SAFE at What Cost?

Posted on June 24, 2013

Earlier this year the New York State legislature passed Governor Cuomo’s new gun control law (the SAFE ACT), which then went into effect in March of this year.  While the law contained a number of provisions that are aimed at limiting gun violence in the larger community, there are aspects of the law that, unintentionally perhaps, promote the stigmatization of people living with serious mental illness.

The stated purpose of this law is to prevent two groups of people from acquiring guns, namely “criminals and the dangerously mentally ill.” Much of the law is aimed at restrictions on gun possession generally: it limits the sale and possession of assault weapons and large magazines; it requires universal background checks for all gun and ammunition purchases in New York; and it increases the penalties for crimes using illegal guns. Oddly enough, the law also requires some homeowners to lock up or safely store any guns in their home, but only in cases where a member of the household is a convicted felon or a person who has been involuntarily hospitalized. Other people (i.e. non-felons and non-mentally ill) are not required to do anything to lock up guns safely!

The most stigmatizing effect of the law results from the fact that it adopts the same definition for “dangerous mental illness” as the criteria currently used for involuntary hospitalization. Psychiatrists and other mental health professionals are required to report the names of any patient who is found “in their reasonable professional judgment [to be] likely to engage in conduct that would result in serious harm to self or others.” Once this report is made, a Director of Community Services for the Office of Mental Health (OMH) is supposed to review the report and confirm that reporting to the state Division of Criminal Justice is necessary. The DCJ will then revoke the person’s firearm permit (if they have one) or disallow any gun or ammunition purchases. It seems unlikely that any Director of Community Services will countermand a psychiatrist’s clinical opinion, with the result that the patient’s name going on the list will likely depend simply on the decision to admit them to a hospital involuntarily. Attorneys for OMH and for individual hospitals have interpreted the law to say that the criteria for dangerousness under this law are the same as for involuntary admission. 

The VA hospitals in New York, by contrast, have announced that they will not report their patients, arguing that Federal law protecting veterans’ privacy supersedes this law. New York State maintains that the law does not violate HIPAA because it falls under the exception of being a report “required by law.” This means that the report can be made routinely without the consent of the patient. An additional concern at the VA is that many veterans, particularly those suffering from PTSD, might be deterred from seeking treatment at all out, of a fear that they could end up on a list of people who are not allowed to own guns.

From the other side of the political spectrum there has also been resistance to this law from Sheriffs’ departments in upstate New York, who have announced that they will not enforce it and, in some instances, have even gone to court with a claim that the law is unconstitutional. (Here the irony is that there are more households with guns upstate, compared to New York City, and the issue of a gun-owning suicidal patient is probably a more common clinical problem there.)  

The practical and stigmatizing effect of this law is that there will be many false positive reports of “dangerousness” into the state database, regardless of whether there is any danger of gun violence at all in a particular case. Emergency rooms in New York City can be expected to report any involuntary patient routinely, which will amount to thousands of patients each year. (The report will stay on record for five years.) For example, a young woman who never owned a gun or ever had the slightest interest in guns might become depressed and suicidal, take an overdose, and be hospitalized involuntarily. She would then be reported as “likely to engage in serious harm to self.”

The risk of a suicide using a firearm is a very serious clinical problem, requiring a careful psychiatric assessment and clinical intervention, which might include hospitalization. What is not required, however, and what is likely to be counterproductive, is the kind of wholesale, knee-jerk reaction that labels non-violent mentally ill people as if they were dangerous threats to the community.

Most Fountain House members are less likely to feel any concrete impact from this law, because they have a low rate of involuntary hospitalization. The issue of stigma and self-stigma remains very important, however, because of the labeling of “dangerousness” inherent in the law, regardless of the specific clinical condition of the individual.

Howard Owens, MD
Chair, Council for Training, Education, and Advocacy
Fountain House


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