RALEIGH — The recent controversy over North Carolina sheriffs’ efforts to gain access to a state prescription drug database misses the key points: The state never should have created the database in the first place, and no law enforcement agency should have access to its information.
That’s the conclusion of the John Locke Foundation’s top legal expert, who argues in a new Spotlight report that North Carolina lawmakers should vote to scrap the database when they return to work next year.
“There is a disconcerting disregard for privacy in North Carolina,” said report author Daren Bakst, JLF Director of Legal and Regulatory Studies. “This database is one example. The recent law requiring DNA collection from felony arrestees is another. The legislature can support law enforcement while still recognizing that safety should not come at the expense of freedom.”
The 2005 state budget bill allowed the N.C. Department of Health and Human Services to develop a database containing individuals’ prescriptions for a wide range of drugs, Bakst said.
“Most North Carolinians knew nothing about the database until they learned recently that the N.C. Sheriffs’ Association wanted access to it,” he said. “While the sheriffs’ efforts do raise concerns, the bigger issue is that the state already collects this information. The State Bureau of Investigation already has access to it.”
The database represents a “shotgun approach” to address the problem of prescription drug abuse and misuse, Bakst said. “There are more than 53 million prescriptions in the state database, yet an informal estimate suggests the state has identified patterns of abuse in just 50 to 60 cases since 2007,” he said. “To take such an intrusive action to find a small number of ‘abuses’ is a gross violation of privacy rights.”
Maintaining a state database could have a chilling effect on people seeking access to proper medical treatment, Bakst said. “The public should not be fearful of engaging in legal activities,” he said. “Furthermore, the public should not have to worry about seeking necessary medical treatment at the expense of giving away sensitive personal information to the state. A trade-off between relieving pain and protecting personal privacy is a choice the public should never have to make.”
Bakst’s report focuses on one primary recommendation. “North Carolina should eliminate the database,” he said. “The entire database system is an overreaction. The incredible intrusion into the lives of citizens greatly outweighs the limited benefit, if any, that exists from such a database.”
If lawmakers balk at scrapping the database, Bakst offers secondary recommendations. “First, no law enforcement agencies — including the SBI — should have access to the database without a court order connected to a specific investigation,” he said. “Second, there should be no access to the database to anyone other than patients, pharmacists, and physicians. Beyond patients’ access to their own records, the information should be limited to the sole purpose of patient treatment.”
Third, state law should impose stronger penalties for people who misuse health data, Bakst said. “Under the current statute, a violator is subject to civil penalties and liability,” he said. “This is completely inappropriate given how intrusive a violation it would be for an individual to disclose someone’s health records improperly. Improper use should be made a felony.”
Lawmakers need to avoid writing a black check to law enforcement agencies, Bakst said. “It makes sense that law enforcement wants easy access to sensitive private information,” he said. “The more information they have, the easier it might be for them to do their jobs. But this will come at the expense of violating the rights of the innocent.”
“There is never going to be perfect safety in a free state,” Bakst added. “When the legislature passes such laws, it might help with safety, but it also is doing away with freedom. It is on the path to creating a police state.”
Lawmakers can take a different path in 2011, Bakst said. “When the legislature comes back next year, North Carolina should get out of the business of compiling a health record database,” he said. “State government should get back to regaining the public trust by not snooping on its citizens.”
Daren Bakst’s Spotlight report, “The Pill Police: North Carolina law enforcement has access to private health records,” is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or [email protected]. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or [email protected].