I foresee this quickly turning into more civil liability for doctors. Doctor sees a patient who is a little off but does not report him/her. That person commits a murder with a gun he purchased after the new rule. Murder victim’s family sues doctor for not reporting him/her.
In order to protect themselves, doctors will be inclined to over-report. People who fear they may be reported won’t go to psychiatrists for treatment.
A rule like this might have prevented the Aurora shooter from getting a gun. Maybe the Isla Vista shooter.
I also wonder if doctors shouldn’t just report anyone with a gang tattoo to the FBI as a potential gun danger or anyone who says he hates his wife, or the government, or who is a drug abuser or alcoholic.
Drives people who need help away from help . . . I always thought that was the reason for doctor/patient, attorney/client, priest/penitent (etc.) confidentiality.
There have always been limitations to the privilege though.
It sounds like there are still some limitations on these new disclosures, but I haven’t read the original source material.
Here’s the official document. It also permits HIPAA providers to report those with ‘subnormal intelligence’ and those who are unable to manage their own affairs.
The thread title does not accurately reflect the new rule, which is very, very limited. The only potential gun buyers who would be affected by this rule are people who have already come to the attention of the justice system, because either they have been involuntarily committed to a mental institution (this requires a court order), they have been found incompetent to stand trial, or they have been otherwise determined “by a court, board, commission, or other
lawful authority to be a danger to themselves or others or unable to manage their own affairs, as a result of marked subnormal intelligence, or mental illness, incompetency, the institution by a court or other lawful authority.”
In other words, suppose I go to see a psychiatrist. The psychiatrist determines that I am suicidal, or angry, or delusional, or developmentally delayed, or demented, to such an extent that in the psychiatrist’s expert opinion I would be a danger to the public if I had a gun. But I do not get involuntarily committed to a mental institution. The psychiatrist is not required to report me.
A month later, I go to a gun store and try to buy a gun. There is nothing under this new procedure that will prevent the gun store from selling it to me, even though my psychiatrist firmly believes I shouldn’t have a gun.
Is there even any avenue for a mental health professional to get a person on the gun-prohibited list, if the person hasn’t already come to the attention of the justice system? I don’t know of one.
It is very limited. And even if this had been implemented before now it would not have prevented any of the killings by the mentally ill killers (Aurora, Virginia Tech, Newtown, or Isla Vista). None of them were adjudicated as mentally incompetent or were involuntarily committed.
It looks to me like this regulation is merely making sure that what is already required in the law actually happens: that people who have been legally adjudged to be incompetent, or legally involuntarily committed, cannot purchase guns.
This doesn’t apply to most of the people we think should not have guns for mental health reasons. And the thread title is incorrect.
The people involved are already prohibited from buying guns.
See the link above
The problem is that it’s a quasi honor system, sort of like donating blood. If you answer the screening questions truthfully, fine. If you lie, there’s often no way of knowing you have. If it’s not reported, how is a gun seller to know that you have been twice been involuntarily institutionalized for schizophrenia if you lie about it? Now, the physicians can tell law enforcement.
In most states, convicted felons can’t vote. If you are already a registered voter before you are convicted, how is the poll worker to know you are now ineligible to vote if the corrections department or similar agency can’t tell the board of elections about your conviction on privacy grounds? One of the Obama executive orders deals with a similar problem, i.e., how can a gun seller know that you are legally barred from buying a gun because of mental illness if we rely solely on the patient to self report?
I realize these new rules wouldn’t have stopped the serial killers. However, every year, many Americans are killed by mentally ill people who have purchased guns despite the fact the law–enacted by Congress–says they can’t. They just lie when they fill out the application form.
As I read the order, it only deals with people who were involuntarily committed or otherwise adjudged in a government proceeding to be mentally unfit to buy a gun.
Hm… is not the O admin in charge of government right now?
Therefore, what is really necessary is an executive order to eliminate government incompetence if this is already required by law, as it is only incompetence by government agencies that means it has not been done. Not sure exactly why an executive order saying the same thing changes incompetence. if the admin cannot do what is already in law, people are drinking koolaid if they think an executive order changes anything.
It looks like my son could buy a gun if he wanted to. He hasn't been involuntarily committed, but he's been hospitalized three times as a very ill young man. Eek.
It reminds me of the questions you have to answer to get a driver's license in our state. It's an honor system to state that you've been diagnosed with a mental illness. My son answered honestly, but the system is so arduous that I wish he hadn't. :( So it seems like there are more restrictions on driving than owning a gun. Odd.
@“Cardinal Fang” I am sorry if I was unclear. Only certain classes of the mentally ill are barred from buying guns. I agree that this executive order only applies to that narrow class of peopel. There does have to be a legal proceeding before a person can be civilly committed involuntarily, but the fact that someone was committed is NOT disclosed. It varies by state but even if there is a reported case the title will be something like “In the Matter of Jennifer X.” I’m not an attorney admitted to practice in Massachusetts, but here is a link to its commitment manual http://www.mass.gov/courts/docs/forms/district/mental-health-standards.pdf See p14. The records are only available to prosecutors in pending criminal matters, and even then the access is limited.
So, if someone is civilly committed and later released to outpatient care, there is no way a gun dealer can find out about it.
In the Virginia Tech shooting, the shooter was the subject of such a hearing. The judge found that he was a risk to himself and others. He ordered him to receive outpatient care for his mental health problems, but he did not have him institutionalized. In Virginia, if you aren’t institutionalized, you can buy a gun. The shooter bought two.
Too little, but perhaps a step in the right direction. Anyone with a history of mental illness shouldn’t have access to guns, period, until someone can certify they’re not dangerous with one. That would also prevent suicides by guns, which are the most effective. Also, no one on terror watch lists should be able to buy a gun anywhere - not at a gun show, not on the internet. That just seems like common sense to me.
The issue is state government, not the federal government. If you read the regulation that TatinG links, you can see that this issue is deep in the weeds.
The Gun Control Act of 1968 disallows guns to certain people, including people who have been involuntarily committed to a mental health institution, have been found mentally incompetent to stand trial, or who have otherwise been adjudged by a “a court, board, commission, or other lawful authority” to be mentally unfit. Note that “lawful authorities” here means government agencies and representatives of the government, not random doctors. People in those mental health categories are supposed to be listed on the NCIS, the list of people not allowed to have guns.
The federal government is required to report to the NCIS anyone not allowed to have a gun, including people who are disqualified for mental health reasons. But states are not required to report anyone to the NCIS, even if the state knows that a person is disqualified. States can report, but they don’t have to report.
Individual states generally report felons to the NCIS. But they have not been reporting people who are disqualified for mental health reasons. One reason for these non-reports has been that some parts of some state agencies think that HIPAA prevents them from reporting.
This new regulation slightly changes the interpretation of HIPAA, so that it is not a violation of HIPAA to report people the state has determined are disqualified from having guns.
Yes, it seems odd until one remembers the Constitution. Driving is privilege; gun ownership is a protected right. It requires a much higher hurdle to take away a right than a state privilege, as it should be.
The NRA supported the law that would have put a mental illness provision into the background check. It was the ACLU and other civil liberties unions that objected due to HIPAA laws and concerns for medical privacy and got the legislation stalled and eventually killed.