This post is intended to address a specific problem regarding Federal firearms laws and the ability of the severely mentally ill to purchase firearms. If you take away anything from reading this, it should be: All issues related to this subject have already been addressed and resolved, and that everything that is proposed in the following paragraphs are already legal and law. The only thing necessary to allow Psychiatrists and Therapist the ability to enter their professional opinion regarding the suitability of their patient to purchase a firearm is to let them enter that data, which is merely a “flag,” into the appropriate database. They need not enter the reason, as the category is already defined, so patient specific information is not necessary and patient confidentiality is not breached.
In order to attempt to keep focus I will look at this loophole apart from others that some might think should be included in broader legislation regarding firearms. Frankly I find that idea old fashioned and worn out when addressing Constitutional issues. You cannot fix loopholes with a sword when what is needed is a scalpel. We cannot talk about gun control laws, either increasing them or reducing them, without all parties being aware of what the others present at this discussion believe, and we should respect those beliefs as each point is based on some pertinent logic. I could go on ad nauseum representing the different sides issues with guns, but lets stick to the topic I am interested in; using Federal law to protect all Americans via background checks for the severely mentally ill. With that, a brief sketch of our disagreements, which we can momentarily agree with, and then set them aside so that we can concentrate on the problem at hand.
special interest groups are part of the problem, and cannot represent the solution.
On behalf of the Right: I’d like to explain something that I find is seldom addressed in these discussions; The Founding Fathers before the American War of Independence; Englishmen. After the American Revolution; American. Hence the Second Amendment. So simple, but it is essential to comprehend this to understand part of the Right’s side of the discussion. It is equally important to address personal safety, and that the average American has the Constitutional right to defend their country or themselves from anyone that would try and harm them, their loved ones or property. And to be perfectly honest with you from my perspective, our Federal government is no more aware of it’s citizens needs than King George III was of his colonist, so lets not quibble about these two points.
On behalf of the Left: It is reasonable to assume that a world without firearms would be safer, as many on this side of the argument agree. No guns mean a reduced possibility of violence, by changing the odds between perpetrator and victim. Secondly that guns themselves were created as an extension of a primitive arms race. You really don’t have to go much deeper than civilized people should behave in a civilized manner, and we have many punishments for those that commit crimes against people. You can cite the “Golden Rule,” or the 6th Commandment, either way not hurting one and other is a better way to live, and any sane person can agree to that.
Both sides are right, more importantly neither side would complain about its description if like-minded people said it to them. The outlines of the logic on both sides of the issue, as I and others represent it, is the very reason they cannot come to terms on this issue, they are 180° opposite, and are not talking about this specific problem at all. And while we can discuss the merits of each side’s entire views on the subject, that is the very reason nothing is done about this, it is because the opposing sides never get past their fundamental differences, and so nothing ever will be accomplished about guns and the mentally ill until we stop talking about guns, and start talking about how to keep them away from those that should not have them.
So lets frame this discussion: In this post I am speaking directly to severe mental illness, but there so are many other mental illnesses, why single these out? All mental disorders have the ability to become severe, so there must be something deeper than the broad brushstroke that society thinks is the issue. I’m going to go even deeper into the realm of severe mental illness to make my point, and address the real problem. What sets what I’m talking about apart from other mental illnesses, that proponents of inclusion of all severe mental illnesses would like to have addressed? The components of Psychosis in certain mental illnesses, including hallucinations, delusions and thought disorder.0 When the affected persons mind becomes disassociated from reality, or creates a separate reality. Mental health issues as a whole affect our society as a whole about 25% year to year,1 so lets cut through the notion that “Mental Illness” is an impediment in owning firearms, because its not. If you’re agoraphobic or hodaphobic and have a tough time coping with everyday life you may need to see a therapist on a regular basis, does that stop you from living your life? No. Can either of these become a severe mental illness? Yes.
Only .01 percent of the population suffers from psychosis and that’s where we need to look for answers to the question that follows in the next paragraph. To explain the problem of “Fear of Mental Illness” I’m going to use a loosely rephrased quote from Kevin Breel;2 “If you break your arm everyone wants to sign your cast, but if you suffer from mental illness people don’t want to hear about it, or if you tell them, they want to get away from you.” I think we can agree that people are generally “mental illness” phobic. So we are not talking about an illness that someone may suffer from where they still have the ability to judge right from wrong, no matter how bad they may feel themselves, because that too will set us off the rails.
