Unauthorized police access to PDMP data

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The Court of Appeals of Tennessee recently reviewed a lawsuit brought by a police officer who allegedly accessed state prescription drug monitoring program (PDMP) data through a pharmacist under circumstances that were not authorized by the law. The police officer was dismissed from his position and his appeal of his dismissal was rejected. While the pharmacist was not implicated, this case raises interesting questions about the extent to which pharmacists should be asked to cooperate with law enforcement in the acquisition of PDMP data.

Background

The officer, a detective in the local narcotics unit, was approached by two members of a regional drug task force, who informed him of their suspicions that their director might be abusing prescription medications. Later, according to the officer, a criminal court judge told him that the director appeared to be “under the influence” while obtaining the judge’s signature in chambers.

The officer decided to investigate the matter on his own. He obtained personal information, including the director’s Social Security number and date of birth, through a criminal justice database. He then asked his friend and neighbor, a pharmacist, to look up state PDMP data to determine whether the director’s prescription drug purchases were suspicious. This pharmacist asked two other pharmacists to access the database for him. The pharmacists queried the database as requested and determined that the drug purchase history “did not raise any suspicion of illegal activity.” The officer ended his investigation.

Shortly thereafter, the chief of police was informed of the officer’s actions in accessing the PDMP database. After an investigation by internal affairs, the officer’s employment was terminated. The officer unsuccessfully appealed the termination on several levels, ultimately reaching the state Court of Appeals.

Rationale

The officer’s contention on appeal was that the city had acted arbitrarily and capriciously in terminating his employment. He cited testimony from a Tennessee Bureau of Investigation (TBI) agent who stated that at the time of the investigation, “TBI was training agents that it was proper and legal to ask a pharmacist to check the PDMP database to see if a person’s prescription drug history raised any suspicion of criminal activity.” In response to this information, a detective testified that “according to the Board of Pharmacy’s attorney, you cannot ask a pharmacist or initiate conversation with a pharmacist to indulge or look into that database. It must be done by a court order signed by the [district attorney] and the judge.”

The court concluded that the decision to terminate the officer’s employment was based on material evidence and was not arbitrary or capricious. The employment termination was upheld.

Discussion

Most states now have some form of PDMP system through which pharmacies upload data related to dispensing controlled substances, creating an aggregated database that can be queried for information about drug use by a specific patient. The general idea is to prevent “doctor shopping” and expose people who see multiple prescribers to acquire more medication than they legitimately need.

In most states, the primary intended users of PDMP databases are health professionals, not law enforcement personnel. In states where law enforcement can access the data, there are usually restrictions that limit access to circumstances when law enforcement has demonstrated a legitimate need. This access may or may not require a court order, but it usually requires some formal showing of reasonable belief that unauthorized acquisition of controlled substances has occurred or is occurring. Rumor, innuendo, and unsupported suspicion generally do not authorize law enforcement to conduct a “fishing expedition” to develop a reasonable belief.

A request for a PDMP report by law enforcement personnel to a pharmacist puts the pharmacist in an untenable position. Pharmacists try to collaborate with law enforcement both because it is the right thing to do and because noncooperation raises the possibility of suspicion and retaliation. The information in PDMP reports is personal and private. Patients expect that pharmacists will maintain the confidentiality of this information, and this is a key aspect of the professional relationship of trust between pharmacists and patients.

Pharmacists should not be put in the position of deciding whether a request from law enforcement for a PDMP report is legitimate. All such requests should be directed to the program, not to individual pharmacists. Pharmacists should refuse all requests for PDMP reports from law enforcement.

Based on: Brumley v City of Cleveland, 2013 Tenn.App. LEXIS 274 (April 23, 2013).

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