And that gave them an idea.
Like many law enforcement agencies, prescription drug abuse was a problem in need of a solution, and rather than go through the onerous burden of awaiting people to engage in crime, it dawned on them that they could just sneak in through the back door of the physician's office and slip in another seemingly innocuous form, a blob of mumbo-jumbo and was essentially guaranteed no one would ever read, and get it signed.
About midway down the form, it makes clear that it authorizes the physician to release otherwise confidential medical information to law enforcement if the physician believes that a crime has occurred. But who is going to read that far? And even if they did, most patients would anticipate that the inclusion of the form along with the others was required before they would get to see the doc.
For the most part, it never occurs to patients that they do not have to answer or sign a form just because someone told them to. As much as we talk about freedom, we're a remarkably compliant society, disinclined to refuse much of anything that appears even remotely official or required.
Armed with this notion, the Sarasota Sheriff decided that physicians should be part of his team. On the bright side, the doc's weren't inclined to sell out their patients quite that easily.
Sly indeed, as Adams described this as an "end run around the search warrant requirements." Whether sneaking an authorization into a pile of papers for the purpose of obtaining a waiver from a patient who had no clue what he was signing or why is about as sneaky and manipulative as it gets, the question remains whether it would be valid. After all, is this a knowing, intelligent and voluntary waiver?
The medical information waivers — which did not carry any indication that they were written by a law enforcement agency — were handed out last year to about 30 local pain doctors, who were asked to have patients sign them. But the measure never gained traction with doctors, and, so far, none has submitted a form signed by a patient.
Moreover, the move has drawn sharp criticism from some in the Sarasota County medical community and from defense lawyers who call it a sly way to violate a patient's constitutional privacy rights and protections under the federal Health Insurance Portability and Accountability Act, the so-called HIPPA [sic] law.
Normally, police would have to apply for a search warrant or obtain a subpoena for the records, said Assistant Public Defender Mark Adams.
According to the Sheriff's Department assistant general counsel, Patrick Duggan, and Sgt. Debra Kaspar, who runs the sheriff's Pharmaceutical Diversion Unit, they were "constantly" getting calls from physicians who wanted to rat out their patients, but feared legal consequences of violation of privilege. They were just trying to help the poor, concerned docs.
Maybe they were exaggerating just a wee bit about the physicians' desire to play junior deputy? However, not all pain clinics are owned by physicians.
“We want to make good cases. We don't want anyone's rights violated,” Duggan said. “We drafted the form to give the doctors a mechanism to contact us. It was really designed more as a safeguard to protect people's rights than anything else.”
Kaspar and Duggan have no explanation for why doctors are not turning in any waivers.
Paul Sloan, who is not a doctor and has owned two pain clinics in Sarasota County since 2007, wrote much of the county's [absurdly stringent] pain clinic ordinance. Sloan is blunt about what he will do to a patient suspected of breaking the law.“All my patients sign a contract — and they have since day one — the most comprehensive contract ever seen,” Sloan said. “It does state they are waiving their rights if we are approached by an investigator, that we'll turn over information to the sheriff's office."
Under the Sarasota ordinance, anyone writing more than 20 prescriptions for pain medication a month has to register as a pain clinic.
Clearly, the objective is to circumvent privacy and constitutional rights, as no one who is engaged in obtaining pain medication for illegal purposes would knowingly waive their rights. At the same time, it's not as if the form doesn't say what it does, even if it's less than clear about who prepared the form and the purpose for which a patient is being asked to sign. But hey, every patient has the opportunity to read it before signing. Is it the cops' fault someone doesn't? We're presumed to know what we sign, and if we sign without reading, who do we have to blame but ourselves?
The lesson is pretty clear. Read the forms and exercise your right to refuse to sign any form or fill in any blank that doesn't serve a medically necessary purpose. And it's likely a good idea to seek treatment from a medical practice owned by a physician rather than a guy more concerned with protecting his own license or playing junior G-man.