New York’s SAFE Act and Red Flag Laws Put Up Legal Barriers to Mental Healthcare in the State

Former New York Governor Andrew Cuomo and the Democrat-dominated state legislature took the opportunity presented by the Sandy Hook school shooting and rammed through an abomination of a gun control bill — literally in the middle of the night — they laughably called the New York SAFE Act.

The bill — like all such legislation — was passed with accompanying huzzahs and great promises that this would be what the state of New York needed to finally do something about its “gun violence” problem and save countless lives. Literally no one thinks it’s done anything like that.

One individual, RN Sandra Richardson, has done some exhaustive research on the law and its effects on the state’s mental health system and has come to the conclusion that the SAFE Act has actually erected a barrier to some New Yorkers getting the mental health treatment they need. Here’s what she’s found . . .

By Sandra Richardson

This analysis illustrates the impact of codified barriers to mental health care such as the New York Secure Ammunition and Firearms Enforcement Act (NY SAFE Act). New York State Division of Criminal Justice Services (DCJS) data, United States Census data, and existing literature were utilized to quantify the barrier to mental health care created by NY SAFE Act reporting and effectiveness in identifying the target population.

For each DCJS database search related to such reports, about 12 adults who received mental health services in the past year are less likely to seek mental health care and about 16 adult gun owners are less likely to seek mental health care because of this law.

This reporting captures approximately 2.7% of individuals who are suicidal or homicidal. These results indicate that NY’s SAFE Act reporting has created a large barrier to mental health care and is ineffective in capturing its target population.

Introduction

Society has many rules codified into law that are intended to improve public safety and protect civil rights. Although it may seem counterintuitive to codify a barrier to mental health care, some laws may have unintended consequences.

A barrier to care is something that prevents people from receiving adequate health care. Some common examples of barriers to adequate health care include availability of providers, cost, stigma, poor health literacy, and policy. Something that is codified is written into law. Familiar examples of things codified are traffic rules, banking rules, tax rules, and civil rights.

Three examples of codified barriers to mental health care include New York Secure Ammunition and Firearms Enforcement (SAFE) Act Mental Hygiene Law (MHL) § 9.46 reporting, National Instant Criminal Background Check System (NICS) mental health reporting by states to the Federal government, and red flag laws.

Here, publicly available data and a current law are used to illustrate 1) the magnitude of the barrier to mental health care created by that law and 2) the percentage of the target population captured by that same law. These results will contribute to the understanding of whether such laws support population wellbeing.

MHL § 9.46 NY SAFE Act

MHL § 9.46 is used to illustrate the unintended barrier to mental health care created by a law as well as whether that law is effective in capturing its target population. Therefore, an understanding of NY SAFE Act MHL § 9.46 intent and reporting is essential. NY SAFE Act MHL § 9.46 was created in 2013 in the wake of the tragic Sandy Hook Elementary School shooting that occurred on December 12, 2012. Although well-intended, this law was put into place without stakeholder or expert contribution, or time to consider ramifications.

On their website, the New York State Psychiatric Association has stated several concerns about privacy and intent of MHL § 9.46 reporting, including the following quote:

Following discussions with OMH staff, it has become clear that the intent of the SAFE Act reporting requirement is solely to limit access to legal firearms and not to protect individuals from imminent risk of harm to self or others

OMH stands for the NY State (NYS) Office of Mental Health. . . . [T]he governor’s message of necessity provision . . . expedited passage without the [normal] three-day review period . . .

MHL § 9.46 . . . designates which provider types are to file reports and the list of provider types has expanded over time. It gives a general explanation of reporting danger to self or others, and the sequence of entities who will receive and act on the information. It does not require reporting if such would endanger the reporter or potential victims. Lastly, it relieves the reporter of accountability in filing these reports.

