to a captive audience is hardly a restriction of First Amendment rights. What really is at stake is the patient's retention of their Second Amendment rights from attack by a politically motivated doctor - or worse a politically motivated bureaucrat.
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                  • Posted by $ CBJ 7 years, 1 month ago
                    Words have specific meanings, and in most cases a patient is not a “captive audience,” therefore the rest of your argument does not apply. And if a federal law does exist requiring a doctor to ask such questions, having a state law forbidding such questions puts the doctor in an impossible position – he must break either one law or the other. As I mentioned in another post, what is appropriate in this situation is a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion.
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                    • Posted by $ 7 years, 1 month ago
                      "Words have specific meanings, and in most cases a patient is not a “captive audience,” therefore the rest of your argument does not apply."

                      Please look up the legal definition of captive audience. You'll find it is entirely appropriate in this situation. (https://definitions.uslegal.com/c/cap...)

                      "And if a federal law does exist requiring a doctor to ask such questions, having a state law forbidding such questions puts the doctor in an impossible position – he must break either one law or the other. "

                      And that was precisely the point: to force the issue into the Federal Court system because it was a bureaucracy making up rules without the legislature's input. Because of the way the ACA was worded, it was given broad law-making authority. The goal was to have the ACA's rule-making ruled unConstitutional by showing this very conflict in light of Constitutional protections.

                      "what is appropriate in this situation is a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to"

                      What you forget or ignore is the fact that law enforcement and other government agencies are entitled to view patient records on the flimsiest of excuses. If doctor-patient privilege actually existed, you would have a valid argument. Unfortunately for all of us, that privilege doesn't actually exist in practice. And as I have demonstrated in the cases of Veterans and SS recipients, their Second Amendment rights were in fact infringed as a result of their "confidential" patient records being accessed by government bureaucracies to specifically and unConstitutionally target lawful owners of firearms because of political ideology.
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                      • Posted by $ CBJ 7 years, 1 month ago
                        I read the legal definition of “captive audience”, and I don’t think it applies to this situation at all. And if the point of the law was, as you say, to “force the issue into the Federal Court system,” then the law perpetrates a double injustice on physicians: first, by restricting their freedom of speech, and second, by forcing them to become unwilling test cases in a turf war between federal and state bureaucracies. Both the federal and the state governments assume that they have the right to regulate what a doctor can, must or must not say. Both of them are wrong.
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                        • Posted by $ 7 years, 1 month ago
                          "Both of them are wrong."

                          In an ideal world, yes, they are. I agree. But until our doctors aren't beholden to the government for their livelihoods and patient records are truly confidential, we have to deal with the system we have. I'd like nothing more than to get the government out of healthcare entirely, but until that happens, I have to look at things with a jaundiced eye.
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                          • Posted by $ CBJ 7 years, 1 month ago
                            So in the real world, you back a state law that makes doctors even more “beholden to the government for their livelihoods”? According to the article in the O.P., “doctors who violated the law could face professional discipline, a fine or possibly loss of their medical licenses.”
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                            • Posted by $ 7 years, 1 month ago
                              You disagree, but I think that the captive audience doctrine very much applies, and that consideration changes the entire dynamic of the conversation and its analysis. Take the following scenarios:

                              Scenario A: two friends get together at a bar for drinks. One happens to be a doctor and his friend brings up his bad back. The doctor gives his friend some free advice and then the conversation turns to politics, wherein the friend tells his doctor friend about a new Mossberg pump shotgun he just purchased. The doctor says that he can't ethically own firearms because of his commitment to the Hippocratic Oath. The conversation ends there.

                              Scenario B: a patient goes to see a doctor about a bad back. After being taken back to a private examination room, the doctor comes in with a clipboard and starts asking the patient what the problem is. The patient mentions the back problems and the doctor then says "So, do you own any firearms?" The patient looks at the doctor, confused, trying to figure out what owning firearms has to do with his/her bad back. The patient needs some medication or treatment, however, because their bad back is interfering with their ability to hold down a job. They had to wait two weeks just to get this appointment, and now they are uncomfortable about this new line of questioning.

                              Scenario A? First Amendment protection, absolutely. Either has the option to get up and leave at any time with no repercussions.

