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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 03-24-2013, 9:30 AM
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Default Background checks and current HIPPA laws

Morning all... I watched the very interesting gun law interview on Meet the Press this morning (Bloomberg vs LaPierre) and the discussion following. There was a passing mention of HIPPA law (the privacy law which prevents medical practioneers from giving out information) with respect to background checks.

It raises and interesting question... If the mentally ill (at least those known to be mentally ill via diagnosis by a Psychologist or other MD) are protected by these HIPPA laws, how can that information be provided to DOJ's or the Fed's for use in a background check?

This was 'glossed over' on MTP....

BTW, the NRA via LaPierre ate Bloomberg for breakfast!
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Old 03-24-2013, 10:13 AM
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Because the new law mandating those checks will supercede HIPPA
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Old 03-24-2013, 3:32 PM
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That's HIPAA - Health Information Protection and Accountability Act - and such a law would have to be made to conform, or HIPAA modified.
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Old 03-24-2013, 5:09 PM
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^^^^Yep^^^^
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Old 03-24-2013, 5:33 PM
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I'm assuming that they would make it a mandate to report patients with known mental illness that are gun owners or will be gun owners. Same as with the 5150 patients, even though it violates HIPPA, practitioners are mandated to report persons/patients that are a harm to themselves or others...
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Old 03-24-2013, 5:36 PM
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Originally Posted by Librarian View Post
That's HIPAA - Health Information Protection and Accountability Act - and such a law would have to be made to conform, or HIPAA modified.
Or they just make it so that in order for you to get your background check to get a gun, you have to sign a HIPAA authorization and "allow" them to check your medical history.
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Old 03-24-2013, 6:23 PM
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Originally Posted by snobord99 View Post
Or they just make it so that in order for you to get your background check to get a gun, you have to sign a HIPAA authorization and "allow" them to check your medical history.
You can expect major push back from medical/mental community on this. One reason being it would likely result in significant number of people will not seek treatment or talk to a therapist , out of the fear their name would end up in some Federal database prohibiting them from every owning a firearm. Currently there are over 300 different psychiatric disorders listed in the DSM-IV. Next they will want to know the medical history for any family members living with you if you are buying a gun. What is being lost in these discussions is the concept of knowing right from wrong and being held accountable. How many of these mass killers knew they were doing something wrong? My guess is the all most all of them did.

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Old 03-24-2013, 7:13 PM
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You can expect major push back from medical/mental community on this. One reason being it would likely result in significant number of people will not seek treatment or talk to a therapist , out of the fear their name would end up in some Federal database prohibiting them from every owning a firearm. Currently there are over 300 different psychiatric disorders listed in the DSM-IV. Next they will want to know the medical history for any family members living with you if you are buying a gun. What is being lost in these discussions is the concept of knowing right from wrong and being held accountable. How many of these mass killers knew they were doing something wrong? My guess is the all most all of them did.
This is the danger of background checks, but there is also an obligation by anyone selling a gun to not let the gun get into the hands of a prohibited person. It's a tough one. Right to privacy is not exactly expressed in the Constitution, but it is part of several pieces of the bill of rights (3rd, 4th, 5th, maybe the 9th). I go back and forth on the whole issue.
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Old 03-24-2013, 7:25 PM
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Many docs are leaving/retiring early due to obamacare.
Many top students are going in other directions then medicine.

I don't imagine there will be any uproar in HIPPA changes.

It will just happen as a matter of fact, end of story.
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Old 03-24-2013, 7:26 PM
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Originally Posted by rootuser View Post
This is the danger of background checks, but there is also an obligation by anyone selling a gun to not let the gun get into the hands of a prohibited person. It's a tough one. Right to privacy is not exactly expressed in the Constitution, but it is part of several pieces of the bill of rights (3rd, 4th, 5th, maybe the 9th). I go back and forth on the whole issue.
There are already laws on the books at the Federal level prohibiting felons , those "committed" to a mental institution or adjudicated mentally incompetent & at least a couple of other categories from possessing firearms.
The effort should be to keep the database of prohibited persons current/up to date. Loss of rights, that very well could be a lifetime, should not be without due process.
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Old 03-24-2013, 7:46 PM
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Executive order #2:

"Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background-check system."
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Old 03-24-2013, 8:36 PM
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Originally Posted by snobord99 View Post
Or they just make it so that in order for you to get your background check to get a gun, you have to sign a HIPAA authorization and "allow" them to check your medical history.
That's how it works if you want a pilot medical or need a commercial DOT license in most states.
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Old 03-24-2013, 8:43 PM
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Originally Posted by dasARguy View Post
Morning all... I watched the very interesting gun law interview on Meet the Press this morning (Bloomberg vs LaPierre) and the discussion following. There was a passing mention of HIPPA law (the privacy law which prevents medical practioneers from giving out information) with respect to background checks.