MHL § 9.46 does not inform reporters that reporting revokes rights without due process of law or validation of the accuracy of the report. Nor does this law clearly state that the reporting standard is MHL § 9.01 . . . Related directly to MHL § 9.46 language, MHL § 9.01 explains that there must be threats or attempts at suicide or conduct demonstrating danger to oneself, or homicidal or violent behavior toward others to meet the reporting standard . . .

Once a report is filed with the NYS OMH through the NYS Office of NICS Appeals and SAFE Act online form, it goes to the County Director of Community Services (DCS) (New York State Office of NICS Appeals and SAFE Act, 2013). The DCS checks that the report was filed by a mandated reporter and that what the reporter wrote appears reasonable for reporting (DCS, personal communication, December 2020). However, the DCS does not see the medical record or have any contact with the reported individual. As there is no independent second opinion on an individual’s risk of harm, clinical misjudgment, bias related to guns, and ignorance of the law go unchecked.

Next, the report makes its way to the NYS Division of Criminal Justice Services (DCJS) where information about the reported individual is entered into a NYS database of persons who are not permitted to possess guns, and a search of records is conducted to see if the reported individual has a handgun permit in NYS. If there is a handgun permit, the individual is reported to the county and is ordered to appear in court. This notification can take weeks . . . , which is in stark contrast to the “need for immediate action” in the reporting standard . . .

There is no required notification to those without a handgun permit that they were reported and are now listed in a NYS database as a person prohibited from gun ownership – for these people there is no appeal process and no due process of law . . . Individuals who are reported are not permitted to see the report against them. The NYS OMH retains all MHL § 9.46 reports ever filed, and the NYS DCJS retains only the last five years of this information. . .

Suicidal ideation, Homicidal ideation, Gun ownership

The Substance Abuse and Mental Health Services Administration estimates that in the past year 15.68% NYS adults received mental health services and 4.21% had serious thoughts of suicide . . . A recent study found that in Nationwide Emergency Department data of over 25 million adults, the prevalence of homicidal ideation (HI) is 0.25% . . . In a study of 251 Florida Emergency Department patients on involuntary hold, 76.9% of those who were homicidal were also suicidal . . .

Another study revealed that because of NY SAFE Act reporting, 9% of individuals seeking mental health care would be less likely to seek such care . . . About 10 percent of their study population responded that they owned a gun. An estimate for 2017 indicated that 30 percent of adults in the United States own guns . . . However, the 2022 estimate for New York State is that 20% of adults own guns . . .

This paper uses NYS population level data to quantify both the barrier to care created by MHL § 9.46 reporting and the percentage of those with suicidal or homicidal thoughts captured by this reporting.

Methods

Data was obtained from the NYS OMH and the NYS DCJS through freedom of information requests . . . , and from the United States Census Bureau website . . . The OMH data is from inception of MHL § 9.46 reporting in March of 2013 through December 2021. The DCJS data utilized includes January 2018 through December 2021. Due to the timing of the DCJS request, 2017 data is incomplete and therefore excluded. The Census Bureau . . . NYS population estimates for July 2021 are a total population of 19,835,913 with 79.3% (15,729,879) of the total population being 18 years of age or older.

Based on OMH data, the total number of reports, the average number of reports per year, and percentages of reports by reporter type are presented. The DCJS data related to these reports provides the total number and yearly average of database searches, and number and percentage of searches that resulted in county notification. To allow alignment, OMH results are also presented limited to the years for which complete DCJS data are available.

The number or percentage of adults who are expected to report thoughts of suicide, homicide, or both, and the percentage of individuals who are less likely to seek mental health care due to MHL § 9.46 are applied to the NYS population data. The barrier to care is quantified in the number of individuals who are less likely to seek mental health care because of this law and also in the ratio of individuals less likely to seek care to DCJS data base searches. The percentage of the target population that this reporting may identify if all reports were accurate is also presented. Figures were created using Microsoft Excel. The author certifies responsibility.

Results

The total number of MHL § 9.46 reports filed from 2013 through 2021 was 183,577, with a yearly average of 20,397; from 2018 through 2021 the total and average were 77,085 and 19,271, respectively. . . . 1% of DCJS database searches resulted in county notification.

