Three months ago the Secure Ammunitions and Firearms Enforcement (SAFE) Act was implemented in NY after the tragic shooting at Sandy Hook Elementary School in Newtown, Connecticut. It is a sweeping gun control law that was backed by Gov. Andrew Cuomo from the outset. Pursuant to the Act, NY health professionals must report mentally ill patients that are potentially dangerous to a state database. Mentally ill patients are considered dangerous if they are “likely to engage in conduct that will cause serious harm to self or others.” However some health professionals claim that the term “likely” is nebulous at best. At a State Assembly committee hearing held on June 1, 2013, Dr. Glen Martin, president of the New York State Psychiatric Association (NYSPA), stated, “‘[l]ikelihood’ isn’t a standard that we work with. We are not very good at predicting violence at any point in the future.”
In addition, Beth Haroules, senior staff attorney at NYCLU stated, “[t]he NY SAFE Act requires psychiatrists, psychologists and other mental health professionals to report a patient they deemed dangerous, even if that mental health clinician believes that the patient would respond well to treatment and has no reason to believe the patient owns a gun.” Therefore, according to her statement and others made at the hearing, the law is over-inclusive. Jed Wolkenbreit, counsel to the New York State Conference of Local Mental Hygiene Directors, Inc., said that the “flood” of SAFE Act reports diverts county commissioners from completing other duties, and for a very small return for their efforts. He cited figures from the state Office of Mental Health when he said, “[o]f the 6,000 reports that have been filed, 11 have been acted upon.”
Wolkenbreit testified also that even though the report must be filed by a health professional some reports appear computer generated, or have been filed by someone other than the mental health provider. According to Wolkenbreit many mental health providers who purportedly filed reports were contacted via telephone for a review of the reports, but the providers claimed either that they had never filed the reports or that the patient did not meet the reporting requirements under the SAFE Act.
The hearing was held by NY Senator David Carlucci (D-Rockland/Westchester), who chairs the Senate Mental Health and Developmental Disabilities committee. At the hearing mental health providers and civil libertarians gave the testimony from which the data emerged, however “New York City has been the source for a majority of the reports.” Officials from the Office of Mental Health and Department of Criminal Justice Services received invitations to the hearing but did not attend, though they help administer the Act. The Department of Criminal Justice states that it will only disseminate information in accordance with the Freedom of Information Act (FOIA). FOIA requires the party seeking information to submit a formal request to the Department of Criminal Justice stating the reason for the request.
Other issues arose in the hearing as well. The NYSPA has filed a complaint with the U.S. Department of Health and Human Services Office for Civil Rights, claiming that the law potentially violates HIPPA, while other health professionals claim that this law prevents the mentally ill from seeking treatment. Still others claim the law creates a stigma injury that criminalizes the mentally ill by linking gun control to mental illness.
Benjamin Rosen is a spokesperson for the Office of Mental Health, and in an email he acknowledged that from March 16 to May 6 patients were referred automatically to county officials based upon admission status, “although mental health professionals had the ability to prevent reports from being forwarded.” He then stated that most would have met the SAFE Act criteria anyway, and counters criticism of the Act by noting that mandatory reporting requirements have long been in place for sex offenders as well as under common law pursuant to the Tarasoff decision.
However, “[t]he state psychiatric hospitals stand in contrast to the U.S. Department of Veterans Affairs, which has said that its medical professionals will not comply with the SAFE Act.” Mark Ballesteros is the spokesperson for the Department of Veterans Affairs, and he maintains that the Constitution bars the Department’s compliance with the Act. In an email he stated, “[f]ederal laws safeguarding the confidentiality of veterans’ treatment records do not authorize VA mental-health professionals to comply with this NY State law.”