by Robert B. Young, MD
Longer version online Jan. 14, 2016 on DRGO.us
President Obama loves using executive actions to “take action when Congress won’t”. Now he’s doing that to pursue gun control when Congress (and the country) has made it clear that its not interested. Does he like being distrusted, in this case by promoting direct reporting by psychiatrists to the NICS?
This isn’t easy material to cover. In fact, it can be excruciating. It required watching the Jan. 5 White House press conference and then CNN’s Jan. 7 Guns in America town hall from George Mason University. It meant reading the President’s Jan. 7 opinion piece in the New York Times, “Guns Are Our Shared Responsibility” and all 56 pages of the federal Department of Health and Human Services Final Rule 45 CFR Part 164, Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and the National Instant Criminal Background Check System (NICS), published Jan. 6.
This has created great concern that physicians and mental health care providers will start reporting everyone’s mental illnesses to the FBI for addition to the NICS. We all want to prevent people having guns when there is good reason, but the prospect that anyone in emotional distress could be prohibited from gun ownership is cause for anxiety. That would devastate the confidentiality necessary to the trusting relationships that therapy requires.
Yet only a tiny fraction of violence is committed by the mentally ill, people who are far more likely to become victims. Half of all Americans experience at least one episode of diagnosable psychiatric illness during their lifetimes. Prohibiting all of those would over time vastly reduce the number of Americans who retain their constitutional right to keep and bear arms.
The fear of their guns being confiscated could also lead to people avoiding mental health treatment, perhaps those at highest risk of violence. That would reverse the gains we’ve made fighting the stigma of psychiatric illnesses and their treatment. The good news is that this new HHS Rule does not mandate anything. It defines a very limited change to current confidentiality requirements.
As it is, anyone who has been committed involuntarily to a psychiatric facility or who has been determined by a court to be “mentally defective” (i.e., unable to be responsible for themselves due to mental illness) is supposed to be listed in the NICS as prohibited. This information should already be tracked and reported by each state although for a variety of reasons, this has not happened consistently.
The new rule amends HIPAA to “permit” (not require) professionals who have the legal authority to adjudicate or to involuntarily commit patients, or agencies that lawfully collect such information, to make reports on their prohibited status to the FBI for the NICS. That generally means only courts, psychiatrists, and the directors of state and county mental health departments.
This rarely includes other physicians and does not include any other mental health treatment providers (psychologists, social workers, counselors, etc.). It allows only identifying data to be reported, without any diagnosis or clinical information. So to the extent this happens, it would just be more likely that people who are supposed to be legally prohibited will be listed.
“To the extent this happens” is a big “If”. Physicians are fierce protectors of patient privacy, knowing the harm that violating that can cause. It is not likely that psychiatrists or other physicians will want to provide such information even though permitted to now.
HIPAA regulations strictly limit how patient information can be communicated. There are emergency circumstances in which providers may have the duty to try to warn or protect others whom their client specifically threatens, but this is rare and involves patients already known to treatment. There is no reason for firearms owners to avoid seeking treatment for any psychiatric problem.
A much greater concern should be the absence of due process for non-judicial additions to the NICS, or of any way to be removed once prohibited. The same problems exist with the no-fly and terrorist watch lists; with the Veterans Administration listing veterans with PTSD or representative payees; and in the threat from the Social Security Administration to list Social Security recipients on disability or with representative payees.
None of these circumstances necessarily mean these individuals cannot safely handle firearms or present any danger. Yet these citizens are denied their Second Amendment rights indefinitely by bureaucrats who bear no accountability for applying these prohibitions.
The story of Charles Tyler is a somewhat hopeful example about challenging one’s NICS prohibition. Twenty-six years after being committed for suicide risk during a situational depression, he was denied the right to purchase a firearm. He’d had no further mental health issues and no criminal record, so that was the only reason for his prohibition. He sued.
After a two-year legal odyssey, the 6th US Circuit Court of Appeals in Cincinnati found that the law determining that prohibition is unconstitutional in his circumstances. But no one should have to go to such cost and effort to get their civil rights restored.
It is maddening that our laws and this administration’s agenda would so readily deprive citizens of their rights as Americans. There is no excuse for societal protections that, while important, leave no way out for individuals unfairly trapped by them.
During the Guns in America town hall, the President showed a telling pattern. When responding to questioners who were supportive of his agenda, he was animated and focused on them. When replying to people who raised criticisms, he was passive and less spontaneously empathic, and changed the subject. He couldn’t meet their gaze for more than a moment.
This is defensive behavior. Could it have to do with his isolation from mainstream America? Could it be because no one in his circle questions his assumptions or sees these subjects differently? Does it relate to his and his party’s mindset fearing guns and blaming all gunowners for violence done by irresponsible, criminal, and distressed people? Might it demonstrate some shame for vilifying people who disagree with his irrational, irrelevant and ineffective responses to the problem of violence in America?
President Obama’s executive actions, while perhaps tempered by some late arriving awareness of the limits of his powers, are not Goldilocks solutions. They are too little and too much, too soft and too hard. They just don’t fit.
Robert B. Young, MD is a psychiatrist practicing in Pittsford, NY, an associate clinical professor at the University of Rochester School of Medicine, and a Distinguished Fellow of the American Psychiatric Association.
