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The New York SAFE Act: New duties for psychiatrists?


 

This week, the state of New York passed the Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 in response to the December shooting at Sandy Hook Elementary School in Newtown, Conn. This act, which was promptly signed into law by Gov. Andrew M. Cuomo, is one of the earliest legislative responses to this incident but it surely won’t be the last. Many people are scrutinizing it in anticipation of their own pending legislation.

I’ve heard a lot of discussion among my colleagues about what a law like this might mean for clinical practice, so I thought I would review it for myself. I’m not an attorney, and I’m sure some nuances of the law may eventually be addressed through the court system, but here are my initial impressions.

First, many of the provisions seem pretty reasonable: a limit on who can purchase weapons, or a revocation of licensure, for anyone convicted of certain violent offenses or for anyone against whom a protective order was granted. Some of the listed crimes, such as stalking and violation of a protective order, seem particularly geared toward domestic violence offenders.

In what I suspect will be a plus for abuse victims, the law now requires protective order respondents to surrender their weapons and the judge granting the order to revoke the firearm license of the respondent. Although laws vary between states, some states currently don’t grant police the authority to confiscate the weapons of domestic violence offenders pending a conviction. I think limiting access to weapons in a household with this level of conflict is probably a good thing. It also might save a few people from getting shot at the door of the courthouse following a custody hearing.

Consistent with other states, New York now will revoke the license of anyone placed under guardianship due to psychiatric or developmental disability, as well as for anyone civilly or criminally committed to a psychiatric hospital. What was unclear to me was the mechanism by which the authorities would ensure that the weapon(s) were in fact removed, but maybe those are details that remain to be worked out.

The aspect of the law that has drawn the most attention from my psychiatric colleagues, as well as from the media and the general public, is the requirement that mental health practitioners report suspected dangerous patients to authorities. This raised an obvious degree of alarm along with attendant fears of further stigmatization of psychiatric patients.

Here’s what Mental Health Law 9.46 actually says:

“Notwithstanding any other law to the contrary, 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 others, he or she shall be required to report, as soon
as practicable, to the director of community services, or the director’s
designee, 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.” (emphasis added)

OK, there's a little more nuance to this than what has been reported in the traditional media. The clinician is not required to report patients directly to the police, and in spite of the apparent mandatory language might not be required to report to the firearms regulators at all. The “mandatory report” must be to the clinician’s director, who then reviews the case and determines, using reasonable professional judgment, whether the risk is sufficient to warrant a revocation of a licensed firearm. The language of the immunity clause additionally supports this permissive interpretation:

“The decision of a mental health professional to disclose or not to
disclose
in accordance with this section, when made reasonably and in
good faith, shall not be the basis for any civil or criminal liability
of such mental health professional.” (emphasis added)

In either case, the law is clear that the only information to be disclosed is non-clinical, identity-based information. The agency receiving the information is required to destroy it after 5 years, or upon restoration of legal gun ownership rights. This is not a label that will be placed upon someone forever. Before I read the law I shared the concerns of my colleagues that this would lead to a tremendous expansion of a Tarasoff duty, but it appears that it stayed more true to the original New York Tarasoff law than I expected. The New York medical confidentiality laws permit disclosure of patient information to the police when the danger is “serious and imminent,” but does not mandate disclosure.

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