Executive Powers & Mental Health

[BarryLee]

After recent failures of restrictive gun legislation Mr. Obama is now moving to use executive powers to restrict access to guns for mental health reasons. Currently individuals who meet certain criteria related to mental health are supposed to be reported to the NICS and currently 17 states do not participate as required. Much of the resistance to reporting comes from concerns about privacy requirement related to the Health Insurance Portability and Accountability Act or HIPPA.

So, Mr. Obama wants to clarify what the law requires and make reporting easier - which sounds good. I suppose I am a little concerned as we hear stories related to Veterans being added to NICS who do not meet the normal criteria. I realize that Mr. Obama cannot make new laws here, but I hope the actions do not lead to abuses of personal freedom and loss of due process.

http://www.foxnews.com/politics/2013...est=latestnews

[Alizard]

As stated: currently laws are in place which are being ignored. I agree that mental health professionals should be forced to report potentially dangerous people at minimum to the federal database so they can't buy guns.

The continual whine about "patient privacy" needs to be superseded by safety concerns for the general population.

IMHO, the reason health providers don't comply and report is they are afraid of being sued. We need a blanket umbrella law to prevent that so they would be allowed to report the loonies.

So, Mr. Obama wants to clarify what the law requires and make reporting easier - which sounds good. I suppose I am a little concerned as we hear stories related to Veterans being added to NICS who do not meet the normal criteria.

I have as much sympathy as anybody for vets. I worked with other vets after Viet nam war. But the truth is: there are many veterans who are highly disturbed with PTSD and they should not own guns. One video recently was the marine trying to break through the window of a guy in a car so he could kill the guy over a road rage incident. If that marine had a gun, both people in the car would have been dead.

Veterans deserve the best of help, but if they are dangerous they should be restricted from owning guns just like anybody else.

[Glenn E. Meyer]

The problem as pointed out by professionals is that we do not have the tech to really identify dangerous individuals without a tremendous number of false positives that are done with good will or maliciously by antigun medical and mental health professionals. The truly delusional might be spotted but that's about it.

Tightening up the reporting of those adjudicated (if they are not being reported) makes sense as they can have protections and appeals.

However, laws like the SAFE act are not supported by mental health professionals who think about it for more reasons than liability.

If a poster can come up with literature that demonstrates reliable predictions of violence or such a technique, please do. It doesn't exist.

[Alizard]

It needs to be understood that Obama has extremely limited power using Executive Orders. EOs are binding on anybody in the executive branch, but he can not create new law using an EO. Read the total of the EO's he enacted on gun control here:

http://www.newsmax.com/Headline/Obam...1/16/id/471689

You will notice that in substance, they add up to NOTHING. It's suggestions, create a dialog, publish a paper, have an agency look into something, lots of vague feel good rhetoric but nothing of any actual substance.

It sounds like what Obama wants to do is try to force states to comply with existing law on mental health reporting. He doesn't need an EO, he could use the Justice Department and some kind of federal lawsuit.

[Alizard]

The problem as pointed out by professionals is that we do not have the tech to really identify dangerous individuals without a tremendous number of false positives that are done with good will or maliciously by antigun medical and mental health professionals. The truly delusional might be spotted but that's about it.

Both shooters in the sandyhook and aurora incidents were well known to have serious mental problems. The aurora guy was recognized as disturbed. The sandyhook kid was being "undertreated" by a completely delusional parent who was in denial about the severity of his problems.

Point is, these were not "healthy" kids who went bad without any indication or warning, these were disturbed kids.

IMHO, this country is leaning way too far to the side of protecting the "rights" of the mentally ill when states are refusing to report potentially dangerous people or do any follow up.

[Glenn E. Meyer]

I agree that mental health professionals should be forced to report potentially dangerous people at minimum to the federal database so they can't buy guns.

You obviously know little about the area. As I pointed out the criteria for forcing a report are not clear beyond the adjudication rule.

