FBI retains access to medical records under the newly reauthorized Patriot Act

The renewed USA Patriot Act continues to allow the FBI to search confidential medical records as part of counterterrorism investigations but provides new legal options for physicians ordered to hand over patients' records.

The bill's passage this month came after months of delays and negotiations over key provisions of the federal antiterrorism law, which some lawmakers criticized for not adequately protecting civil liberties. In the end, the bill passed by wide margins in both chambers -- 89-10 in the Senate and 280-138 in the House.

President Bush signed the bill into law March 9, just one day before the original Patriot Act was set to expire.

The new law makes permanent 14 of the Patriot Act's 16 provisions, but it extends two provisions for only four years. One of those two is Section 215, which allows the FBI to conduct secret searches of private records, including medical records.

Section 215 has raised concern among physicians, some of whom say the provision could compromise patient confidentiality and undermine the integrity of the physician-patient relationship.

Under that part of the law, physicians are required to hand over patients' medical records when requested by the FBI as part of a counterterrorism or counterintelligence investigation. But the section prohibits them from telling patients their records have been disclosed.

The American Medical Association and other physician groups have advocated lifting that "gag order" on doctors.

"Privacy and confidentiality are the bedrock of the patient-physician relationship and a responsibility that physicians take seriously," said AMA Board Chair Duane Cady, MD.

An AMA Board of Trustees report approved at the 2005 Annual Meeting recommended Section 215 be allowed to expire as scheduled. If the provision were reauthorized, however, the report suggested calling for added confidentiality safeguards. These included making only specific, discrete and relevant portions of medical records searchable and giving judges the discretion to refuse to issue a court order allowing the FBI to search a patient's record if there is no clear and convincing evidence of probable cause.

Changes to the Patriot Act address some physician concerns by imposing tougher requirements the FBI must meet before agents can obtain a court order to search private records. The FBI's director or deputy director must approve, in writing, any request to search private records. The bureau also must submit to the court a "statement of facts" that establishes reasonable grounds to believe the records sought are relevant to a counterterrorism investigation.

"The AMA appreciates the inherent difficulty in balancing an individual's right to privacy against law enforcement's need for rapid access to sensitive personal information," Dr. Cady said after the bill's passage.

He noted that Congress had provided additional legal options for doctors faced with a court order to hand over a patient's medical record. "The AMA communicated its concerns to policymakers, and the Patriot Act now grants physicians the right to challenge requests for patients' medical records and restrictions against patient notification."

Additional legal protections

The reauthorized Patriot Act retains the gag order in the original law, and that remains a concern for doctors. But the new measure adds safeguards, such as allowing physicians to consult an attorney when ordered by the FBI to produce records and other items as part of a counterterrorism investigation. Under the original statute, doctors and others subpoenaed for records were not allowed to disclose that fact to anyone, including a lawyer.

The law also gives individuals a new right to challenge the gag order in court one year after the documents are provided.

The measure prevents the FBI from demanding the names of lawyers consulted by people ordered to hand over documents.

The added safeguards make the new law "a little better" than the old one, said Steven Sharfstein, MD, president of the American Psychiatric Assn. and president and CEO of the nonprofit Sheppard Pratt Health System in Baltimore. "But the concept of not being able to tell your patient that the government has insisted on looking at their record is troubling," he said.

That view is shared by David Fassler, MD, clinical professor of psychiatry at the University of Vermont College of Medicine and the American Academy of Child and Adolescent Psychiatry's representative to the AMA House of Delegates.

There are "minor improvements" over the original Patriot Act, Dr. Fassler said. But he remains concerned that the law "gives government authorities the ability to access confidential medical information while prohibiting a physician from telling his or her patient that such a request had been received or that information had been provided."

"As a psychiatrist, this would be a completely untenable situation," he added. "If such a request were received, I would be compelled to terminate treatment, essentially without explanation to the patient."

More opportunities for advocacy

Although Congress has renewed the Patriot Act, there will be opportunities to seek further changes to the antiterrorism law.

"It's my understanding that efforts are already under way to draft new legislation which would modify various provisions of the Patriot Act," Dr. Fassler said. "I would hope and expect that the AMA will be an active participant in the discussions pertaining to any such legislative initiatives."

For example, Senate Judiciary Committee Chair Arlen Specter (R, Pa.) introduced legislation March 6 that would further enhance the law's civil liberty protections. The bill, which has bipartisan support, would eliminate the one-year waiting period before gag orders can be challenged and would demand evidence of a link to a foreign power before a person's medical records could be obtained.