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Guns and mental illness: NY SAFE Act

January 30, 2013
by By Alison Knopf, Contributing Writer
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New law singles out mentally ill, makes providers responsible for reporting those ‘likely to commit harm’
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On one side of the debate over guns is the National Rifle Association, which blames gun violence on “criminals" and "insane killers," but doesn’t want limits put on gun ownership. However, the NRA has no qualms about singling out people with mental illness for further investigation. As President Obama said in introducing the Administration’s approach to preventing another Newtown, Connecticut tragedy, people with mental illness are far more likely to be the victims than the perpetrators of violence.

Still, singling out people with mental illness is what the nation’s strongest gun law yet, passed by the New York legislature in the quickest – and some say least thoughtful – vote on legislation, signed by Gov. Andrew Cuomo January 15. In the law, legislature went way beyond what is already federal law, which says that the names of people who have been committed are supposed to be in a database which prevents them from having guns. This law, called the Secure Ammunition and Firearms Enforcement Act (SAFE Act), requires mental health providers to report to authorities any patient who is likely to do harm to himself or others. That information will be crosschecked against a new (still nonexistent) database of gun owners. If that person has a gun, the license will be suspended and the gun will be confiscated.

Paul Appelbaum, M.D., chair of the American Psychiatric Association’s Committee on Judicial Action, is very critical of the law. Current standards give clinicians the option to manage patients who express ideas of hurting themselves – or, less frequently, other people – in whatever way seems likely to be effective, he told Behavioral Healthcare.

“That includes a range of interventions, from hospitalization – voluntary or involuntary – to seeing the patient more frequently, adding or altering medications, entering the patient into a day program, or starting substance abuse treatment,” said Appelbaum, who is also also Elizabeth K. Dollard professor of Psychiatry, Medicine, and Law at Columbia Law School. “There are any number of clinical approaches that can be taken to reduce the risk of harm or self to others,” he said. “This statute takes that relatively flexible situation and imposes a non-flexible rule on it. Whatever else you do, you have to report these people to the state.”

There are many unanswered questions about the legislation, not the least of which is this: what if you report to the state that a patient is thinking about harming himself or others, but the person isn’t a gun owner? “That is a fine question,” said Appelbaum. “A lot of the details of how this actually works have not been thought out.”

Nobody seems to know the genesis of the mental health reporting provision; most of the legislation is focused on gun restrictions. The statute says that names are to be reported to the local mental health authority, which in New York is at the county level. The mental health authority would then transmit those names to the state Division of Criminal Justice Services, which will check those names against a database of gun licensees in the state. “Beyond that, the consequences of  not reporting are extremely vague,” said Appelbaum.

The concern on the part of clinicians is if they don’t report and something terrible happens, they will be liable. “If my patient acts on their impulses in a horrendous way, what happens when everyone starts pointing fingers at me?” said Appelbaum, noting that this week a lawsuit was filed against Lynne Fenton, M.D., the University of Colorado psychiatrist who treated James Holmes, the gunman in last year’s Aurora, Colorado shootings, by the widow of a victim. Reportedly, Fenton had asked for observation for the Colorado shooter, but because he was no longer part of the university system, the campus police did not act. The university was named in the lawsuit as well.

Guidance?

Appelbaum expects the law to have a chilling effect on therapist-patient communications. While there is hope that the legislation could be amended, there is often a reluctance to reopen bills once they have been passed for fear of putting the entire bill at risk. “I don’t know whether there will be similar reluctance here,” said Appelbaum.

The mental health reporting provision doesn’t go into effect until 60 days from the legislation being signed, said Appelbaum. “Between now and then we hope there will be some clarification of what the state expects. We’re engaged in watchful waiting.” He spoke to Lloyd Sederer, M.D., medical director for the state’s Office of Mental Health, on January 17, and noted the OMH clearly understands the problems the law presents to mental health professionals. At press time, it was still unclear whether the OMH or another agency would provide guidance, or if there would be any guidance at all.

The legislature also placed the responsibility to report on a specific set of providers:  physicians, psychologists, registered nurses, or licensed social workers. The inclusion of “physicians” goes beyond psychiatrists to include those who may be delivering mental health services in primary care, for example. Depression, Appelbaum noted, is mainly treated by non-psychiatrist physicians in primary care settings. Likewise, the treatment of ADHD in children is typically handled by pediatricians.

Applebaum says the NRA has been very successful in turning the gun discussion into a mental illness discussion, and that the result is increased stigmatization of people with mental illness.

The background check

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