The SAFE acts says:

A: MHL 9.46 requires mental health professionals to report to their local director of community services (“DCS”) or his/her designees when, in their reasonable professional judgment, one of their patients is “likely to engage in conduct that would result in serious harm to self or others.”

That is so subjective and counter to what we know about how clinical prediction is really poor. Go read the latest meta-analyses of violence prediction, the FBI summaries of it usefulness, etc.

It is a tremendous risk to civil rights and the branding of folks. It will cause people to avoid therapy. It breaches confidentiality. An ethical therapist will have to inform the client of this risk. Would a gun owner continue to go?

How many folks would be harmed by not getting help?

[Evan Thomas]

I agree that mental health professionals should be forced to report potentially dangerous people at minimum to the federal database so they can't buy guns.

"Potentially dangerous" is not the criterion for reporting. The standard for involuntary commitment is quite high. It requires that a patient has done something violent or made specific threats. It's not sufficient for a mental health professional to "have a bad feeling" about a patient, and this is as it should be.

The way the current law works is that in order to deprive a mentally ill patient of his rights, he must first be determined by a professional or other authorized person to be an immediate danger to himself or others. That determination is enough to have someone hospitalized for a maximum of 72 hours. After that, a judge must rule that, yes, this person is dangerous and should be involuntarily committed or required to undergo some other form of treatment. (In some states, a judge can commit someone to outpatient treatment, for example.) After a judge has so ruled, that finding should be reported to the FBI so that the person is included in the NICS database of prohibited persons.

This is what is technically known as "due process," and it is a requirement, under the Constitution, before someone can be deprived of rights -- including the right to own a gun.

The problem occurs largely at the level of the state reporting systems: some are merely inefficient or underfunded, and others actively refuse to submit these records to the FBI because they're limited by state privacy laws. This absolutely does need fixing.

New York passed a reporting requirement such as you propose as part of the SAFE act: reporting a suspicion that a person might pose a risk is now required of mental health professionals in that state, and it's leading directly to confiscation of guns. This is not a good thing at all, and it's being challenged by lawsuits even as we speak.
---

And just for the record, most people seem to have forgotten that there is no evidence that the Sandy Hook shooter ever received a diagnosis of mental illness. He does seem to have had an "autism spectrum" disorder, which is not a mental illness, but an organic condition, but even that has yet to be confirmed by a medical professional who treated him. In general, such disorders are in no way predictive of violence.

[cvc944]

I agree that mental health professionals should be forced to report potentially dangerous people at minimum to the federal database so they can't buy guns.

Alizard, The word 'potentially' gives me chills when it comes to making new laws. A recovering alcoholic should not be considered a more potentially dangerous driver than I am. Someone who served in Viet Nam should not be considered more likely to 'go off' than me. Someone who is taking medication should not have their rights violated because they might be standing closer to the edge than you or I. The reason I bring these examples up is because these people I mentioned, the recovering alcoholic, the war vet, and the person on medication are doing and have done something FOR us. They helped themselves for us as well as themselves. We might want to give them some thought.

[Evan Thomas]

The reason I bring these examples up is because these people I mentioned, the recovering alcoholic, the war vet, and the person on medication are doing and have done something FOR us. They helped themselves for us as well as themselves. We might want to give them some thought.

This is a very good point, cvc944. It doesn't speak to the law, but it does speak to the ethical basis of law, which is easily forgotten in the welter of fear and rage in which these conversations often take place. Thank you for this.

[Gaerek]

I agree that mental health professionals should be forced to report potentially dangerous people at minimum to the federal database so they can't buy guns.

If I have a prescription for an anti-depressant (I do not, this is hypothetical), would I be considered potentially dangerous?

What about a doctor that is anti-gun, and he's saying that all of his patients are "potentially" dangerous?

Words have meanings, and we need to make sure that the rights of those who aren't a clear and imminent danger to themselves or others don't have their rights infringed. As Vanya showed, the current way it's supposed to work is more than sufficient.

