Legal Update

Mental health and legal reflections on gun safety legislation


By Amy T. Campbell, James Knoll, and Erin O'Connor

After the latest mass shooting tragedy in Sandy Hook, New York sought to become the first state to pass “amendments to the Mental Hygiene Law [to] help ensure that persons who are mentally ill and dangerous cannot retain or obtain a firearm” (Appelbaum 2013).  On January 15, 2013, after record speed in passing through the State Senate and Assembly after public release, Governor Andrew Cuomo signed into law the New York Secure Ammunition and Firearms Enforcement Act (“NYSAFE”).

Critically for our purposes herein, NYSAFE adds a new section, 9.46, to N.Y. Mental Hygiene Law, which amendment purports to impose a mandatory duty to warn but is hampered by ambiguous language.  It expands the duty of mental health professionals to report patients “likely to engage in conduct that would result in serious harm to self or others.”  For these patients, the practitioner is “required to report...to the director of community services...who shall report to the division of criminal justice services whenever he or she agrees” (N.Y. Mental Hyg. Law § 9.46 (McKinney 2013)).

However, the law later appears to relieve the practitioner of this obligation and any liability. It states, “nothing in this section shall be construed to require a mental health professional to take action which . . .would endanger such mental health professional or increase the danger to . . . victims” (emphasis added). Further, so long as the practitioner’s decision to disclose or not to disclose is made in “good faith,” it “shall not” form the basis for civil or criminal liability.

NICS to NYSAFE: A mental health perspective

Upon what legal authority and basis did NYSAFE, in part, build?  At a federal level, in December 2007 the US

Senate passed H.R. 2640, which gave states permission to create “systems” for reporting the names of individuals prohibited from possessing or purchasing firearms, including people who have been involuntarily committed to psychiatric hospitals.  But the practical problem was that the two categories used in the Gun Control Act were those found not guilty by reason of insanity, and those who have been civilly committed.  These specific categories “speak to perceived riskiness (not always riskiness to others) at the time of a past crime or hospital admission but do not speak clearly to future risk” (Buchanan, 2011).

Well over a decade later, the mechanics, practicality and effectiveness of the NICS remains uncertain at best, and unreliable at worst. The current state of affairs reveals that “state statutes vary widely in terms of the definitions of, and reporting requirements relating to, prohibited persons with mental illness or substance abuse” (Price & Norris, 2010). Indeed, states “vary widely” in how they approach NICS related mental health cases, how they are evaluated, how they are decided and how effectively they are reported.   But the important facet of the NICS system to consider is that it focuses on individuals who have a history (often in the distant past) of being involuntarily committed, and who then attempt to buy a firearm – legally.  Thus, the law focuses on those persons with serious mental illness (“SMI”) who follow the rules.  This intervention would seem at best low yield, as it is highly unlikely that many would-be mass murderers will have a history of prior civil commitment – and then attempt to legally purchase a firearm to perpetrate their mass homicide-suicide.

Considering the very low percentage of violent acts that are attributable to SMI, and that most of these acts do not involve guns, “the contribution to public safety of these laws is likely to be small” (Appelbaum & Swanson, 2010). It is also the case that imposing these special laws requires resources and funding, all for a speculative, unproven system. A more sensible method, as noted by Appelbaum & Swanson (2010), involves state statutes that allow “firearms to be removed from persons in emergency situations, when the risk of violence is heightened,” regardless of whether or not the person has a mental illness.  This may be a rational option to pursue while awaiting more data points from the research. The small amount of research on firearms seizure laws does suggest that “seizure by police was rarely a result of psychosis; instead, risk of suicide was the leading reason” (Parker, 2010).

Returning to NYSAFE, it was passed quickly, and without much time for mental health stakeholder input.  The act has several provisions with regard to mental health, but the relevant portion for this discussion is the following:

When a mental health professional currently providing treatment services to a person determines, in the exercise of reasonable professional judgment, that such person is likely to engage in conduct that would result in serious harm to self or others, he or she shall be required to report, as soon as practicable, to the director of community services, or the director’s designee, who shall report to the division of criminal justice services whenever he or she agrees that the person is likely to engage in such conduct. Information transmitted to the division of criminal justice services shall be limited to names and other non-clinical identifying information, which may only be used for determining whether a license issued… should be suspended or revoked…

Nothing in this section shall be construed to require a mental health professional to take any action which, in the exercise of reasonable professional judgment, would endanger such mental health professional or increase the danger to a potential victim or victims.

The decision of a mental health professional to disclose or not to disclose in accordance with this section, when made reasonably and in good faith, shall not be the basis for any civil or criminal liability of such mental health professional.

The language is unclear on key points, and contains a number of perplexing statements.  For example, note that the phrase “likely to engage in conduct” appears to require an assessment of risk – in itself a contentious issue – yet there is no definition of what “likely to engage” means in real world practice.  For example, does this imply “likely now,” or “likely ever”?  Another key phrase: “shall be required to report” seems to elevate the requirement to what the law calls a duty, as opposed to conferring authority without civil liability.  New York is one of a few states with no explicit Tarasoff (duty to protect) statute. Rather, in two separate provisions of the New York Mental Hygiene Law (MHL § 33.13) practitioners are given the “authority to warn.”

