NYS Gun Control Deal Expands but Doesn't Make Permanent Kendra's Law; MH Professionals' Reports to be Used to Remove Guns

NYAPRS Note: Forged in the crucible of media, policy maker and the gun control lobby’s linkages between several recent violent tragedies and mental illnesses, New York State is about to approve legislation that will expand but not make permanent Kendra’s Law court mandated treatment program and to require mental health professionals to notify authorities about people considered to be potentially dangerous to self or others, with the goal of taking away their guns or gun licenses.

The state’s urgency to promptly pass ‘the strongest gun control legislation in the nation’ accelerated negotiations over the past few weeks and made the bill’s passage the first business of state legislators on the opening days of the 2013 legislative session. State Republican Senate leaders had insisted that any gun control deal include a Kendra’s Law expansion, a measure that been pushed furiously by NYC tabloids in recent weeks with outrageous headlines like ‘Here Come the Crazies’ and ’11,000 Psychotics on the Streets.’

Mental health professionals’ heightened reporting requirement are expected to have a chilling effect on people seeking and engaging in treatment; as Dr. Paul Appelbaum told the Times, “the prospect of being reported to the local authorities, even if they do not have weapons, may be enough to discourage patients with suicidal or homicidal thoughts from seeking treatment or from being honest about their impulses.”

Once again, state and national mental health recovery and rights proponents are confronted by the work that must regularly be done to educate the public about the false, sensationalized connections between violence and people with psychiatric conditions who comprise 1/5 of all Americans...and the work that must be done to expand an increasingly broad array of voluntary services and supports that are very effective in helping to engage and serve young people and adults in need. See more here in the coming days...

 

Cuomo, Legislature Reach Gun Control Agreement

That Expands Kendra’s Law But Doesn’t Make it Permanent

NYAPRS E-News   January 15, 2013

 

Governor Cuomo and the NYS Legislature reached a gun control agreement last night that was passed by the Senate by a vote of 43-18 and is on schedule to pass the Assembly today. The agreement, called the ‘strongest gun control bill in the nation,’ will change state mental health practices by expanding but not making permanent Kendra’s Law court ordered treatment program and by charging mental health professionals with the responsibility to report to county authorities whether someone they’re treating is considered a danger to self or others, with the goal of talking away their guns and gun licenses.

 

The bill has the following impact on Kendra’s Law:

  • Extension not Permanence: the bill extends Kendra's Law two years, from its previously authorized sunset date of June 30, 2015 to June 30, 2017. For perhaps the 5th time in its 14 year history, the Legislature has recognized the controversial nature of this program by rejecting calls to make this involuntary outpatient commitment program the permanent law of the state. This allows the state to evaluate and compare the impact of the Governor’s strong voluntary behavioral healthcare reforms with the court ordered approach over the next 4 years (see http://www.timesunion.com/opinion/article/Mental-health-reform-crucial-4181052.php).
  • It extends the duration of the initial assisted out-patient treatment order from 6 months to up to one year;
  • It requires a review within 30 days before the out-patient treatment order expires by the local director of community services as to whether the individual “continues to meet the criteria for assisted outpatient treatment.” If they think the person does meet this criteria,  the director may  petition the court to once again order mandated treatment.  
  • It requires the authorization of the Kendra’s Law treatment order to cross county lines if individuals change residence (the order was formerly limited to the county that originally authorized it).
  • It requires that, prior to discharge of an “inmate  committed from a state correctional facility from a hospital in the department of  mental  hygiene”  to  the community, the director of that facility shall ensure that a clinical assessment has been completed to determine whether  that inmate meets  the criteria for a Kendra’s Law court ordered treatment plan. By our reading, the only state correctional facility that discharges inmates from an OMH hospital is Central New York Psychiatric Center.

 

The bill will also “help ensure that persons who are mentally ill and dangerous cannot retain or obtain a firearm.”

 

  • Towards these ends, reports of people who have been involuntarily committed for inpatient psychiatric care that are currently part of the federal background checks system that is used to deny gun sales (NICS or National Instant Criminal Background Check System), will now also now be housed in a New York State database.
  • Mental Health professionals will now be required to report people they believe may be a danger to self or others with a goal of removing their guns and gun licences, by the following process:
  • Mental health professionals (specifically defined as a physician, psychologist, registered nurse or licensed clinical social worker) who, in the exercise of “reasonable professional judgment”, determines that a client is likely to engage in conduct that would result in serious harm to self or others, is required to make a report, as soon as practicable, to the director of community services (county directors of mental health and sometimes substance use and developmental disability services).
    • This law does not require a mental health professional to take any action which, in the exercise of reasonable professional judgment, would endanger themselves or increase the danger to a potential victim or victims.
    • Mental health professionals’ decisions in this regard, “when made  reasonably  and  in good  faith,” shall not be the basis for any civil or criminal liability on their part.
  • County directors of community services must then make a report (of only the name and non clinical identifying information) of such individuals) to the state Division Of Criminal Justice Services (DCJS), “if they agree that the subject of such a report is likely to engage in such conduct.”
  • DCJS will then use this information to determine whether  a  gun license issued  to this individual should be suspended or revoked, and/or consider that person ineligible for a gun license 
  • DCJS will then notify the appropriate local licensing official, who must suspend the license and notify law enforcement personnel who will see that the person's firearms are removed.

 

Noted authority Dr. Paul S. Appelbaum, the director of the Division of Law, Ethics, and Psychiatry at the Columbia University College of Physicians and Surgeons was told the New York Times that such a requirement “represents a major change in the presumption of confidentiality that has been inherent in mental health treatment,” and said that the Legislature should hold hearings on possible consequences of the proposal. “The prospect of being reported to the local authorities, even if they do not have weapons, may be enough to discourage patients with suicidal or homicidal thoughts from seeking treatment or from being honest about their impulses,” he said.

http://www.nytimes.com/2013/01/15/nyregion/new-york-legislators-hope-for-speedy-vote-on-gun-laws.html?_r=0&pagewanted=all

 

The Kendra’s Law expansion did not include a number of provisions sought by its proponents:

  • It doesn’t make Kendra’s Law permanent.
  • It doesn’t require Kendra’s Law evaluations to be made on every prison or jail inmate with a mental health treatment history or diagnosis who is about to be discharged.
  • It does not require Kendra’s Law evaluations for involuntarily committed people who are being released from state or local hospitals.  

 

The bill curiously appears to indicate that “any costs related to this bill will be paid out of the Division of State Police capital budget.” Advocates are very concerned about further financial costs being passed onto heavily overburdened state and local mental health budgets.

 

The bill text and memo can be found at

http://www.assembly.ny.gov/leg/?default_fld=&bn=A02388&term=&Summary=Y&Memo=Y&Text=Y#jump_to_Memo