After the September 16, 2013 Washington Navy Yard Shooting we are left again with the evidence that some people with certain severe mental illness components that should not be able to purchase firearms are able to obtain firearms and ammunition “legally.” I say “legally” because they have to lie on their ATF 4473 Form to do so, but the use of NICS system has no way of knowing that they have lied until it is too late. They are all the byproduct of a system that checks the background, and therefore suitability, of those people when they purchase firearms. This issue has to be addressed, corrected, and codified in Federal law before we suffer greater mental anguish and loss of life as the byproduct of special interest groups, (both Right and Left,) influence on legislation, and legislators who seem to be incapable of acting in the public interest from the smallest loophole in the law, to funding the Federal Government itself. It is timely that this issue be addressed when our Congress is demonstrating how ineffectual it really is at resolving issues before it.
In four instances in recent history, Seung-Hui Cho; Virginia Tech, Jason Lee Loughner; Tucson, AZ, James Eagen Holmes; Aurora, CO, and Aaron Alexis; Washington D.C. Navy Shipyard,3 who were the perpetrators at their specific places, committed acts that no reasonable person can accept as “collateral damage” in a civilized society. All have three things in common regarding the issue of public safety and firearms access; they all suffered from schizophrenia, with emphasis on the psychotic components, were recognized by either their family or their mental health practitioner as being a danger to themselves and others, and were prohibited from purchasing firearms by the current ATF Form 4733 “Firearms Transaction Record,” (section 11. questions e. and f.4), which requires a person that is detached from reality to answer the question truthfully. (I can’t discuss Adam Lanza here, because he had access to his mother’s firearms, hence did not have to purchase them.) This specific point is the issue; should we really allow people that suffer from psychosis the opportunity to decide at the point of purchase whether or not they are severely mentally ill? Would it not be better to allow their care giver the opportunity to remove that decision from them?
The fact that they were able to purchase or access firearms while suffering from this illness, and had been treated by professional mental health practitioners for their illness, and so were recognized threats to themselves as well as others, directs me to address the specific shortcomings in Federal Firearms laws that are directly responsible for these tragedies, and what we may do to amend them. So that any crime in the future that resembles them, astonishes us as a nation, and gives us pause to consider what happened and what to do about it, does not happen by these shortcomings again.
If they collectively had been included in the FBI’s, (that’s right, FBI not ATF,) NICS5 “National Instant Criminal Background Check System,” as not mentally competent they would not be able to purchase the firearms they used at an FFL, which they all did. I cannot extrapolate what these individuals may have done, or how they may have vented their demons on society without firearms, but I can say that the components of disassociation from reality and looking outside themselves for the root cause of their suffering is what caused them to kill or wound their perceived enemies. This incapacity is already addressed vaguely in the Federal Gun Control Act of 1968 and it’s subsequent amendments, and so the negligence on the part of Congress in correcting this problem is simply unacceptable because it only requires clarification of definitions and their refinement in light of over a half-century of scientific advances, and not new legislation.
Lets start with Congresses most recent public attempt at rectifying this problem, “The Public Safety And Second Amendment Rights Protection Act.” S. 6496 proposed in the Senate this past April as a “bi partisan” attempt at legislation. It is so flawed that, at least in my eyes, it’s laughable. The NRA justifiably held Congresses feet to the fire regarding this Act, because of the lack of direction of its nature, and self-referential logic. As well as the appointment of a separate Commission by that Act, to look into the nature of firearms violence, and amend the Act according to its findings. This is too absurd for reality. Googling “Guns and Violence Studies” the search engine reports back 9,600,000 results. Doing the same for “Firearms and Violence Studies” we get 7,660,000 results. Under Scholarly results for “Firearms and Violence Studies” we get 62,100 official findings in peer reviewed papers and books devoted to the topic.
Does anyone have the slightest notion that the expense and time this Commission is going to waste revisiting this subject is intended for anything other than changing the nature of the proposed Act? I certainly don’t. The only truly relevant issue in the Act is the participation of mental health professionals in the process of maintaining the NCIC database that the NICS system relies on. That, plus a simple unprejudiced mark under “Protection Order File” in the NCIC database, which covers a myriad of reasons why a particular person cannot be allowed to purchase a firearm with a NICS background check, would have rendered the above mentioned names unfit from “legally” purchasing firearms.
Once we clear the few minor roadblocks to allowing the Psychiatrist/Therapist to admit information into this system we then have to engage them in this dialogue in a way that does not jeopardize their relationship with their patients and help them to maintain their current code of ethics. After all, the last thing we need are people that require mental health services to be paranoid of their caregiver, and we cannot abuse that now or in the future. We need disparate groups to partner in solving problems, not create a divisive environment that reinforces our prejudices regarding the implementation of Federal law so that we remove its weaknesses.
what can we do about it:
First lets examine the ethics and law regarding Patient – Client Privilege. You should be aware that from a legal standpoint, the current law allows for mental health professionals to disclose information to the authorities in certain instances. The change in law that truly started to untie the therapist hands in instances regarding a patient that they, in their professional judgment, regard as potentially harmful to themselves as well as others is the 1976 case: Tarasoff v. Regents of Univ. of California.7 In a nutshell this case states that the therapist has a “duty to protect” the intended victim.