The one thing that people keep forgetting is that Sandy Hooks, Virgina Tech's and Columbines are exceedingly rare. You're more likely to be struck and killed by lightning (about 1/1,000,000 odds) than killed in a mass shooting. Safeguards that target guns themselves or the people (making the huge assumption that all mass murderers are labeled as being a danger to themselves and others using the process Vanya mentioned) that commit them just won't work...as Adam Lanza showed us. 1) Guns are already out there. Pandora's box, as it were, has already been opened. 2) Preventing someone from buying a gun won't stop them as there are other ways of getting a gun.

The only thing that could prevent another tragedy is to have someone who is armed, and can confront an attacker at the school. We guard our President, Celebrities, and even our money with people with guns. How come we don't provide the future of our country the same protections?

[Glenn E. Meyer]

BTW, since the fundamentals of psychiatric diagnosis is undergoing major change from the DSM-IV to DSM-V - that might be a hint that unbridled mental health professional and state power needs strict scrutiny.

So I think you have Asperger's and in MY opinion that can lead to asocial behavior and risk. Sounds good - Asperger's is going away in the new versions or so we are told. Oops.

[ClydeFrog]

These points have been discussed at length on TFL before.
A few members(like me) can see the value of changes that would prevent firearms & ammunition from being purchased or legally owned by people who want to harm themselves or others.
This would NOT include those with ED or depression or insomnia, etc.

A valid argument could be made over state rights/laws & mental health issues but President Obama, VP Biden & the other elected officials want to STOP gun violence.
Gun owners & 2A supporters should take the high road and be mature adults.
CF

[BarryLee]

Yes, very concerned about people being denied due process in these cases. While my psychological training is limited to a couple basic college classes I did learn enough to understand conceptually just how difficult it is to identify “potentially” dangerous people as opposed to people who just need a little help. So, I am concerned about politicians potentially lowering the threshold required to deny someone their Constitutional rights.

Now, if Mr. Obama takes steps to simply assure that people who have already been adjudicated as a danger get into the NICS system that seems like a good step.

[ClydeFrog]

I AGREE with those points but what Im saying(and a few other TFL forum members posted remarks along the same lines) is that people who already adjudicated as having serious or violent mental health problems should NOT have access to weapons/ammunition.
People can go thru a legal process or do what they can to restore their civil rights or legal status but they should NOT have access to firearms & ammunition until that time.

People make it complicated or become argumentative just to stir up the issue.

CF

[Evan Thomas]

Originally Posted by ClydeFrog

I AGREE with those points but what Im saying(and a few other TFL forum members posted remarks along the same lines) is that people who already adjudicated as having serious or violent mental health problems should NOT have access to weapons/ammunition.

I'm not quite sure what you're disagreeing with, here. Under federal law, people who have been adjudicated (i.e., found by a court to be) mentally ill and dangerous are prohibited persons. The problem, as some of us have noted, is that there's no uniform mechanism to get those people's names into the FBI database, so that the system will treat them as the prohibited persons they are.

[L2R]

state have power but the federal gov't doles out millions of dollars to states each year so long they 'comply'.

Ex. highway speeds.

While he may not have the power to just create laws, they have the money and therefore, he does have the power.

It just takes time to find a way to manipulate the system.

[BarryLee]

People make it complicated or become argumentative just to stir up the issue.

Sorry, not trying to be argumentative and it sounds like we agree on the issue. I applaud Mr. Obama for attempting to improve the reporting system so that those who have been adjudicated end up in the NICS database in a timely manner.

Now, my only concern was that somehow there is an intentional or maybe unintentional lower of the bar resulting in people who do not meet the requirements being placed in the system.

[Glenn E. Meyer]

BTW, let's not use terms like 'loonies'. People who are ill don't need such.

Thanks

Glenn

[Battler]

Is there an inclination or strong possibility that things like named personality disorders (narcissistic, borderline, etc.) will become checkbox automatic disqualifiers? Or bipolar? Or some psychoses/psychotic/delusional symptoms? Or would it specifically have to be linked to violence?

