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. (Source)
This order would make mental health records part of the background check that is done before the purchase of a gun. Right now, states are supposed to provide a list of people who have been involuntarily institutionalized for the sake of background checks. Very few states actually do this, however, due to concerns about HIPAA.
HIPAA assures that only the people who need to have access to your health information has access to it. There are a few exceptions to this however. For example, your information (minus any identifiers like your name) can be used in research. Also, when served with a subpoena, your doctors can release your information if it is needed for the investigation of a crime. The one exception that I could find that is related to this issue of gun control is:
Serious Threat to Health or Safety. Covered entities may disclose protected health information that they believe is necessary to prevent or lessen a serious and imminent threat to a person or the public, when such disclosure is made to someone they believe can prevent or lessen the threat (including the target of the threat). Covered entities may also disclose to law enforcement if the information is needed to identify or apprehend an escapee or violent criminal. (Source)
(Covered entities are the people who are allowed access to your records.)
Under this exception, if you could argue that someone with a mental illness poses an imminent threat to society at large, their records could ethically be used in background checks.
While some of the most recent mass murders did have a mental illness, study after study has shown that past mental illness is not a predictor of future violent behavior. People who have suffered from a mental illness are statistically no more likely to commit a violent crime than someone who is mentally healthy. Studies have shown that mental illness alone does not cause violence. Often in the case of mentally ill murderers, the mental illness is compounded by drug use or a triggering event in their lives (ex: divorce or death in the family). Mentally ill mass murderers are often not diagnosed with a disorder until after the crime was committed. So it would seem that using mental health records in background checks would be a pointless violation of HIPAA. (Source)
Sure, it would make us feel better to know that there are barriers for the mentally ill to get their hands on guns, but it would not actually make us any safer and it would violate the privacy of millions of individuals. Most mass murderers have no history of mental illness. This would simply be an example of using anecdotal evidence instead of actually looking at the numbers. We know that the shooter at Virginia Tech was mentally ill, so all mentally ill people cannot be trusted with guns. Well, we know that the Virginia Tech shooter was an Asian-American too, so should we bar all Asian-Americans from having guns?
It seems to me that this is just another symptom of the stigma of mental illness in this country. I think that is one of the real issues. People don't get help because they are afraid they will be looked down upon. Health insurance companies still do not treat mental illness as seriously as physical (another one of the Executive Orders signed yesterday will hopefully help with that). The mentally ill are not dangerous crazies. They are ill, like someone with pneumonia is ill, and they need our support.
I can't believe I'm arguing for gun rights. I am arguing for reasonable gun control measures that will actually make us safe, not creating dangerous precedents for HIPAA violations.
Interesting article about the fallacy of using past behavior to predict future behavior