A Prescription for Information Sharing Between Law Enforcement and The Medical Community to Improve Threat Assessments

Amy Thibault

EXECUTIVE SUMMARY

The nature of violent attacks, including terrorist attacks, in the United States has evolved. Such small-scale incidents as edged-weapon attacks, small-arms attacks, and vehicles used as weapons have become more prevalent. These types of events require minimal resources and planning by the perpetrators, and they do not require a large network; they often involve just one individual. The opportunity for law enforcement to discover or disrupt such attacks is limited. Individuals may disclose information to medical professionals that they would not disclose to family, friends, or even their spouse. Such information may include indicators suggesting that the person is radicalizing or has a propensity for violence. Others may exhibit mental instability or paranoia that could lead to extreme actions. Law enforcement does not have an effective mechanism for understanding how an individual’s medical condition—including mental illnesses or behavioral disorders—may influence the person’s behavior in order to accurately assess their risk to the community.

Failure to identify individuals who pose a violent criminal threat to society often results in grave consequences. Medical practitioners—mental health providers and non-mental health professionals alike—may encounter, in their daily work, individuals who present a violent threat to the community. Threat assessment frameworks emphasize the need for information sharing between the medical community and law enforcement. The ability to conduct an accurate threat assessment depends on the analysis of all existing information about a subject’s previous behavior and medical conditions. When medical personnel learn of a potential threat to the community, even if it is not imminent, there needs to be a mechanism for them to share the information with law enforcement. If law enforcement receives a tip related to a threat by an individual, they need a mechanism to collect all relevant information in order to assess the validity of the threat.

This thesis sought to answer the following questions: How can law enforcement enhance information sharing with the medical community to identify individuals who may pose a threat of committing violent criminal or terrorist acts? Are there laws or policies that need to be created or changed in order to foster better communication? To answer these questions, the research analyzed existing laws and regulations as well as programs already in existence that allow information sharing between the two disciplines.

Though medical practitioners may have information that could potentially disrupt a violent attack or explain a person’s abnormal behavior, laws including the Health Insurance Portability and Accountability Act (HIPAA), the Family Educational Rights and Privacy Act (FERPA), and 42 Code of Federal Regulations (CFR) Part 2, limit the information that can be shared with law enforcement. Furthermore, some state duty to warn laws are inadequate, applying only when there is imminent danger. Research indicates that when these regulations are put into practice, they are usually interpreted in a narrower and more conservative manner than intended. The fear of retribution, whether legal or regulatory, causes practitioners to err on the side of caution and avoid sharing information, which impacts law enforcement’s ability to prevent some violent attacks. Privacy concerns, ethical guidelines, and organizational culture all may impact information sharing between the medical community and law enforcement. Current laws and programs are insufficient to proactively address the threat of violence to the community.

There are several intelligence and information sharing initiatives already in place that encourage or allow information sharing between the medical community and law enforcement. These initiatives involve cases of child or elder abuse, injuries sustained by gunshots or knives, and prescription monitoring programs. Additionally, public health regulations often require medical professionals to report cases of certain diseases in order to prevent outbreaks. Mental health and behavioral health data sharing is allowed for an individual who is incarcerated or to prevent individuals with certain illnesses from purchasing a firearm. There has been a concerted effort to incorporate public health into fusion centers, which include public health partners. Information sharing with fusion centers would allow law enforcement to more proactively identify suspicious activity before a violent incident occurs.

The nature of violent attacks necessitates better integration of all relevant information about a subject’s background, both criminal and medical, to inform threat assessments and ensure the public’s safety. A review of past violent incidents has shown that the lack of information sharing between the medical community and law enforcement has contributed to law enforcement’s inability to thwart attacks before they happen. Though it would be impossible to prevent every violent attack, having more information available for threat assessments will improve our ability to preempt some attacks.

Four recommendations are provided. The first recommendation is to conduct a legal analysis of HIPAA, FERPA, 42 CFR Part 2, and state duty to warn laws, which inhibit the ability of law enforcement and the medical community to share medical information for threat assessment purposes. Second, states could enact individual laws that mandate information sharing between the medical community and law enforcement for the purposes of threat assessment, which would then allow release of the information under HIPAA and 42 CFR Part 2. Third, training should be provided to law enforcement and the medical community to ensure they understand the circumstances in which information sharing is allowable and the extent of the information that can be shared. Finally, opportunities for the two disciplines to work together—such as during joint exercises—will foster greater mutual understanding among the different disciplines.

 

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