Mental illness and gun ownership in NYS, per 2013 NYS SAFE Act

Partially as a result of the Newtown Shootings, in early 2013, New York State passed the SAFE Act which has provisions affecting whether or not people with mental illness may own guns. In certain situations it requires treating professionals to make a report if someone in their care is believed to be mentally ill and likely to become dangerous, so guns can be removed from the home.

1. Many mental ‘health’ advocates oppose the reporting requirement. They think it will cause ‘stigma’. We feel the real danger of knowing someone is mentally ill, believing they are dangerous, and doing nothing trumps the hypothetical stigma that could be caused in future generations that hypothetically might prevent them from seeking treatment.

2. The NYS SAFE Act requires reports from treating professionals to the Community Mental Health Director-who decides if the report warrants being passed on to the Director of Criminal Justice Services. This is a good provision because it allows the Community Mental Health Director–if he or she wants–to provide treatment. At mimimum, they will no longer be able to say, they did not know there was a person with mental illness who was likely to be become dangerous living in their community, should one of them becomes a headline. It could help them prioritize the most seriously ill for treatment.

Gun Control and Mental Illness in NYS

Q: When does the new reporting requirement take effect?
A: March 16, 2013.

Q: What is required to be reported?
A: The law requires mental health professionals to report to their local director of community services or his/her designees when, in their reasonable professional judgment, one of their patients is “likely to engage in conduct that would result in serious harm to self or others.”

Q: Who is required to report?
A: The reporting requirement extends to “mental health professionals,” defined in the law as four professions – physicians (including psychiatrists), psychologists, registered nurses, or licensed clinical social workers.

Q: Who is potentially a subject of a report?
A: All persons receiving mental health treatment services from any of the four types of mental health professionals identified in the law, regardless of the setting in which they work.

Q: Does the reporting requirement apply to mental health professionals working in private practice, on general hospital wards, or other locations outside of psychiatric wards?
A: Yes, the requirement to report is not dependent upon the location of the treating professional or the patient.

Q: Are there exceptions to this reporting requirement?
A: Yes. A report is not required when, in the mental health professional’s reasonable professional judgment, a report would endanger him or her or would increase the danger to the potential victim or victims.

Q: What if there are several mental health professionals treating a particular individual – are all of them required to make a report?
A: Reports are made using a clinician’s reasonable professional judgment. Different clinicians treating the same individual may not agree, which should not prevent any one, or all, of them from making a report.

Q: What information about the patient should be reported by mental health professionals?
A: Mental health professionals should convey information necessary to allow the director of community services to review the matter and determine if a report to the NYS Division of Criminal Justice Services is required (e.g., what clinical evidence, history, and risk factors have caused the mental health professional to conclude that the patient is likely to engage in conduct that would result in serious harm to self or others).

Q: Are such reports in compliance with the federal HIPAA patient privacy law?
A: Under HIPAA, because these informational disclosures are required by law, they can be made without the patient’s consent. HIPAA permits disclosures of protected health information without the authorization or consent of the individual to the extent that such disclosure is required by law and the disclosure complies with the requirements of that law.

Q: When should a mental health professional make a report?
A: The mental health professional should make a report as soon as possible.

Q: What information will a local director of community services report to the Division of Criminal Justice Services and what can Division of Criminal Justice Services do with such information?
A: A local director of community services may only disclose a patient’s name and other non-clinical identifying information (e.g., date of birth, race, sex, SSN, address) to the Division of Criminal Justice Services, and that information can be used by the Division of Criminal Justice Services to determine if the patient has a firearms license.
If the patient has a firearms license, the Division of Criminal Justice Services will report that information to the local firearms licensing official, who must either suspend or revoke the license. The information may also be used in connection with a determination of firearms license eligibility should the subject of the report apply for a firearms license in the subsequent five years.

Q: How long will the Division of Criminal Justice Services retain the personal information they receive?
A: The Division of Criminal Justice Services must destroy information received five years after receipt.

Q: Mental health professionals must make reports when, in their professional judgment, it is believed that the patient is “likely to engage in conduct that could seriously harm the patient him/herself or others.” What does that mean?
A: The standard “likelihood to result in serious harm” means threats of, or attempts at, suicide/serious bodily harm to self, or homicidal/violent behavior towards others. This standard justifies the need for immediate action, as a public safety measure, to prevent harm. Mental health professionals must use reasonable professional judgment when making this determination.
In general, a report would originate if the clinician determines the person is likely to engage in conduct that could seriously harm the patient and/or others. It is not, however, necessary to establish that the patient has a gun before making the report.

Q: Can mental health professionals who make a determination to report or not to report be held liable?
A: The new law specifically provides that if a mental health professional uses “reasonable professional judgment” and “good faith” when making a determination, this decision cannot be the basis for any civil or criminal liability on the part of that professional.

DJ Jaffe is Executive Director of the non-partisan Mental Illness Policy Org., and author of Insane Consequences: How the Mental Health Industry Fails the Mentally Ill. He is a critic of the mental health industry for ignoring the seriously ill, and has been advocating for better treatment for individuals with serious mental illness for over 30 years. He has written op-eds on the intersection of mental health and criminal justice policy for the New York Times, Wall St. Journal and the Washington Post. New York Magazine has credited him with being the driving force behind the passage of New York’s Kendra’s Law and Congress incorporated ideas proposed by DJ in the Helping Families in Mental Health Crisis Act.