                              Scenario B? Freedom to leave the situation isn't absolute. The doctor controls the conversation and even failure to answer is an answer in and of itself - therefore captive audience doctrine applies. Coupled with the privacy concerns and the divulgence of this information to third parties, and we compound the dangers inherent in the situation for the arbitrary infringement of rights.
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                              • Posted by $ CBJ 7 years, 1 month ago
                                You haven’t answered the question I posed in my previous post: “Do you back a state law that makes doctors even more ‘beholden to the government for their livelihoods’?”

                                In your Scenario B, the patient also has the option of lying to the doctor or refusing to answer the question. And for an adult, the absence of physical or legal restraint means he is not “captive” in any meaningful sense of the term. The inconvenience of leaving does not equate to captivity.

                                The court that overturned the Florida law is right on point in dismissing the “captive audience” argument (see pages 35-36):

                                “First, ‘the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer’ . . . and where adults are concerned the Supreme Court has never used a vulnerable listener /captive audience rationale to uphold speaker-focused and content-based restrictions on speech . . . Second, doctors and patients undoubtedly engage in some conversations that are difficult and uncomfortable, and the first sentence of § 790.338(4) already gives patients the right to refuse to answer questions about firearm ownership. There is nothing in the record suggesting that patients who are bothered or offended by such questions are psychologically unable to choose another medical provider, just as they are permitted to do if their doctor asks too many questions about private matters like sexual activity, alcohol consumption, or drug use.”

                                http://media.ca11.uscourts.gov/opinio...
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                                • Posted by $ 7 years, 1 month ago
                                  Short answer: I completely disagree with the rationale used by these judges - including their dismissal of the captive audience assessment. That was why I posted this article in the first place. Just because a judge comes to a decision does not mean we can not question this decision - as I do.

                                  Yes, I support this bill because a doctor has no right to ask these questions to their patients in the first place. The First Amendment is not an unlimited right and does not give everyone the right to say anything to anyone at any time. There is an appropriate venue for every conversation. A doctor's office is not the place to play politics.
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                                • Posted by strugatsky 7 years, 1 month ago
                                  The above argument is entirely false because in practice the doctors ask the children about firearms in the house, sometimes without the parent being present. So, yes, this is captive audience.
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                      • Posted by scojohnson 7 years, 1 month ago
                        They already want social security to provide records of disability to the national background check system.

                        So if you are on disability for bipolar disorder or depression you won't be buying a firearm and could easily land on the no-fly list.

                        How many acts of terror from either? Neglible or zero. How many from Islamic fanatics or schizophrenia? Quite a few, but those are political third rails, so we'll make ourselves feel better and go after someone on Lamictal or a CPAP machine or if they served in the military and have PTSD, declare the vet an enemy of the state.

                        It sounds ludicrous, but that is the legislation in place.
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          • Posted by scojohnson 7 years, 1 month ago
            Interesting, I'm in the electronic health industry, the firearms DROS system is paper-based and unusable, the health records systems are being interconnected with HIE's at a state level with provisions for a national system any time there was a desire to do so. Health informatics is very effective with big data, would be easy to report on that.

            Fortunately, my doctor has never asked me in 15 years¦ he was born in Afghanistan though and doesn't like or trust government. My ENT used to be my C5 flight surgeon, he knows better than to ask (or doesn't need to ask).
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      • Posted by skidance 7 years, 1 month ago
        At least sometimes, it goes into those records.

        I HAD a physician who asked such questions, inserted them into my record, and added other things that were either incorrect or misinterpreted. I fired her.
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    • Posted by scojohnson 7 years, 1 month ago
      That's a naive point of view, California already has gun seizure on the books if a doctor, family member, friend, neighbor, or passed off ex girlfriend reports a person as being a danger to themselves or others.

      Sounds good in theory, although with a large collection that wouldn't be the same connotation for me as someone losing a Glock from under the bed. I think about all the looney HOA conflict crap that happens in suburbs and I'm assuming it will go too far. Fortunately I don't have many neighbors either (and all of them own guns).
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      • Posted by $ CBJ 7 years, 1 month ago
        Seriously? Defending freedom of speech is “naïve”? I think it’s naïve to expect that you can fix the consequences of bad legislation with more bad legislation. It’s a never-ending cycle that adds to the overall level of government control.
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        • Posted by scojohnson 7 years, 1 month ago
          You are naive to think that the purpose crafted into the ACA was only for some idiotic purpose of personal safety. The DROS is made up of records that remain on site in the gun dealer's place of business, it's not sent to some government vault. The dems have been demanding a national record system for decades, even though there is zero linkage between lawful ownership and crime, drugs, etc. They simply stuck it in there and it's about to be repealed anyway.

