NYAPRS Note: New York’s SAFE Act requires clinicians to report the names of individuals who describe impulses to harm themselves or others ultimately to a state registry for the purposes of canceling gun permits and possessing their firearms. But the law appears vague in ensuring that this information is absolutely only used for these purposes and is not shared more broadly with state police and others for broader, unintended purposes. Advocates are working hard to close these loopholes. Stay tuned…
N.Y. State Law Prompts MH Community to Address Service Access, Stigma
Mental Health Weekly February 11, 2013
In the few weeks since a new gun control law was passed and signed by Gov. Andrew Cuomo, the mental health community is having discussions with legislators and hosting public forums amid concerns that the legislation perpetuates stigma and creates barriers for those seeking care.
New York state on Jan. 16 became the first in the nation to pass a new gun-control law, the Secure Ammunition and Firearms Enforcement (SAFE) Act. Among its provisions, and the one that causes the most concern for the mental health community, is a requirement that therapists, social workers and other mental health professionals report to county mental health directors whether they believe a patient is dangerous.
Meanwhile, legislation to revise existing mental health laws is currently under consideration in at least a half-dozen states, including Colorado, Oregon and Ohio, the New York Times reported.
According to the SAFE Act, “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 other, he or she shall be required to report, as soon as practicable, to the director
of community services, or the director’s designees, 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.”
The legislation goes on to note that information transmitted to the Division of Criminal Justice Services would be limited to names and nonclinical identifying information, which may only be used to determine whether a person is ineligible
for a license or is no longer permitted under state or federal law to possess a firearm.
“We’re trying to amend the current law,” Glenn Liebman, CEO of the Mental Health Association in New York State (MHANYS), told MHW. “We’re having discussions with administrators in Albany, the state legislature, and through public education.”
Liebman said MHANYS is also voicing its concerns about the SAFE Act and the repercussions around mental health and privacy issues through community forums. “There are better ways to handle the mental health portion of this bill,” he said.
Liebman said he hopes conversations he and his colleagues are having will promote change in the law and “make it less onerous for people with mental illness.”
Concerns about the SAFE Act include the impact it might have on the therapeutic relationship integral to an individual’s recovery, said Liebman. “This legislation gives us a venue to talk about this,” he said.
“People with mental illness are no more violent than the general population,” he said. Research has shown that 12 percent of people with mental illness are more likely to be victims of violence, Liebman said. “Whenever these terrible tragedies occur, sometimes mental illness is front and center,” he added.
Liebman added that the goal of their discussions with lawmakers is to ensure that it is not difficult for people with psychiatric disabilities to seek help. “We want to talk about things that work for people, and about services that lead to recovery, such as peer support, care coordination, housing and access to medications,” he said.
“Now that the legislation has passed, we think we can work through the regulations process to make it less difficult for people who have mental illness,” said Liebman. “We want to make sure they are treated like everybody else in the
general population around gun ownership.”
Service, not coercion
The SAFE Act also includes a measure that strengthens Kendra’s Law - a New York state law concerning involuntary outpatient commitment. Kendra’s Law grants judges the authority to issue orders that require people who meet certain criteria to regularly undergo psychiatric treatment.
The SAFE Act would extend the maximum term of forced treatment orders from six months to one year, Harvey Rosenthal, executive director of the New York Association of Psychiatric Rehabilitation Services, Inc. (NYAPRS), told MHW. “We shouldn’t be looking at expanding coercion as a means of engaging people [in treatment],” he said. “We have objected to the use of coercion. It is not a substitute for good and active mental healthcare. A coercive court
order is not the way to go.”
“In our rush to be the first state to [pass] this kind of gun law, some things were sacrificed,” said Rosenthal, who added concerns about confidentiality issues. “We believe raising the level of reporting required by clinicians will not only prevent consumers with mental illness from seeking treatment, but it may also prevent them from fully disclosing information while in treatment.”
Rosenthal added, “This adds another wrinkle for people with mental illness. This legislation has the unintended effect of driving people away from seeking help.”
Currently, there are not nearly enough services in the community that really engage a person, said Rosenthal. “While the Newtown tragedy has focused positive attention on mental health treatment, it has also created a false link between
mental health and violence,” he said.
“It’s heinous how gun lobbyists work so hard to turn this into a mental health issue and to criminalize people with mental health issues,” said Rosenthal. “I’ve been in this field for nearly 40 years and have never seen this [kind of] vitriol aimed at our community.”
“We want to emphasize from a national perspective that we need to be careful to distinguish mental illness from dangerousness,” Stephen Behnke, JD, Ph.D., director of the Ethics Office at the American Psychological Association (APA), told MHW. “These two are not the same; we want to be sure to keep them separate.”
Behnke said there are already laws around the country that require a mental health professional to take action when a patient has threatened an identifiable person with harm. “Many states require or allow a mental health professional to report an individual who might be perceived as dangerous,” he said, citing the Tarasoff case in California.
Tarasoff v. Regents of the University of California was a Supreme Court case in 1974 that held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. According to the case, the professional may discharge the duty to protect in several ways, including notifying the police, warning
the intended victim and/or taking other reasonable steps to protect the threatened individual.
“The court held that protective privacy ends where safety begins,” said Behnke. “In mental health we have a long history of saying that mental health professionals have a duty to protect the safety of an individual who is threatened by a patient.”
“The unintended effect of such a law is that the very people who could benefit from treatment are afraid of stigma and being labeled as dangerous,” he said. “We are now going to cast a wider net; that might have the opposite effect of discouraging someone from coming into treatment.”
“At the APA, our position is that it is so important that laws be drafted thoughtfully in consultation with mental health professionals [about] how the law might affect their ability to provide treatment to individuals who could benefit,” Behnke said.