It raises and interesting question... If the mentally ill (at least those known to be mentally ill via diagnosis by a Psychologist or other MD) are protected by these HIPPA laws, how can that information be provided to DOJ's or the Fed's for use in a background check?

This was 'glossed over' on MTP....

BTW, the NRA via LaPierre ate Bloomberg for breakfast!
Absolutely agree, Wayne was excellent this morning on Meet the Press. Excellent plug on the latest gun law enforcement stats, Illinois was dead last in prosecuting gun law violations. Bloomberg looked sad, even saying the AWB wasn't really that big of a deal, but background checks will save the day
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Old 03-24-2013, 9:04 PM
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Originally Posted by enron View Post
That's how it works if you want a pilot medical or need a commercial DOT license in most states.
Pilot or DOT license are not constitutional rights
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Old 03-24-2013, 10:37 PM
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Originally Posted by sakosf View Post
Pilot or DOT license are not constitutional rights
Your point being? You honestly think the fact that the right to bear arms being a constitutional right would have any effect on their decision making process?

And I don't at all agree with your assertion that the medical community would push back. I don't think there will be THAT many people that would avoid treatment for fear of being prohibited, especially considering that, in many instances, we're not talking about voluntary treatment. I also don't think the medical community (for the most part) cares enough about your 2A rights as to act to protect it.
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Old 03-25-2013, 11:42 AM
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the medical "community" generally supports any and all anti gun legislation. not as individuals mind you, but every major medical association. same as l.e..it'll be interesting to see if they favor sacrificing patient privacy to further gun control. my guess is they'll see no problem with it.
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Old 03-25-2013, 8:18 PM
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i dont know. privacy is a pretty big issue in medicine because it is an issue of trust. if a patient doesnt trust their doctor they will not seek the treatment/help they need which will only lead to bigger health problems down the road. there are only very few outstanding instances were privacy can be breached and those are all required by law (child abuse, aids, intent to harm others etc). its not whether the medical community cares about guns or not (doctors dont really make the rules when it comes to these stuff) but whether the law mandates it or if they can get sued and lose for not doing something. in fact im pretty sure for every mandatory case that must be reported there probably was a court case that a doctor got sued and lost before that became the rule.
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Old 03-25-2013, 8:27 PM
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Isn't privacy a right in the CA constitution? How does that square with police currently raiding peoples homes and confiscating firearms for issues associated with treatment by psychiatrists? Wasn't the information about the patient protected by the privacy rule in the constitution?
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Old 03-25-2013, 8:34 PM
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i dont know. privacy is a pretty big issue in medicine because it is an issue of trust. if a patient doesnt trust their doctor they will not seek the treatment/help they need which will only lead to bigger health problems down the road. there are only very few outstanding instances were privacy can be breached and those are all required by law (child abuse, aids, intent to harm others etc). its not whether the medical community cares about guns or not (doctors dont really make the rules when it comes to these stuff) but whether the law mandates it or if they can get sued and lose for not doing something. in fact im pretty sure for every mandatory case that must be reported there probably was a court case that a doctor got sued and lost before that became the rule.
You articulated my point better then I did in my post/s.
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Old 03-25-2013, 8:49 PM
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Originally Posted by enron View Post
That's how it works if you want a pilot medical or need a commercial DOT license in most states.
There is no constitutional right to pilot a plane or drive a truck. Requiring someone to waive the right to privacy in order to exercise a constitutional protected and enumerated right would simply not fly with the Supremes. Heck, I would bet that the 9th Circuit would knock this down!
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Old 03-25-2013, 8:56 PM
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I under if any of those firearms that were lost track of from the "Fast & Furious" program ended up in the hands of a "prohibited" person/s? Wasn't it about 2,000 firearms ?
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Old 03-25-2013, 9:00 PM
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Originally Posted by Scott Connors View Post
There is no constitutional right to pilot a plane or drive a truck. Requiring someone to waive the right to privacy in order to exercise a constitutional protected and enumerated right would simply not fly with the Supremes. Heck, I would bet that the 9th Circuit would knock this down!
I wouldn't jump to this conclusion. You have to consider whether the courts would see it as a reasonable restriction. Your criminal record is subject to privacy protections as well but the Heller court has no problem saying felons may be restricted, which implies that they're OK with this privacy breach as "reasonable."
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Old 03-25-2013, 9:32 PM
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I wouldn't jump to this conclusion. You have to consider whether the courts would see it as a reasonable restriction. Your criminal record is subject to privacy protections as well but the Heller court has no problem saying felons may be restricted, which implies that they're OK with this privacy breach as "reasonable."
Someone with a criminal record has broken law and was given due process. A felon has lost his or her 2nd Amend right because they done something wrong against society......they broke the rules. Keep in mind, it is being argued by some AWB is "reasonable".
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Old 03-25-2013, 9:40 PM
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Interesting,