[ClydeFrog]

See, this is my point...
These "what if" topics spin all over between members discussing persons who have already adjudicated & those still in the process.

I understand the concern over starting databases & the required criteria, that's a valid point of discussion, my problem is that these TFL topics swerve into "who's to say who is unstable?" Or Obama's gonna take my guns because I have migrane head-aches, .


CF

[Bartholomew Roberts]

From a legal perspective, there is still a lot of grey area in some states (the usual suspects) over the process and requirements to be added to the NICS system. Since the Harkin-Alexander Amendment is part of the now-tabled S.649, those grey areas are still not defined well.

As a result, loosening HIPAA protections now is likely to result in some people who should not be disqualified being added to NICS.

[Evan Thomas]

Originally Posted by Battler

Is there an inclination or strong possibility that things like named personality disorders (narcissistic, borderline, etc.) will become checkbox automatic disqualifiers? Or bipolar? Or some psychoses/psychotic/delusional symptoms? Or would it specifically have to be linked to violence?

Prohibiting a person from owning/possessing firearms on the basis of a diagnosis would be an egregious violation of his rights.

Any disqualification must be based on evidence that a person is an immediate threat to himself or others. As I said above, this means actual violent behavior or credible, specific threats. It's not enough for a mental health professional to suspect that someone has the potential to be violent, or might get violent sometime, etc.

Keep in mind that only a tiny percentage of people with mental illness are ever violent. They are, in fact, far more likely to be the victims of violence.

It's no different from depriving any other group of people of their rights because they are members of a particular class: it's illegal to discriminate on the basis of race, sex, religion -- and disability.
...
ClydeFrog, I'm still not understanding your point...

[JimDandy]

It's also a judgement that the person cannot contract or manage their affairs.

27 CFR 555.11 - Meaning of terms.

Also, disturbingly, it does not require a judge.

A determination by a court, board, commission, or other lawful authority

So a state could impanel three licensed social workers, call it a mental health board, and start deciding bi-polar, etc. folks off their meds are unable to contract or manage their affairs. I'm pretty sure organizations like the ACLU would parachute in like the 82nd Airborne if that happened though. However it also isn't unheard of for excessively... pro-active (to be polite) States to enact legislation like that. And if they work with an aggressive POTUS to get these folks adjudicated, and into the NICS database assembly line style to apply the prohibition to as many people as possible....

[Evan Thomas]

Originally Posted by JimDandy

So a state could impanel three licensed social workers, call it a mental health board, and start deciding bi-polar, etc. folks off their meds are unable to contract or manage their affairs.

You're confusing two separate standards -- being adjudicated mentally ill and dangerous is one thing; being adjudicated mentally incompetent is completely separate from that.The latter requires a determination by a probate court, which then appoints a legal guardian. This is a well-established procedure, and it would be difficult to change it.

Not that a state couldn't try to pass such a law, but it's not likely, and it would certainly be challenged and overturned in short order.

[ClydeFrog]

For the 3rd time....

My point here is:
This should be a rational discussion of persons who are already adjudicated as mentally unstable or violent(ie: unable to own or carry firearms/ammunition) & how or what databases or systems are in use(or should be set up) to prevent gun crimes/violent acts.
I'm not discussing persons with bi-polar, ED, cry when it rains outside, wets the bed, etc. I'm talking about violent, aggressive subjects who have documented felonys, court mandated restraining orders/PFAs, trespass notices, are fugitives, dis-honorable discharged from the US armed forces, etc.
As for the % or # of criminal felons with mental health problems, I strongly disagree. In 2011, I had a incident with a 57 year old male, 6'06", who made threats against me & attacked me with a chair leg.
I was doing a security job at a low end hotel property in a major urban area.
In 2013, I saw the former State's Atty for my area(a SE Asia combat veteran & former Sheriff for the county) say that he also considered violent criminals with mental health issues or those who go off their meds/take illegal drugs-alcohol, as a major law enforcement issue/public safety problem.