          Never underestimate how information in a medical record could serve some future political purpose.

          I don't pay some doc thousands to tell me that my dozens of firearms are going to somehow be a threat to my health, he can read labs and use the medical decision support system like most of them. I've proven many times that an AR sitting on my back patio didn't jump up and rob a bank while I'm cleaning another one and enjoying an iced tea.

          It's always something with that agenda - it's the full autos, then the AR 15, then the semi auto rifles, then large magazines, even though the FBI database shows that well over 90% of gun crimes are with a handgun and the AR is only a tiny percentage of the remaining 10% where a long gun was even used (hunting rifle, shotguns, etc.)

          Their whole argument is bullshit, start to finish. This is just one more element.

          Here's my argument. Do I get a refund and reimbursement at my professional salary if I get up and walk out because I won't answer and don't care to listen to their first amendment speech? They can say it, I don't have to listen to it. They can do their Truman club dinners too, doesn't mean I would go or make a donation. Freedom of speech doesn't mean the right to an audience, college students need the right to an A as well if they don't want to sit in a chair and be brainwashed either.
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          • Posted by $ CBJ 7 years, 1 month ago
            What’s relevant here is not the anti-gun liberal agenda, it is the content of the state law that was overturned. And that law clearly violates the First Amendment. A proper state response, and one that upholds individual rights, would be a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion.
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            • Posted by scojohnson 7 years, 1 month ago
              Not true, Federal statute specifically prohibits the collection and retention of firearms ownership data beyond the dealer's receipt log (DROS). Asking and recording under directive from some health initiative violates that statute.

              If I go to the doctor with the flu, I don't want to be questioned if I own firearms. It's like going in with a headache and suggest I get an oil change on the Chevy.

              Let's go a step further, my son did his appointments from the time he could drive and I didn't accompany him since about age 12 in the exam. Does the doctor ask junior or daughter if mom and dad keep firearms?

              Any thought that it stays in the doctor's records is preposterous, almost every state has a health information exchange for transfer of records between providers and also stores a centralized copy that can be retrieved by a different doc or for statistical disease research and public health reporting to the CDC. The regs say PII data on stats data has to be omitted, but that isn't a technical limitation, you probably thought your phone records were never looked at either, but oops, the federal government hoovers up 50 terabytes an hour worth.
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              • Posted by $ CBJ 7 years, 1 month ago
                What has any of this to do with whether the state law in question violated the First Amendment, or what a proper state-level response should be?
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        • Posted by $ 7 years, 1 month ago
          Can you explain what part about this is "free speech" and what attempted infringement you see?
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          • Posted by $ CBJ 7 years, 1 month ago
            Free speech includes the right of doctors and patients to discuss any subject they wish to, without government compelling or forbidding the discussion of certain topics. The (pre-Trump) feds evidently want to compel doctors to ask certain questions about guns, while various states want to forbid them from doing so. Both are violations of the First Amendment.
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            • Posted by strugatsky 7 years, 1 month ago
              Sorry, I must disagree with your definition of Free Speech. Free Speech does not mean anywhere at anytime. Federal government workers, for example, are routinely disallowed to discuss certain [hot] topics in their workplace. No one is complaining about free speech violations in those cases, since the argument is that those topics are not relevant to one's job and the person is not being paid to bullshit. Likewise, I pay my doctor for medical expertise, not political opinion.
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              • Posted by $ CBJ 7 years, 1 month ago
                There's a big difference between government censoring speech between two adults in the free marketplace, and government (or any employer) setting out rules governing the conduct of its employees while on the job.
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                • Posted by strugatsky 7 years, 1 month ago
                  No one prevents any doctor from getting on a soap box, or getting on a tv show, or running a blog and speaking his or her mind. But not in a workplace, while on my time and my money, while devoting less useful time to the health issues at hand. Through political activism, Regressives have managed to label gun ownership as a supposed health risk, which has about as much credence as the Global Warming religion. If, for example, the government and professional associations pushed a Scientology agenda, would that be OK, in the name of free speech?
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                  • Posted by $ CBJ 7 years, 1 month ago
                    No, but neither would a state law forbidding a doctor to talk about Scientology.
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                    • Posted by strugatsky 7 years, 1 month ago
                      So what would be your solution if the federal government, exceeding its 10th A limitations, were to direct doctors to discuss Scientology, record your answers and keep it in its database? Oh, and the government were to have a specific bias towards Scientology.
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                      • Posted by $ CBJ 7 years, 1 month ago
                        What will not work is a law similar to Florida’s. Even if upheld by the courts, it exposes the law’s proponents to charges of censorship, causes unfair hardship to doctors (who will now be in danger of losing their licenses regardless of what they do), reinforces the view that governments have the right to regulate the content of speech within the context of free market transactions, and is not an effective means of countering the government’s bias since it closes only one, relatively small avenue of propaganda.