I wonder what impact the controversial 1967 right to privacy ruling would have on the constitutionality of universal background checks. IANAL but IMO, I would give in to the background checks if it made it unconstitutional to kill your baby.
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Old 03-25-2013, 9:52 PM
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Originally Posted by sakosf View Post
Someone with a criminal record has broken law and was given due process. A felon has lost his or her 2nd Amend right because they done something wrong against society......they broke the rules. Keep in mind, it is being argued by some AWB is "reasonable".
Quite frankly, I don't care if "it is being argued by some AWB is 'reasonable.'" What I care about is what the courts will see as reasonable.

You've confounded someone's loss of rights due to a criminal record and their right to privacy. I'm not arguing whether a felon received due process; I'm pointing out that they also benefit from *some* privacy protections for that criminal record, privacy protections the court seems more than willing to throw out the window. Why are they so willing to throw these protections right out the window? Presumably, to keep firearms out of the hands of dangerous individuals. If the court decides that someone with mental issues is also too dangerous to own a firearm, I'm not at all convinced that the court is going to distinguish between a perceived dangerous felon who has received due process and a perceived dangerous mental patient who hasn't.
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Old 03-25-2013, 10:26 PM
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There is only one way the founding fathers allowed for removal of civil rights. That is through due process, the right to face your accuser and the right to trial by jury. I am against any one person (your doctor,) or act (seeking mental health or taking a drug) to remove your 2nd amendment right. Your doctor should be able to submit you for review, in which case you get to get another doctor and defend yourself in front of a jury of peers. Only then would I be for restricting a person's 2nd amendment right.
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Old 03-25-2013, 10:33 PM
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Quote:
Originally Posted by Scott Connors View Post
There is no constitutional right to pilot a plane or drive a truck. Requiring someone to waive the right to privacy in order to exercise a constitutional protected and enumerated right would simply not fly with the Supremes. Heck, I would bet that the 9th Circuit would knock this down!
There is no constitutional right to keep and bear arms either. There is a constitutional restriction that denies anyone the option to regulate them at all. Any right not enumerated by the Constitution is retained to the States and the people. Absence federal law you have a god given right to pilot a plane or drive a truck. The government is prohibited from passing laws regarding the right to keep and bear arms.

Also note I said denies anyone. Many places the Constitution denotes who is restricted. For example, "CONGRESS shall make no law respecting an establishment of religion..." possibly does not limit the States. The 2nd amendment states "the right of the people to keep and bear arms SHALL NOT BE INFRINGED." By who? By anyone. The State, the Feds, the UN, the "majority." Shall not be infringed.
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Old 03-26-2013, 7:17 AM
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Originally Posted by snobord99 View Post
Quite frankly, I don't care if "it is being argued by some AWB is 'reasonable.'" What I care about is what the courts will see as reasonable.

