Drug cops want open access to your medical records

By Radley Balko

In response to a spike in overdoses on prescription painkillers, and a rash of media scare stories about ADHD drugs like Ritalin and Adderall, a number of politicians, pundits, and public health activists have demanded better monitoring of doctors and patients. The thinking is that by creating databases of patients taking controlled substances, we’ll be able to catch drug-dealing doctors and intervene on behalf of drug addicted patients.

I think many of the reports about accidental addicts and overdose deaths are either exaggerated or don’t tell the whole story, but that’s too much to get into here. (See the series I wrote on this issue for Huffington Post.) But this column by Christopher Moraff in central Pennsylvania’s Patriot-News warns of the consequences letting the government see what medication you’re taking:

With America united in collective outrage over revelations of widespread domestic surveillance by the National Security Agency, another federal branch – the Drug Enforcement Agency – has quietly set about dismantling the Fourth Amendment when it comes to accessing our private medical data.

Last week, the American Civil Liberties Union joined the State of Oregon in federal court in Portland to challenge the DEA’s attempt to use warrantless “administrative subpoenas” to obtain information on patients from the state’s prescription drug monitoring database.

It’s unlikely the plaintiffs will prevail; while Oregon law prohibits state police from digging into patient prescription data without a search warrant, thanks to the gradual erosion of civil liberties under the “war on drugs,” the DEA does not require a court order to request such information in the course of an open investigation.

But at least Oregon is fighting for the privacy rights of its citizens. Pennsylvania, on the other hand, seems intent on giving them away.

Since September, three bills have been introduced in Harrisburg designed to expand the commonwealth’s own prescription monitoring system by establishing a database listing all prescriptions of controlled medications and the identities of the citizens who receive them.

The latest proposal was introduced in November by Sen. Pat Vance, R-Cumberland, and, unlike Oregon, would give state and federal law enforcement officials virtually unimpeded access to the prescription records of millions of Pennsylvanians who take Schedule II drugs.

These include not only narcotic painkillers like hydrocodone, oxycodone and morphine, but drugs like Ritalin and Adderall that are used to treat childhood ADHD.

Reggie Shuford, executive director of the American Civil Liberties Union of Pennsylvania, put it best when he said: “The privacy of the child who breaks his arm on his bike or who takes attention deficit medication is being sacrificed because someone across town is abusing these substances.”

It’s easy to imagine how this could be abused, how patient data could get into the wrong hands. Imagine a law enforcement officer looking for ammunition in a divorce or custody dispute. Or perhaps a politician who takes the wrong position on police pensions or police accountability might see his painkiller scripts leaked to the press. (That sort of retaliation wouldn’t be unheard of.) Moraff points out that Virginia’s prescription database has already been accessed by hackers, who then threatened to release the records of 8 million people.

But Moffat also touches on another, less obvious problem—the chilling effect this will have on doctors. For example, one of the red flags federal investigators look for when looking for doctors to accuse of “drug dealing” is the overall number of prescriptions a given doctor writes for various controlled drugs. That means that as he’s deciding your course of treatment, or whether to prescribe opioids to improve your mother’s quality of life as she’s dying from terminal cancer, he’ll be thinking about how many scripts for those drugs he may have already written for other patients. It’s an intrusion on the doctor-patient relationship, and could influence a doctor’s decisions about a patient’s treatment with factors that have nothing to do what’s best for that particular patient.

This of course is how we fight the drug war. Because some people harm themselves with some drugs, we punish everyone, not only by restricting access to those drugs, but in this particular instance also by eroding privacy protections and trespassing on doctor-patient privilege.