The difference between duty and authority is crucial: a duty implies that there is a legal liability for a breach of the duty, either by failing to carry it out or by carrying it out in an improper manner. Authority, on the other hand, implies permission to do something without legal consequences for failing to do it, or doing it improperly. The NY SAFE Act’s language stating: “shall be required to report” would appear to arise to a duty, yet this followed by language which appears to confuse the issue: “The decision of a mental health professional to disclose or not to disclose… shall not be the basis for any civil or criminal liability.”

Another key phrase – “to require a mental health professional to take any action which… would endanger such mental health professional or increase the danger to a potential victim or victims” – presents another set of perplexing questions. Whether this clause means that a mental health professional could claim immunity from legal liability if she was fearful of retribution by the patient or because she feared reporting might lead to acts of vengeance against some third party remains unclear.  Regardless, this confounding disclaimer, if taken at face value, would seem to potentially undercut the goals of NYSAFE.

A different legal prism on/for NYSAFE: Therapeutic jurisprudence

In light of the above, respectful and evidence-informed debate over gun control, violence risk, and persons suffering from SMI is needed.  While there is practicality and value in seizing the moment, there is also risk when the evidence base for action is shaky or easily manipulated for sound bites.

While it may be too late to debate passage of NYSAFE, it is not too late to turn to alternative frameworks for legal action for current and future policy action. Therapeutic jurisprudence (“TJ”) offers such a different frame.  TJ is an approach to law’s implementation, process, and creation that focuses on the therapeutic, as well as psychological, consequences (Wexler & Winick) of legal “interventions.” It urges legal actors to consider how to mitigate anti-therapeutic consequences, and ideally advance health-promoting ones.  Originating in mental health law, TJ has been extended to health policymaking (Campbell 2010, 2012), and could help reframe debates over gun control and the so-called “dangerously mentally ill” (Campbell forthcoming).

For NYSAFE, this might involve piloting the rollout of MHL §9.46. The pilot could include extensive data collection mechanisms that do not simply report on numbers of reports made (and for which diagnoses) or guns removed, but that also query individuals: those who make reports (i.e., health professionals) and those most intimately affected (i.e., patients). It might also consider the example of Indiana law (Ind. Code § 35-47-14) that focuses on dangerous behavior, as opposed to psychiatric diagnosis. Further, therapeutic-minded questions to consider in policy evaluation could ask: Does the reporting impact patient-therapist trust? Does this in turn negatively impact patient help-seeking behavior or other in-therapy disclosures?  How accurate are professionals in making “danger” reports? How is the process of gun removal experienced by patients, and what are their responses?

In sum, the “experience” of the law is more than the sum of individual actions. In such sensitive areas as confidentiality, patient trust, and help-seeking behavior, it seems imperative to tread mindfully, even if urgently.  Smaller steps with more thoughtful, participatory reflection may be more desirable for individuals in the short run, andwork more in the service of public safety and mental health in the long run. While it is true in public policy we do not wish “the perfect to be the enemy of the good,” we also must caution against “good for us” (vs. them) approaches or letting good intentions be the enemy of well-being, safety, and justice.

References

Appelbaum P. S. (2013).  Statement Representing the American Psychiatric Association. American Psychiatric Association: Department of Governmental Relations.

Appelbaum, P., & Swanson, J. (2010). Law & psychiatry: Gun laws and mental illness: How sensible are the current restrictions? Psychiatric Services, 61 (7). 652-654.

Buchanan, A. (2011). The problem with optimism. Psychiatric Services, 62 (11). 1372. doi: 10.1176/appi.ps.62.11.1372.

Campbell, A. T. (2010). Therapeutic jurisprudence: A framework for evidence-informed health care policymaking. International Journal of Law and Psychiatry, 33(5), 281-292.

Campbell, A. T. (2012). Using therapeutic jurisprudence to frame the role of emotion in health policymaking. Phoenix Law Review, 5, 675.

Campbell, A. T. (forthcoming). Is there a therapeutic way to balance community sentiment, student mental health, and student safety to address campus-related violence? In Miller M. K., Blumenthal J. A., & Chamberlain, J. (Eds.) Handbook of community sentiment.

Ind. Code § 35-47-14.

NICS Improvement Amendments Act of 2007 (PDF, xx), H.R. 2640, 110th Cong., 2nd Sess. (2008).

Norris, D. M., Price, M., Gutheil, T., & Reid, W. H. (2006). Firearm laws, patients, and the role of psychiatrists. The American Journal of Psychiatry, 163(8), 1392-1396.

N.Y. Mental Hyg. Law § 9.46 (McKinney 2013).

New York Secure Ammunition and Firearms Enforcement Act of 2013, (Chapter 1 of the Laws of 2013).

Parker, G. F. (2010). Application of a firearm seizure law aimed at dangerous persons: outcomes from the first two years. Psychiatric Services, 61(5). 478-482. doi: 10.1176/appi.ps.61.5.478

Price M., & Norris D. M. (2010). Firearm laws: a primer for psychiatrists. Harvard Review of Psychiatry, 18 (6). 326-335. doi: 10.3109/10673229.2010.527520

Swanson, J. (2013). Mental illness and new gun law reforms: the promise and peril of crisis-driven policy. Journal of the American Medical Association, 309 (12). 1233-1234. doi:10.1001/jama.2013.1113

Wexler, D. B., & Winick, B. J. (1991). Essays in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.