New York Association of Psychiatric Rehabilitation Services on SAFE act concerns

NYAPRS Note: Concerns continue to be raised with the NY SAFE Act's mental health reporting requirements. Here are North Country pieces that include concerns raised by Clinton County Community Services Director Sherrie Gillette, BHSN's Peter Trout, who also serves on NYAPRS' Executive Committee and by staff from NYAPRS and the Mental Health Empowerment Project.

Mental-Health Agencies Eye New Gun Law
By Felicia Krieg Plattsburth Press-Republican June 18, 2013

PLATTSBURGH - While local mental-health providers comply with the dictates of New York's new gun law, some feel serious concern about it.

The NY SAFE Act added section 9.46 to the state's Mental Hygiene Law, which, as of March 16, made it mandatory that physicians, psychologists, registered nurses and licensed clinical social workers report patients who are "likely to engage in conduct that would result in serious harm to self or others."

"I'm really concerned that people will become fearful about coming to services or maybe won't access services ... or they may be less forthcoming with clinician," said Sherrie Gillette, director of community services at Clinton County Mental Heath and Addiction Services.

"If the person has a mental illness, we certainly want to be able to provide services to them in a safe environment where they feel protected."

The legislation, prompted by the Sandy Hook Elementary School massacre and other shootings, aims to take weapons out of the hands of those who, its crafters say, are most likely to perpetrate gun violence.

'JUDGMENT CALL'
Gillette's office is recipient of reports from Clinton County providers.

If she agrees that the reported person is likely to engage in potentially harmful activity, she submits a secure online form to the New York State Division of Criminal Justice Services, which determines whether the person has a firearms license.

If so, State Police notifies the county licensing official, who suspends or revokes the license and has local law enforcement remove the guns, the Office of Mental Health said.

According to the SAFE Act's reporting stipulations, a person's behavior must justify the need for immediate action to ensure the safety of the public and can include threats or attempts at suicide or serious self-inflicted bodily harm or homicidal or violent behavior toward others, the State Office of Mental Health says on its website.

Mental-health professionals are required to use "reasonable professional judgment" when deciding whether to report someone, the Office of Mental Health says.

"It would mean a judgment call every single time," Gillette said.

'MORE LIKELY A VICTIM'
She understands the need to take some kind of action to prevent future shootings, she said.

"No one wants to see these horrific gun slayings that have happened in our country."

But the "clear majority" of shootings in the United States are perpetrated by people who do not have mental illness," she said. "I think that the person with mental illness is far more likely to be a victim than a perpetrator."

According to the National Alliance for the Mentally Ill, people with mental illness are 10 times more likely to be the victims of violence when compared to the general population.

In 2006, the Institute of Medicine concluded: "Although studies suggest a link between mental illnesses and violence, the contribution of people with mental illnesses to overall rates of violence is small."

Sharon Schmidt-Twiss, director of behavioral health services at CVPH Medical Center, agrees that the clause could keep people from seeking services.

"Even one patient - that's a terrible loss," she said.

And it "further stigmatizes individuals," Behavioral Health Services North Chief of Operations Peter Trout said.

LEGAL INQUIRY
On April 1, attorney Jacqueline Kelleher at Stafford, Piller, Murnane, Kelleher and Trombley law firm in Plattsburgh submitted a formal inquiry to the Office of Mental Health regarding SAFE Act reporting.

"There's a lack of due process" in the law, she said.

People aren't notified that they're being reported and aren't given a chance to respond to the situation, Kelleher said.

"I think there's not a problem with gun control, but it should be done fairly."

The Health Insurance Portability and Accountability Act (HIPAA) allows for informational disclosures to be made without the patient's consent if they are required by law, the Office of Mental Health said.

And it says that, if the judgment is made in good faith, the provider's decision "cannot be the basis for any civil or criminal liability on the part of that professional."

But it doesn't seem that straightforward, Trout said.

"Attorneys have advised us that the law doesn't adequately address HIPAA."

BHSN will not release any clinical information unless the patient consents to it, he said.
That agency reports demographic information, including the name, address and date of birth of the patient, to Gillette's office, Trout said.

He noted that, under the law, only a small number of Behavioral Health Services North's staff are required to report.