Among NYS adults there are about 3,145,976 who own guns and 12,583,903 who do not, based on the estimated 20% gun ownership. At a rate of 4.21%, about 662,228 NYS adults are expected to have serious thoughts of suicide each year. Using a prevalence of 0.25%, approximately 39,325 NYS adults are expected to have HI each year. Applying 76.9% to 39,325, the number expected to have both suicidal ideation (SI) and HI is 30,241 which represents 0.19% of NYS adults.

When the percentage less likely to seek mental health care due to NY SAFE Act reporting (9%) is applied to the percentage of NYS adults who received mental health services in a year, there are 221,980 individuals less likely to seek mental health care because of MHL § 9.46. When the 9% is applied to the number of NYS adults who do not own guns the result is 1,132,551 individuals who are less likely seek mental health care because of MHL § 9.46. If that same 9% is applied only to adult NYS gun owners, there are 283,138 individuals who are less likely to seek mental health care each year because of MHL § 9.46 . . .

Discussion

There are many MHL § 9.46 reports filed each year and assuming these reports are accurate, they only capture a small percentage of the target population while deterring a larger number of people from seeking mental health care. . .  Although at first glance one may think the number of reports represents harm reduction, this is not necessarily the case. These reports are filed without an independent second opinion, sometimes by reporters not authorized to diagnose SI or HI, and based on DCJS data 99% of reported people have no opportunity to challenge the report. . . It is important to note that among the 1% of reported individuals who are ordered to court, there have been instances where the MHL § 9.46 report was not upheld . . . , but the number overturned is unknown.

. . . [T]his reporting while potentially benefiting a smaller number, is increasing the risk of harm to hundreds of thousands of people every year. Simply put, MHL § 9.46 reporting has created a large barrier to mental health care. . . . [The ratio] most closely aligned to the population . . . is that for every 1 DCJS database search there are 12 individuals who received mental health care in the past year who are less likely to seek mental health care because of this law. . . . The ratio for gun owners shows that for every 1 DCJS database search there are 16 guns owners who are less likely to seek mental health care due to this law. However, this is likely an underestimate because the [estimate] was based on a study of both gun owners and non-gun owners already seeking mental health care. [T]his law is written to target legal gun ownership which may make gun owners far more reluctant to seek care.

. . . Among the provider types required to report, some are not authorized to make medical diagnoses or to admit a person for observation or inpatient care which would be an immediate need if the reporting standard were met . . . It seems then that a more appropriate course of action for those reporters would be to refer to a higher-level care provider so that proper diagnosis and care is rendered in a timely manner . . . It follows that there is an obligation to observe or admit for care if the reporting standard is met. . . . [I]t is very unlikely that a person would be discharged to the community if SI or HI presented an imminent risk . . . Therefore, this reporting is unlikely to prevent imminent harm.

Reporting by providers who are not authorized to diagnose SI or HI and who cannot provide the appropriate immediate care needed, sharing of private information without consent that may not meet the reporting standard or be required by law, lack of an independent second opinion, lack of provider accountability, delayed or lack of notification about reporting, and no due process of law undermines [sic] patient trust in mental health care providers. This is an unfortunate paradox because it is common knowledge that trust is the basis of an effective therapeutic relationship in mental health care.

Conclusion

These results illustrate that NYS SAFE Act MHL § 9.46 reporting captures a very small percentage of its target population and is a large barrier to mental health care. It is within reason to extrapolate these results to NICS mental health reporting and red flag reporting as well. Removing these codified barriers to mental health care may be in the interest of population wellbeing.

Sandra Richardson has been an RN since 1982. After completing a Master of Science in Epidemiology in 2009, she worked in population health research until retiring in 2023. She is committed to health equity and constitutional rights, and is disturbed by New York State’s barriers to mental health care and gun rights. 

This article originally appeared at drgo.us and is reprinted here with permission.