                        And your hypothetical is overstating the actual case, since a professional association’s guidelines do not have the force of law, and the government is not requiring doctors to actually advocate for gun control within the doctor-patient relationship.

                        As to solutions: At the individual level, the patient can either refuse to answer any intrusive questions or lie. The doctor can make it clear that he is bringing up the subject under duress, and do the minimum necessary to satisfy the government’s criteria. At the state level, the legislature can pass a state law upholding the rights of doctors and patients to discuss any subject they mutually agree to, and pledging to protect these rights in court against any federal incursion. This will bypass the disadvantages of the Florida law that was overturned. And at the political level, people can work to elect candidates who oppose the government’s bias. In respect to the gun issue (and several others), this was accomplished with the election of Trump, and may make the whole issue of doctors’ freedom of speech moot.
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                        • Posted by strugatsky 7 years, 1 month ago
                          I agree with you that the FL law, being a reaction, is not the best that one can hope for in an ideal world. Ideally, or as has been practiced in the US for only a few years, the 10th Amendment would have prevented this activism by the federal government (and most other activisms). But we are way past that; FL cannot stop the federal juggernaut, so it reacted. Perhaps going to the Supreme Court and arguing that the ACA is unconstitutional... wait, they tried that already...

                          But the important fact that I've been bringing up and you haven't addressed - there are documented cases where activist doctors have interrogated children on this subject, without the presence of a parent. That makes it a captive audience, for one, but probably also brings up a slew of legal and moral issues, as well. Perhaps a better phrasing would have been a directive to nullify the federal requirements, as opposed to preventing a discussion if both parties are willing to participate. But either way, it would have been challenged by the activists with their unlimited resources.
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                          • Posted by $ CBJ 7 years, 1 month ago
                            A state law forbidding doctors from interrogating children without a parent or guardian present would have a better chance of passing Constitutional muster. As would a state law attempting to nullify the federal requirements. And neither of these laws would impinge on doctors' freedom of speech.
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            • Posted by $ 7 years, 1 month ago
              Actually, the real issue is not the discussion at all, but what happens when the answers to that discussion are recorded. I know you keep focusing on the First Amendment side of the issue, but that is a minor concern compared to how the information is being used after being collected. If the information was never used and never subject to government scrutiny, there wouldn't be a problem at all - most doctors wouldn't ask the question (because it is entirely irrelevant) and most patients wouldn't feel pressured to answer the question. But the reality of the situation is that patients do feel pressured to answer and the information does get misused by bureaucrats with an ideological axe to grind. They hide behind the First Amendment so that they can assault the Second Amendment. The problem is that once the Second Amendment is gone, the First has no protection - and it soon falls as well.
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              • Posted by scojohnson 7 years, 1 month ago
                My point exactly (on the records).

