Let’s Decriminalize Our Health Records

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, MD is Chief Technical Officer of Patient Privacy Rights and participates in Blue Button+, Direct secure messaging governance efforts and the evolution of patient-directed health information exchange.

12 replies »

  1. Not all docs are on the right side of the drug issue.

    I recall the case of four family practitioners who were arrested in association with the deaths of 27 drug-related deaths of their patients.


    As well as a physician caught selling narcotics to an undercover police officer in California.


    I realize these are simply two cases, but there are many more out there, I am sure.

    And there are also docs out there who are reportedly getting cash kickbacks for urine drug testing their patients.


  2. “The prevalence of drug abuse is so pervasive”

    And the severity upshot of MOST of this prevalence is nil. Tail Wags Dog big-time where “drug abuse” is concerned.

  3. As a retired mental health care provider I have been very concerned about implementation of the use of electronic medical records. To my mind there is no possible way to protect individual privacy using this form of documentation.
    We have just witnessed the NSA debacle, and in the public realm the hacking of over 70 million Target Store accounts, with names and social security numbers.
    A database holding of all of the health concerns of citizens stands no chance of remaining private in the long run (or even possibly the short run). The nefarious and injurious uses to which such a database could be used are limited only by imagination.
    So, Paul, I too ask: Is there a full discussion of this and am I missing it?

  4. This is where society is taking us. The prevalence of drug abuse is so pervasive that docs are becoming more like DEA agents than physicians.

  5. Here is a personal anecdote re surveillance.

    Mainly for international travel…and once a month otherwise….I use temazpam for a sleep aid. Have had the script renewed every other year on annual physical exam for about 15 years. This year the primary care doc said I have to have a blood test….to confirm I am using the med and not selling it. I protested that that is crazy…as a grey haired happily married businessman I hardly fit any profile…..he said his records are audited and his practice might get a negative mark if the blood test is not on record…..he relented, but said when he retires the younger docs in his group might be more insistent.

    Is this representative of where EHRs’ are taking us?

  6. Documentation of a physician-patient encounter or other service is necessary to regulate and compensate. Legal liability is the price doctors pay to be self-regulating as a profession. The alternative to professional regulation is bureaucratic regulation via some agency like we regulate banks or factories.

    But I’m talking about surveillance. PDMPs are a form of surveillance. The goal of introducing surveillance into the physician-patient encounter should be to improve the opportunities for treatment not punishment.

  7. Any patient engaged in any illegal or illicit activity of any sort would be ill advised to tell his or her physician about it without assurances the provider will keep it out of the EHR….placing the provider in a severe bind of whether to comply with EHR rules or to violate them by keeping traditional paper notes (or just memory).

    My impression is that the privacy, trust and communications issues of EHR are given too little attention. The massive investment in the forced adoption of EHRs’ means that EHR companies and health system administrators have invested too much in this wild leap of faith to want to acknowledge the negative impact on the open and trusting relationship between patient and doctor. Or has been a full discussion of this and I have missed it? If so, please point out where this has been intelligently debated.

  8. So the problem here is a basic one of precedent. No matter how noble the cause, electronic medical records are a form of documentation. If you exempt patients, why not exempt doctors from the legal consequences of an electronic medical record being used against them? I guarantee you’ll get very different picture when you open almost any electronic medical record a year from now. And if you’re going that route, why not exempt vendors from being held accountable for basic safety and product quality standards? Not sure what the answer is, but I seriously doubt it’s hitting the pause switch on the law.