Editorial: A valid concern over NY-SAFE Act Mandatory reporting provision needs revisit A Journal News Editorial March 13, 2013
It’s easy to understand why Gov. Andrew Cuomo railroaded New York’s new gun-control law through the Legislature: Any delay might have been used by foes to weaken the measure, which as its centerpiece includes a ban on assault weapons - among many new restrictions likely to elude gun-control advocates in slower-moving Washington. Expediency, however, did not serve the NY-SAFE Act entirely well.
Evidence of that - on top of procedural and other flaws already raised by foes - comes from the U.S. Department of Veterans Affairs, courtesy of New York World, the “accountability journalism” project of Columbia Journalism School. The VA said it will not comply with a new state provision requiring mental health providers to report potentially dangerous individuals to state authorities - information slated to be included in a new, comprehensive state database of licensed gun owners.
Epidemic of suicides
This is no incidental refusal, inasmuch as the military and VA have been battling an epidemic of suicides by firearms among current and former service members. The legislation calls upon mental health professionals to report to the government “when there is reason to believe a patient is likely to engage in conduct that will cause serious harm to themselves or others.” The information will then be crosschecked against the new gun registration database. If the patient possesses a gun, the license will be suspended and law enforcement will be authorized to remove the weapon.
VA spokesman Mark Ballesteros, whose email was quoted in a New York World article published by the Albany Times-Union, stated that “federal laws safeguarding the confidentiality of veterans’ treatment records do not authorize VA mental health professionals to comply with this NY State law” - a predictable roadblock given the supremacy of federal confidentiality provisions. What might leave mental health officials scratching their heads - whether they work for the VA or not - are comments Monday from Cuomo about their reporting duties. He suggested the professionals have considerable discretion in reporting. Cuomo mightthink that is the case - the law was hastily introduced, passed and signed over the course of a scant two days- but it isn’t. The provision, which takes effect Saturday, makes plain that reporting is mandatory, absent narrow exceptions.
“You know, I really don’t know the specifics, but first of all what the law says is it leaves it totally up to the mental health provider if they want to come forward or not - totally up to them. It’s volitional on their part,” Cuomo said after a cabinet meeting, as reported by the Times-Union. “And then depending on the institution or the organization, they may have preexisting legal parameters. Some organizations just say, beginning of the day, all communications are confidential, period, all information is confidential, period. So it’s going to have to be viewed in the light of their legal structure in the first place. But it’s up to them.”
The actual instructions to mental health professionals - posted online - leave no doubt about the mental-health professional’s obligations. They bring New York right back to square one - the too-brief debate over the N.Y. Secure Ammunition and Firearms Enforcement Act in December. During the run-up to passage, some mental-health professionals worried that the mandatory reporting would discourage people from seeking treatment or from being candid with their therapists - for fear that doing so could lead to their firearms being confiscated.
Mental-health professionals have long had a duty to protect potential victims of a patient, but there have been several suitable avenues for doing that short of reporting the patient to the government. Those well-reasoned concerns about the mandatory reporting have not gone away - perhaps one example where more time and due diligence might have created space for a more forward-looking law.
“There is a chilling effect on people getting care, and we’re particularly concerned about veterans,” John Richter, director of public policy at the state Mental Health Association, told New York World.
“We have a hard enough time getting veterans in for [post-traumatic stress syndrome]. Veterans are a prime example of someone who would have a disincentive to go.” State officials, with an eye toward ensuring people who need treatment are getting it, should be mindful of the concerns and be quick to revisit the law as circumstances warrant.