'FAIR PERCENTAGE'
In an emergency room or a psychiatric unit, it's not unusual for mental-health patients to say they want to hurt themselves, Gillette said.

That is often the reason people are admitted into the hospital in the first place, Schmidt-Twiss said.

So, a "fair percentage" of mental-health patients at CVPH are reported to Gillette, she said.

She estimated CVPH conducts about eight to 10 mental-health "crisis evaluations" each day, and, of those, about half are admitted to be treated, although statistics vary widely.

SECURITY
The Office of Mental Health told the Press-Republican that fewer than 10 percent of the approximately 170 employees of the Division of Criminal Justice Services Office of Criminal Justice Operations who have confidential access to the agency's data are able to access the reports, which do not contain any clinical or medical history.

The reports will not be kept in an online database, the agency said.

'THE WHOLE PICTURE'
Prior to the passage of the SAFE Act, the state's Mental Hygiene Law authorized health-care providers to issue an order that, if approved by the director of community services, would allow police to transport someone to a hospital emergency room for evaluation if the person appeared to be mentally ill and an imminent danger to self or others, Gillette said.

Police also have legal clearance to execute a pickup order, she said, though it is issued only if there is no other way to ensure the patient will seek treatment, she said.

"We'd prefer that the person would just go the emergency room," Gillette said.

While the number the orders her office issues each year varies, it's usually around 50, she said.

Since the SAFE Act reporting requirements are so new, it's difficult to assess its impact thus far, Gillette said.

But she doesn't think that gun law is the answer to protecting the public from violent criminals who use guns to hurt others.

"I'm not sure that this is it. In fact, I'm pretty sure this is not (the answer).

"The thing is, when you look at the whole picture ... what is the whole picture telling you?" she said. "It's a much larger issue than people who have mental illness who present a risk.

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The Gun Law Rubber Hits The Mental Health Road
by Nora Flaherty North Country Public Radio June 18th, 2013
[Mental health advocates protest the NY-SAFE Act in March, 2013 at a state hearing. Photo: Karen DeWitt]
Mental health advocates protest the NY-SAFE Act in March, 2013 at a state hearing. Photo: Karen DeWitt

Hey, remember back when New York's new gun law, the NY-SAFE Act, passed the legislature, and then Gov. Cuomo signed it really fast by invoking the message of necessity? A lot of people, even some who weren't opposed to what was actually in the new law, were rather put out by that, and ultimately the state did find itself in a position of having to reconsider some parts of the bill.

One group that's been particularly concerned about some provisions in the new law is mental health advocates, who have made arguments that people with mental illness are unfairly stigmatized by certain aspects of NY-SAFE. At the time, Harvey Rosenthal, of the New York Association of Psychiatric Rehabilitation Services, said in a story reported by Karen DeWitt (link above) that

"The environment of criminalization and demonization of people with mental illnesses has really reached a peak here in Albany...I've never seen it like this."

Rosenthal went on to say that the law, which requires therapists and other clinicians to report patients to a state centralized database if they might be a threat to themselves or others, after which authorities could take away patients' guns, could damage the relationship of trust that (ideally) exists between therapists and patients.

"It makes people not want to share or go to therapy...and that's the exact opposite of what we should be trying to do right now."

Anyway, that was back in early March. Now it's been a couple months since those provisions took effect, and mental health agencies are starting to figure out how to work with them. An article in the Plattsburgh Press-Republican describes how the system works, and how providers are feeling about it. I won't go into the details here, but there's a lot of judgment calls involved, and a lot of potential pitfalls in what's proving to be a complicated reporting system.

Sherrie Gillette, director of community services at Clinton County Mental Health and Addiction Services, is quoted in the article saying that while she understands the need to take action to prevent future shootings, "the person with mental illness is far more likely to be a victim than a perpetrator." Patients also aren't notified that they're being reported, and there's no opportunity for them to respond to the situation, the article says. It's also worth mentioning that a high percentage of those who seek mental health services, particularly emergency or inpatient services, express a desire to harm themselves (more on the NY-SAFE Act from the New York State Office of Mental health here.)

Gillette says with the law being so new, it's hard to say what the impact has been so far. But she says she doesn't think it's the solution.