Lets deconstruct misconceptions regarding Patient-Client Privilege, as this is the often mis-cited reason for not allowing this information to be placed into the NICS database, because of the lack of definition about what we are talking about when we say “Mental Illness.” I would like the reader to take note of the fact that there is no impediment to a doctor/therapist filing an opinion on behalf of their patient/client, but there is also no current requirement to do so. They may notify local police, but the local police are not required to submit that data to the NCIC database.
What the AMA says regarding ethics: “The AMA’s ethical guidelines are not binding by law…” There is no need to go further, the AMA’s guidelines are not binding by law. So why should we concern ourselves with the AMA? Because they are just one of a number of groups that help mental health practitioners find their way through a maze of ethical questions and responsibilities regarding the law. “The Principles of Medical Ethics” by the AMA are used by all medical professional’s, and are the reference for the “American Psychiatric Associations; ‘The Principles of Medical Ethics.’” 8 Specifically; Section 3: A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient. Could it be in the best interest of the patient to stop them from harming society? I think it is.
From a legal standpoint Federal law, which supersedes state law in this matter, is the law that NICS background checks are bound by. The “Federal Rules of Evidence; Rule 501” do not apply in this matter, as these rules are to be used in courtroom proceedings, either before or at trial. (They are included here so that in the event that someone wishes to approach this matter in this fashion they should not confuse this with what we are talking about.) Now on to a real gem of hypocrisy, HIPAA, the “Health Insurance Portability and Accountability Act of 1996.” To a very small degree specific regulations and associated updates that clarify when a doctor or therapist can contact the proper authorities, in cases such as; “adolescent molestation or abuse, or to avert a serious and imminent threat to public health or safety.a” It is the lack of inclusion of psychosis specifically, which I think we can all agree renders someone an “imminent threat to public health or safety.” You can research these issues starting here: under Exceptions 8.0-17.4.10 and “When does the Privacy Rule allow covered entities to disclose protected health information to law enforcement officials?”11
Next would be a clarification in what “NICS”12 actually is. As I alluded to earlier let’s dispel the myth that this is an ATF entity; it is actually run by the FBI. The NICS system contains no data it is simply a process! It relies on the FBI’s NCIC database, the “National Crime Information Center.” This database is available to: “ Help criminal justice professionals, (police,) apprehend fugitives, locate missing persons, recover stolen property, and identify terrorists. It also assists law enforcement officers in performing their official duties more safely and provides them with information necessary to aid in protecting the general public.” It goes on to explain in greater detail: “The NCIC database currently consists of 21 files.13 There are seven property files containing records of stolen articles, boats, guns, license plates, parts, securities, and vehicles. There are 14 persons files, including: Supervised Release; National Sex Offender Registry; Foreign Fugitive; Immigration Violator; Missing Person; Protection Order; Unidentified Person; U.S. Secret Service Protective; Gang; Known or Appropriately Suspected Terrorist; Wanted Person; Identity Theft; Violent Person; and National Instant Criminal Background Check System (NICS) Denied Transaction.”
Specifically in our case the NCIC “Protection Order File—Records on individuals against whom protection orders have been issued.” And “Denied Transaction File—Records on individuals who have been determined to be “prohibited persons” according to the Brady Handgun Violence Prevention Act and were denied as a result of a NICS background check.” The Brady Act14 helped to create both of these categories in NCIC. So everything is in place to allow the process to conduct a background check for an individual that has been diagnosed with psychosis, the only remaining impediment is asking their therapist to submit an entry into that file. Yet the mentally ills doctor/therapist is not allowed to render their professional opinion and have that opinion represented in the NCIC, even though they are legally allowed to disclose that information to a representative of the NCIC , or any other law enforcement professional for that matter, if they come and ask them if the person in question is mentally competent. What?
This makes my head spin.
The Brady Act, which denies a person the ability to purchase a firearm by this definition: “Has been adjudicated as a mental defective or committed to a mental institution.” (Here is the actual question from ATF Form 4473, which has to be filled out by the person attempting to purchase a firearm, “11.f. Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage your own affairs) or: have you ever been committed to a mental institution? (See Instructions for Question 11.f.)” See appendix for those instructions.
