Gun Law's Focus On Mentally Ill Stirs Anger And Confusion
By James T. Mulder Syracuse Post Standard March 16, 2013
Syracuse, N.Y. – Psychiatrist Dr. James Knoll and other mental health providers have been enlisted by the state to help keep guns out of the hands of potentially violent mentally ill patients.
Under a new law that takes effect today, mental health providers are being asked to report to the state the names of patients they believe are at risk of harming themselves or others. That information will be used to determine if the patient has a gun license and, if so, to revoke or suspend the license.
If the state revokes or suspends a license, patients must surrender their firearms. If patients refuse, police would be authorized to seize their guns. That state database also will be used to block the patients if they apply for a gun license.
Patients could end up on the list without even knowing it because mental health providers are not required by the law to get an individual’s authorization or consent before making a report. The names of people reported will be maintained in a database at the state Division of Criminal Justice Services. The law requires that agency to destroy the data after five years.
The reporting is part of the state’s recently enacted New York Safe Act, passed in the wake of the Newtown, Conn. shootings.
Knoll, a forensic psychiatrist at Upstate Medical University, dislikes the reporting requirement.
“We’re being transformed into agents of the state and agents of government control,” he said.
Gun rights advocates have vehemently criticized the Safe Act since the measure was rushed into law with no public input in January by Gov. Andrew Cuomo and legislators. Although they have not been as loud, many members of the mental health community are just as passionately opposed to the law for different reasons.
Diane O’Brien, program director of Unique Peerspectives, a Syracuse support group for people recovering from mental illness, believes the law unfairly links gun violence to mental illness.
“They are profiling individuals that have mental health issues and portraying us as perpetrators instead of victims,” said O’Brien, who has suffered from mental illness.
Knoll agrees. “The majority of gun violence problems in our society simply doesn’t involve people with mental illness,” he said. “In the aftermath of tragedies everyone wants to reach for obvious handles to grab the problem by, even if they are illusory or not real. Mental illness is one of those illusory handles.”
Research shows a small percentage of people with serious mental illness commits acts of violence. A 2006 study published in the American Journal of Psychiatry estimated people with severe mental illness commit about 5 percent of violent crimes. A National Institute of Mental Health study found the prevalence of violence among individuals with serious mental illness, such as schizophrenia and bipolar disorder, was 16 percent, compared with 7 percent among people without any psychiatric illness. That study also found drug and alcohol abuse is far more likely to lead to violent behavior than mental illness.
Harvey Rosenthal, executive director of the New York Association of Psychiatric Rehabilitation Services in Albany, said the mental health provisions in the Safe Act are “criminalizing mental illness.”
“I do believe in gun control,” Rosenthal said. “But I just feel we’ve been put in the crosshairs as the cause of violence.”
Some gun control groups have pushed for tighter background checks to prevent seriously mentally ill people from buying guns. Federal law forbids anyone from possessing guns if they have been involuntarily committed to a mental institution, found to be a danger to themselves or others or to lack the ability to manage their own affairs because of mental illness.
Mayors Against Illegal Guns, a group of U.S. mayors led by New York City Mayor Michael Bloomberg, issued areportin 2011 that found many state and federal agencies ignore that law by failing to send records about dangerous people to a national database known as the National Instant Criminal Background Check System.
The report cited the 2007 case of Seung Hui Cho, who shot and killed 32 people at Virginia Tech before taking his own life. Two years earlier a judge found Cho to be mentally ill, but the records were never sent to the NICS background check system. Cho passed several gun background checks in the months leading up to the mass shooting.
Bloomberg praised the SAFE Act in Albany in January while testifying on the state budget. “Making guns harder to get and restricting guns from going to minors and to people with criminal records, substance abuse problems or mental problems really does have a real world effect on keeping us all safe,” he said.
Knoll of Upstate disagrees. “Focusing on persons with serious mental illness is not going to be a high yield intervention,” he said.
Under the new law, psychiatrists and other medical doctors, psychologists, registered nurses and licensed clinical social workers are required to report patients “likely to engage in conduct that would result in serious harm to self or others” to their local director of community services.
In Onondaga County those reports will go to Robert Long, the county’s commissioner of mental health. His office will review the reports and determine if they should be forwarded to the state Division of Criminal Justice Services.
Reports sent to that state agency can only contain non-clinical identifying information about the patient such as date of birth, Social Security number, race, sex and address.
Rosenthal of New York Association of Psychiatric Rehabilitation Services is uneasy about the idea of the state keeping a massive database with information on people who are mentally ill.
“When you share something with a therapist, you don’t think you are going to end up in a government registry,” Rosenthal said.
He fears the state could use the registry for purposes other than determining if people have gun licenses. “It creates a real chilling effect in the mental health community,” he said.
Knoll said the reporting requirement is vague and fails to clearly define what should be reported. The law says mental health providers are required to make a report when they believe a patient “… is likely to engage in conduct that would result in serious harm to self or others.” The problem is the law does not say if the potential harm must be imminent or something that could occur well into the future, he said.
Long, the county’s mental health commissioner, agrees. “The definition of what should be reported is subject to interpretation,” he said.
Long said he fears the law will heighten the stigma surrounding mental illness and deter some people who are mentally ill from seeking treatment.
The law is also confusing because in one section it says mental health providers are required to make these reports. In another section it says providers will not be held liable if they don’t.
Cuomo, who championed the Safe Act, said last week the law “ ... leaves it totally up to the mental health provider if they want to come forward or not - totally up to them.”
Cuomo made that comment in response to an announcement by the U.S. Department of Veterans Affairs that it will not comply with the reporting requirement.
The VA said federal laws safeguarding the confidentiality of veterans’ treatment records do not authorize VA mental-health professionals to comply with the Safe Act.
The Safe Act also expands Kendra’s Law, a measure which allows judges to order treatment for seriously ill individuals who refuse treatment. That state law, passed in 1999, is named after Buffalo native Kendra Webdale, who was pushed to death in front of a Manhattan subway train by a man with untreated schizophrenia.
The Safe Act extends court-ordered treatment plans from six months to a year. It requires that the patient be assessed at the end of 12 months to determine if the order should be continued. The Safe Act also makes court-ordered treatment plans issued in one county transferrable to another county if the patient moves. The Safe Act also extends Kendra’s Law, which was set to expire in 2015, to 2017.
Over the past 12 months, courts forced 2,880 state residents- 15 of them in Onondaga County- into outpatient treatment, according to the state Office of Mental Health.
Some mental health groups like New York Association of Psychiatric Rehabilitation Services oppose court mandated treatment and are upset the SAFE Act was used to strengthen Kendra’s law.
“We’ve been opposed to court-mandated treatment since its inception,” said Rosenthal, who heads that group. “It’s a poor substitute for a better mental health system.”
Knoll of Upstate said he’s uncomfortable with the notion of mental health providers serving as agents of the state.
“Our pure function is to assist patients and help them relieve their pain and suffering and walk along with them on their path through life as guides, not as agents of control,” he said.
Related story: Questions and answers about the new law requiring mental health providers to report potentially violent patients.