You've confounded someone's loss of rights due to a criminal record and their right to privacy. I'm not arguing whether a felon received due process; I'm pointing out that they also benefit from *some* privacy protections for that criminal record, privacy protections the court seems more than willing to throw out the window. Why are they so willing to throw these protections right out the window? Presumably, to keep firearms out of the hands of dangerous individuals. If the court decides that someone with mental issues is also too dangerous to own a firearm, I'm not at all convinced that the court is going to distinguish between a perceived dangerous felon who has received due process and a perceived dangerous mental patient who hasn't.
There is already in place a process to deny 2nd Amend rights to a someone with mental issues. Those adjudicated mentally incompetent, those found not guilty by reason of insanity, those involuntary committed to a mental hospital. There is due process involved. What may be lacking & should be addressed is some non reporting of those above mentioned categories to the prohibited database. (NCIS). These people lost their rights because that have done something that indicates they are or very likely a danger to themselves or others and/or mentally incompetent. That is a far cry from everyone being required to let the government access to all your medical records for you to be able to buy a gun.

"The NICS Reporting Improvement Act of 2013 would apply to individuals considered by an adjudicative body, such as a federal court, to be:

* An imminent danger to themselves or others
* Found guilty but mentally ill in a criminal case
* Found not guilty in a criminal case by reason of insanity or mental disease or defect
* Found incompetent to stand trial in a criminal case
* Found not guilty only by reason of lack of mental responsibility under the Uniform Code of Military Justice
* Required involuntary inpatient treatment by a psychiatric hospital
* Required involuntary outpatient treatment by a psychiatric hospital based on a finding that the person is an imminent danger to himself or to others
* Required involuntary commitment to a psychiatric hospital for any reason including drug use"

Last edited by sakosf; 03-26-2013 at 7:53 AM..
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Old 03-26-2013, 9:26 AM
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Originally Posted by sakosf View Post
There is already in place a process to deny 2nd Amend rights to a someone with mental issues. Those adjudicated mentally incompetent, those found not guilty by reason of insanity, those involuntary committed to a mental hospital. There is due process involved. What may be lacking & should be addressed is some non reporting of those above mentioned categories to the prohibited database. (NCIS). These people lost their rights because that have done something that indicates they are or very likely a danger to themselves or others and/or mentally incompetent. That is a far cry from everyone being required to let the government access to all your medical records for you to be able to buy a gun.

"The NICS Reporting Improvement Act of 2013 would apply to individuals considered by an adjudicative body, such as a federal court, to be:

* An imminent danger to themselves or others
* Found guilty but mentally ill in a criminal case
* Found not guilty in a criminal case by reason of insanity or mental disease or defect
* Found incompetent to stand trial in a criminal case
* Found not guilty only by reason of lack of mental responsibility under the Uniform Code of Military Justice
* Required involuntary inpatient treatment by a psychiatric hospital
* Required involuntary outpatient treatment by a psychiatric hospital based on a finding that the person is an imminent danger to himself or to others
* Required involuntary commitment to a psychiatric hospital for any reason including drug use"
You know, this brings up a good point. Admittedly, I've not been paying too much attention to the proposed background checks and don't know which mental illnesses would qualify someone to be prohibited. Having just taken a quick look at the Reporting Improvement Act, it appears that due process is to be provided to someone adjudicated to be mentally incompetent for purposes of firearm ownership. So I'm now not sure why you pointed out that a felon has received due process when someone declared mentally incompetent under this Act would also receive due process.
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Old 03-26-2013, 9:35 AM
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My understanding is this: whether a mental illness bars someone from ownership is not tied to diagnosis but behavior and court ruling. For example: someone who had ADHD or other mental diagnosis would not be disqualified from owning a firearm simply because of the diagnosis; they would require a court ruling or a determination from a physician they are a danger to themselves or others.

Without creating a list of specific illnesses you cannot bar someone based upon looking at health records. And then there are expost facto issues too. How do you handle productive law abiding members of society with no history of any issues who have a diagnosis now deemed prohibited? It was lawful for them to purchase the firearm and it was also lawful for them to possess the firearm... Does that mean a federal confiscation program needs to be mandated to remove firearms from possession from those the government now doesn't want to have them?

This is a pretty big can of works to open.
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Old 03-26-2013, 10:37 AM
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Originally Posted by snobord99 View Post
You know, this brings up a good point. Admittedly, I've not been paying too much attention to the proposed background checks and don't know which mental illnesses would qualify someone to be prohibited. Having just taken a quick look at the Reporting Improvement Act, it appears that due process is to be provided to someone adjudicated to be mentally incompetent for purposes of firearm ownership. So I'm now not sure why you pointed out that a felon has received due process when someone declared mentally incompetent under this Act would also receive due process.
I think there is perhaps some miss communication here. I am supportive of the above proposed NICS Reporting Improvement Act in it's current, proposed, form
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Old 03-26-2013, 11:02 AM
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Not gonna lie this is going to prevent a lot of vets from getting the help they need, most don't want to go see mental health anyway and now with these new laws they'd become second class citizens who don't rate the rights they swore to defend
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Old 03-26-2013, 11:13 AM
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Originally Posted by Moonshine View Post
My understanding is this: whether a mental illness bars someone from ownership is not tied to diagnosis but behavior and court ruling. For example: someone who had ADHD or other mental diagnosis would not be disqualified from owning a firearm simply because of the diagnosis; they would require a court ruling or a determination from a physician they are a danger to themselves or others.