                If we want to stop crime and terrorism, ask if they live in a crime prone neighborhood, are on public assistance, or affiliate with a radical Muslim mosque.
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              • Posted by $ CBJ 7 years, 1 month ago
                Straightforward question: Does the state law that was overturned violate First Amendment protections of freedom of speech? I don't think that is the "minor concern" you make it out to be. And there are state-level remedies available that do not violate the First Amendment.
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                • Posted by $ 7 years, 1 month ago
                  No, it does not. Speech is subject to conditions of appropriate time and place. There is no unlimited right of Expression. Both parties have to agree on that. As a patient, I want my doctor to focus on my health - not my politics.
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  • Posted by strugatsky 7 years, 1 month ago in reply to this comment.
    I applaud the fact that you did not succumb to the anti-Second Amendment disease. Many doctors have, and are using their position as a pulpit. Even if not all cases get recorded and reported, the agenda is political and not related to healthcare (except, obviously, if someone has indications of being suicidal or homicidal). The government puts its tip in, gets the public used to the new norm, and then pushes further. The most villainous part here is when the gun ownership questions are pried from the children, which has been reported to have happened. This has also been happening in schools, with so called counselors asking these questions.
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  • Posted by $ jdg 7 years, 1 month ago
    I would have no problem with doctors asking this question if two conditions were met.

    (1) HIPAA, giving the Feds access to everyone's medical records, were repealed and a privacy right of the consumer in his records were accepted.

    (2) The government stopped intentionally limiting the supply of doctors, so that they would have to compete enough to give consumers power.
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  • Posted by chad 7 years, 1 month ago
    It is a back door way of exerting gun control. Part of the ACA requires that doctors inquire about gun ownership ostensibly to provide safety instructions and protect health. Once established the patient is a gun owner it moves the patient to the bottom of the healthcare list motivating those who require health care to get rid of their guns. Neat trick to make the gun owners the ones who make the decision to rid themselves of their weapons.
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  • Posted by NealS 7 years, 1 month ago
    The real questions here are, "Do you have tell the truth?" And, "What happens if you don't?" "Who are they going to tell?"

    The VA has never asked me, but they do precede every encounter with, "Are you thinking of suicide?" or some form of it. Even when you call them the recorded message asks, and you always get the message, never an actual person. Apparently they have a policy against answering the phone with a live person. Just my two cents worth of complaint.
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  • Posted by $ allosaur 7 years, 1 month ago
    I'm a senior citizen who lives in open carry Alabama and sees my medical doctor every 4 months due to having Type 2 diabetes.
    My MD would have to ask me if I have a firearm because I believe concealed carry is a better strategy partly due to ignoired gun free zones such as banks..
    Me dino would say, "Want to see it? It's in a pocket holster that looks kinda like a wallet when I first pull it out."
    Should I ever have to prove I sold that gun to keep my social security, I'll just trade it in for another that doesn't have a steel grip. The recoil of that Sig somewhat uncomfortably stings that "web" spot between my hand and my thumb.
    I have three other handguns anyhoo (one a smaller caliber pocket pistol) plus a carbine and a shotgun.
    The chiropractor I see once a month does not care. He once told me he sees plenty of guns. I put the little holstered Sig and my spare clip in a small plastic basket with everything else in my pockets before he goes to work on me. .
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  • Posted by $ CBJ 7 years, 1 month ago in reply to this comment.
    I find nothing in the Objectivist theory of rights to support your assertion that “a doctor has no right to ask these questions to their patients in the first place.” Especially since a doctor-patient relationship is consensual. Nor is any government entity entitled to define an “appropriate venue” for a discussion between two voluntarily interacting participants, or threaten removal of a doctor’s license for disobeying such an edict. This is true for the state of Florida as much as for the federal government.

    You can question any judicial decision you please, but until it becomes settled law your opinion and mine are both just that – opinions. And in the philosophical rather than the legal sense, I don’t think an Objectivist argument can be made that an adult patient interacting with his or her doctor is a “captive”.
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    • Posted by $ 7 years, 1 month ago
      "I find nothing in the Objectivist theory of rights to support your assertion..."

      If we lived in a perfect Objectivist world, this wouldn't be an issue. I completely agree. So wave your magic wand and change the world! ;) What we actually live in is a nation that has seen the abuse of patient information to arbitrarily limit the Second Amendment rights of SS recipients and veterans as a matter of fact. That needs to stop and this ruling doesn't help that process.

      "You can question any judicial decision you please, but until it becomes settled law your opinion and mine are both just that – opinions."

      I don't disagree. The reason I posted this is because I believe that the judges came to their conclusion not based on the facts of the case, but based of their own personal bias of interpretation. It wouldn't be the first time such a thing has been posted to this forum. You obviously disagree and have made cogent arguments and I applaud you for that. We disagree in our interpretation of these events. That's life.
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