HEALTH LAW SUPPLEMENT Spring 2013

The SAFE (Secure Ammunition and Firearms Enforcement) Act was signed into law on January 15, 2013, and contains provisions affecting mental health professionals. Those provisions are effective March 16, 2013. One provision of the Act creates what is only the second statutory reporting mandate in New York State; the other is mandatory reporting of child maltreatment (New York State has no mandatory reporting of elder abuse and no statute or case imposing any “Tarasoff”- type duty).

The new reporting duty is at Section 9.46 of the Mental Hygiene Law (MHL) and is imposed on physicians, psychologists, nurses and licensed clinical social workers. For unknown reasons, it is not imposed on licensed master social workers and mental health practitioners, which includes licensed mental health counselors, marriage and family therapists, psychoanalysts and creative arts therapists. Also, it appears to apply to “unlicensed psychologists,” which presumably means persons whose job title is “psychologist” but who don’t have State licenses and who work in exempt settings (federal, state county and municipal agencies and chartered elementary, secondary and degree-granting educational institutions).

Physicians, psychologists, nurses and LCSW’s, whatever their work setting, are required to report when in the exercise of their professional judgement, they believe an individual, whether a child or adult, who is in their care is “likely to engage in conduct that will cause serious harm to self or others.” The Office of Mental Hygiene (OMH) in attempting to clarify this standard states that it is meant to be the equivalent of the standard for emergency involuntary commitment embodied in Section 9.01 of the MHL, i.e., a clinical determination is made that the patient’s mental status creates either, “a substantial risk of physical harm to the person, as manifested by threats or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior which places others in reasonable fear of serious physical harm.” Of note is that the OMH also states that the standard is different from that for non-emergency involuntary commitment where dangerousness may be imputed even if the mentally ill person doesn’t actively display dangerous behavior, conduct or threats but has a history of dangerous conduct associated with noncompliance with mental health treatment. OMH seems to be stressing that reporting is necessary only when a patient by his or her behavior or threats poses an immediate risk of serious harm.

Note that it is not a requirement of the new law that the patient own a firearm. As with the reporting of child abuse, the State wishes to leave to itself the determination of whether the person is actually a threat by means of possession of a firearm.

To alleviate concerns about breaching confidentiality on the one hand, and failing to report based on a good faith but incorrect assessment of non-dangerousness on the other, the law grants immunity to mental health professionals who decide whether or not to report “reasonably and in good faith.” If that standard is met, there can be no civil or criminal liability on the part of the clinician. I suggest that to have the greatest chance to enjoy such immunity, clinicians document their decisions carefully and consult with colleagues and mental health attorneys to corroborate their clinical assessments and the legal standard for reporting when a possible occasion for it arises.

There is also an important exception to the reporting requirement: when in the mental health professional’s reasonable professional judgment, a report would endanger him or her or would increase the danger to the potential victim or victims. This exception would seem to apply in many instances: dangerous patients are often likely to become angered if their firearms are taken from them, and even to react violently. I think the key to interpreting the exception is similar to interpreting the law itself. The danger presented to the reporter or victim(s) must be demonstrable through the behavior or threats of the patient and pose an imminent risk. Again, documentation and consultation are, in my opinion, essential to risk management.

If a report is necessary, then it is made to the County Director of Community Services (DCS), who if he or she agrees with the report, submits it to the State Division of Criminal Justice Services (DCJS). DCJS then determines whether the reported patient has or has recently applied for a pistol permit or has registered an assault weapon. If the reported patient has a pistol permit or registered assault rifle, then the State Police and county firearms licensing officials must suspend or revoke the license and remove the pistol or assault rifle. (The report is also kept on file for 5 years in the event the person applies for a permit.) Note that in New York State (except New York City) no license or registration is required for most long guns (non-assault rifles or shotguns). So a dangerous patient with those types of firearms may go unnoticed by officials.

Of note is that nothing in the law states that officials must use the information from the report for any other purpose other than to determine if a patient owns a certain type of firearm, and if so, to suspend or prevent the license for it and/or remove it. But OMH has issued a statement that it may review the reports to determine whether involuntary hospitalization is also warranted.

A report under the 9.46 mandate is actually made, not by calling anyone as with child maltreatment, but rather online. When a report is necessary, the reporter is to go to https://nysafe.omh.ny.gov and complete the reporting form that will appear when the “9.46 Reporting” button is clicked.

The new law has no effect on the assumed duty of mental health professionals to break confidentiality and warn significant others, third-parties, and/or general law enforcement authorities when a patient presents an imminent risk of danger to self or others (there is no statute or case precedent in New York imposing such a duty but most clinicians and healthcare attorneys assume it exists). For example, if a patient jilted by his lover is assessed to present a risk to her due to threats he expresses, a 9.46 report must be made, but a “Tarasoff”- type warning may also be warranted and legally recommended to be issued to the former lover, and the police may need to be notified as well. And with a suicidal patient, in addition to the 9.46 report, significant others and the police may be contacted without the patient’s consent if they can assist in preserving the patient’s life. In such situations, it is always best to consult with a knowledgeable attorney.

Those of you who use written informed consent forms will need to add to the section on limits of confidentiality a statement such as, “I am mandated to report to the authorities patients who are at imminent risk of harming themselves or others for the purpose of those authorities checking to see whether such patients are owners of firearms, and if they are, or apply to be, then limiting and possibly removing their ability to possess them.” A similar statement should be added to the HIPAA Notice of Privacy Practices.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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