WASHINGTON – Mental health advocates are worried that the privacy of people who have received treatment for their illnesses could be jeopardized by a White House push to expand a database used to run background checks on gun buyers.
President Barack Obama said he wants to see state governments contribute more names of people barred from buying guns to the database, part of a sweeping set of executive actions he announced after a gunman killed 20 children and six adults at Sandy Hook Elementary School in Newtown, Connecticut, in December.
The database, called the National Instant Criminal Background Check System, or NICS, is used by gun dealers to check whether a potential buyer is prohibited from owning a gun.
States are encouraged to report to the database the names of people who are not allowed to buy guns because they have been involuntarily committed to a mental hospital, or have been found to have serious mental illnesses by courts.
Many states do not participate. So the administration is looking at changing a health privacy rule – part of the Health Insurance Portability and Accountability Act (HIPAA) – to remove one potential barrier.
The Health and Human Services Department has not released a detailed proposal outlining possible changes to HIPAA. When it asked for comments on the idea, it was flooded with more than 2,000 letters and e-mails.
Many of the comments were from gun rights advocates, but a surprising number were from mental health professionals and advocates.
Health care professionals are sympathetic to Obama’s goal of reducing gun violence, but worry that the privacy rule proposal could discourage people with mental illness from seeking treatment.
“I think it’s a bad idea. It would really put a chill on people getting services,” said Daniel Fisher, who was treated for schizophrenia decades ago, recovered, and became a well-known psychiatrist and mental health advocate in Massachusetts.
“They find it very scary, the idea of a national database that the government will keep,” Fisher said.
MODEST PROPOSALS
After Newtown, addressing gun violence became one of Obama’s top priorities, but Congress rejected his proposals to restrict certain types of guns and a measure that would have closed a loophole and required checks of the NICS database for more types of sales, such as those that take place at gun shows.
Those measures were fought by gun rights lobbying groups, which said they would infringe on their constitutional rights.
So the administration has been left with a series of smaller steps it can take without congressional approval, such as tweaking the health privacy law to make sure it does not prevent states from reporting names to the NICS database.
In some states, mental health data is stored by hospitals or health-related boards that are covered by the HIPAA law. The administration is looking at amending the privacy rule to give those agencies permission to disclose names to the database.
“This action would eliminate the excuse which is used by legislators and other officials for not reporting information to NICS,” said Lindsay Nichols, an attorney with the Law Center to Prevent Gun Violence, which advocates for tougher gun laws.
Nichols said privacy concerns are unfounded because only a limited amount of information would be disclosed to the database, and would be used only if someone with a severe mental illness who is not allowed to own a gun tried to buy one.
The Obama administration is conscious of the risk of scaring away people from treatment.
“Our actions will be carefully tailored to ensure patient confidentiality as well as public health and safety,” Health and Human Services Secretary Kathleen Sebelius said in April when she asked for comments.
The department is weighing the comments to determine its next steps, said Rachel Seeger, a spokeswoman.
The changes likely will take months to propose and finalize.
FEARS OF DISCLOSURE
The idea of expanding the database comes at a time when the government’s collection of citizens’ phone and internet data is in the headlines, after a former CIA contractor revealed top secret information about surveillance programs.
Mental health advocates worry that somehow, whether intentionally by a hacker or unintentionally through bureaucratic bungling, mental health data in the background check system could be made public.
“I don’t think of myself as at all paranoid about this, but I do think that a lot of people worry that information may not be as secure as we all want to be reassured that it is,” said James Jackson, executive director of Disability Rights New Mexico.
Advocates also argue that the inclusion of mental health data in a criminal database is unfair. Having the data included in the database infers that people with mental illnesses are dangerous and violent, even though the vast majority are not.
“The constant chronic coupling of gun violence with mental illness is just devastating,” said Marilyn Martin, a policy analyst with Access Living, a group that works with people with disabilities in Chicago.
GUN SHOW LOOPHOLE REMAINS
Even if states were to report all their mental health data to the database, as many as 40 percent of guns are bought at gun shows and venues where checking the NICS system is not required.
That means people who want to get guns can still buy them. Adding more records to the ineffective database stands to hurt the privacy of people with mental illness without improving safety, said Mark Heyrman, who teaches mental health law at the University of Chicago Law School.
“It seems particularly stupid to collect data that is going to stigmatize people with mental illnesses when we’re collecting it for no reason,” Heyrman said.
Any suggestion that health information will be shared is upsetting to people who fear they could lose their jobs or their relationships if their illness is disclosed, said Patrick Corrigan, distinguished professor of psychology at the Illinois Institute of Technology.
“It’s going to muddy the relationships that health care providers have with their patients, and dissuade patients even more from going into care,” said Corrigan, an expert on the stigma associated with mental illness.