Without creating a list of specific illnesses you cannot bar someone based upon looking at health records. And then there are expost facto issues too. How do you handle productive law abiding members of society with no history of any issues who have a diagnosis now deemed prohibited? It was lawful for them to purchase the firearm and it was also lawful for them to possess the firearm... Does that mean a federal confiscation program needs to be mandated to remove firearms from possession from those the government now doesn't want to have them?

This is a pretty big can of works to open.
I agree. There are supposedly about 300 different Psych Disorders listed in the current DSM. It's not a exact science. No blood test, X-Ray or other lab tests to determine with one of the 300 disorders in the current DSM you have or may not have, depending on the clinician. I think we have all heard of court trails where conflicting testimony has been given by psychiatrists
http://allpsych.com/disorders/
http://allpsych.com/disorders/disorders_dsmIVcodes.html

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Old 03-26-2013, 11:37 AM
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And talking about exact science there are also extremities in each DSM... I looked at Bipolar in the DSM link and those individuals vary from Bipolar I patients who require hospitalization all the way to Bipolar II diagnosis which is such a mild disorder it states its "easy to misdiagnose". Not exactly a very scientific manner to determine someone's rights in my opinion.

I fully support the NICS as written and it should be mandatory for all states to report individuals who are a threat to themselves or society and those adjudicated to be incompetent. But HIPPA based checks leave too much room for error and also leave too much power to a group (doctors and physicians organizations) who have publicly stated on many occasions they are against ownership of firearms.
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Old 04-12-2013, 4:37 PM
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see this:
http://blog.heritage.org/2013/04/12/...ealth-records/
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Old 04-12-2013, 5:44 PM
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HIPAA has TWO A's.................
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Old 04-12-2013, 5:55 PM
Dave A Dave A is offline
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"the medical "community" generally supports any and all anti gun legislation. not as individuals mind you, but every major medical association. same as l.e..it'll be interesting to see if they favor sacrificing patient privacy to further gun control. my guess is they'll see no problem with it. "

Are you aware that only about 17% of physicians belong to the AMA. The AMA loves to offer their left wing opinions, but they don't speak for many doctors, a fact the mainstream press neglects to mention.
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Old 04-12-2013, 7:37 PM
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FYI, HIPAA regulations were made to allow patients access to their medical records and to restrict access to authorized entities. It is not an absolute right to privacy. There are many conditions that require disclosure of medical information. Some may be serious, i.e. potential suicide or murder, others relatively innocuous. For example, if you have rotator cuff surgery your doc may deem that you are unfit to drive, report this to the DMV and suddenly you have a restricted license.

From:
http://www.ama-assn.org/ama1/pub/upl...s-chapter8.pdf

"Mandatory medical reporting
Yes, physicians are required to report all patients diagnosed with ‘disorders characterized by lapses of consciousness’. Law specifies that this definition includes Alzheimer’s ‘and those related disorders that are severe enough to be likely to impair a person’s ability to operate a motor vehicle.’
Physician reporting laws
Physicians are not required to report unsafe drivers. However, they are authorized to report, given their good faith judgment that it’s in the public interest.
Immunity
Yes, if condition is required to be reported. (A physician who has failed to report such a patient may be held liable for damages.) A physician has immunity from reporting a condition, even if it not required, if in good faith, the physician believes it will serve the public interest.
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Old 04-12-2013, 8:10 PM
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Let's say that I am worried that I think I may be going crazy, but I know that if I go talk to a doc about it I will lose my guns. Do you think I will talk to the doc about it?

Unintended consequences.
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Old 04-12-2013, 8:23 PM
phamkl phamkl is offline
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HIPAA.

This is important.

H I P A A.Health insurance portability and accountability act.
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