Don’t let “adjudicated” fool you, it already allows for doctors and therapist to create an entry, as they are a “lawful authority.” As a matter of fact they are the only people qualified to define a person as such under federal and state laws. So if your therapist tells you that you are suffering from the psychosis component from a severe mental illness, you have been adjudicated so. All that we are lacking is the ability of someone who has already determined that someone is unfit to purchase a firearm, to file a court order, at the local level, about their professional opinion regarding submission of information to the database that is accessed during the background check necessary to purchase a firearm from an FFL. And yet we don’t because of a misunderstanding on the part of lawmakers regarding laws they have written, and are supposed to enforce.
Allowing the mental health professional permission to contribute to the database is simply a matter of opening a gate that is already there. By allowing the doctor or therapist to insert a flag in the NCIC Protection Order File the confidential information between patient and client is not breached and the public is protected from potential harm, because the NICS system does not have access to the particulars from NCIC. This system just as easily allows the Client the ability to lift that order, should they be mistaken, or the disposition of the patient has changed and they are no longer a threat to themselves or the public. Therefore no details regarding the individual’s mental health are revealed so that it may later be used against them. This also protects an individuals civil rights if they are mistakenly placed on that list for any reason. Additionally it also removes the onerous task of clearing yourself in Federal court under S. 649, because it all takes place at the local level!
These simple steps will close the door regarding the violence that may happen in the future by people that cannot “legally” purchase guns and ammunition. It does this without infringing any further on legal gun owners rights, which “The Public Safety And Second Amendment Rights Protection Act of 2013″ did, in my opinion. This should also satisfy those on the left who would like to see some degree of consistency in enforcement of existing laws, by moving them closer to a society where not owning a firearm or other weapon, and not fearing for your life or safety, are not mutually exclusive.
I know this doesn’t affect either sides opinion, but that’s ok I’m not trying to change anyone’s mind regarding firearms. I’m simply trying to point out what the problem is, and why that problem goes untended to while both sides of the gun control issue dispute the others claims, data or opinions. It’s fair to say this would benefit everyone in America, including those that suffer from psychosis.
Definition of severe mental illness from the Nation Institute of Mental Health division of the NIH: “Adults with a serious mental illness are persons: (1) age 18 and over, (2) who currently or at any time during the past year, (3) have a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria specified within the Diagnostic and Statistical Manual of Mental Disorders (DSM)-III-R, (4) that has resulted in functional impairment which substantially interferes with or limits one or more major life activities…All of these disorders have episodic, recurrent, or persistent features; however, they vary in terms of severity and disabling effects.” Federal Register Volume 58 No. 96 published Thursday May 20, 1993, pages 29422-29425. ii
Authors note from the above web page: “In fact, all mental illnesses have the potential to be impairing and meet the meaning of “serious” in the sense of the federal definition.” As I wrote about in this article.
Because of this I find the need to clarify what I am talking about as opposed to the “Federal” definition. “As you can see, the “official” definition of SMI is very inclusive—though I imagine that when people talk about SMI these days—they don’t have the Federal Register definition in mind. Recently, SMI has been a subject of conversation in the wake of recent shooting tragedies. Discussions about SMI and violence—directed towards self or others— are usually focused on schizophrenia and bipolar disorder, and sometimes major depressive disorder. Violence is an extreme (and rare) negative outcome of disorders like these, warranting particular emphasis, but it is not the only negative outcome to consider. For example, anorexia nervosa can be fatal—yet eating disorders have understandably been excluded from discussions about SMI following the events in Newtown, Connecticut.”
Question 11.f. Adjudicated Mentally Defective: A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) is a danger to himself or to others; or (2) lacks the mental capacity to contract or manage his own affairs. This term shall include: (1) a finding of insanity by a court in a criminal case; and (2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility.
Committed to a Mental Institution: A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution. Please also refer to Question 11.c. for the definition of a prohibited person.
EXCEPTION to 11. f. NICS Improvement Amendments Act of 2007: A person who has been adjudicated as a mental defective or committed to a mental institution is not prohibited if: (1) the person was adjudicated or committed by a department or agency of the Federal Government, such as the United States Department of Veteran’s Affairs (“VA”) (as opposed to a State court, State board, or other lawful State authority); and (2) either: (a) the person’s adjudication or commitment for mental incompetency was set-aside or expunged by the adjudicating/committing agency; (b) the person has been fully released or discharged from all mandatory treatment, supervision, or monitoring by the agency; or (c) the person was found by the agency to no longer suffer from the mental health condition that served as the basis of the initial adjudication. Persons who fit this exception should answer “no” to Item 11.f. This exception does not apply to any person who was adjudicated to be not guilty by reason of insanity, or based on lack of mental responsibility, or found incompetent to stand trial, in any criminal case or under the Uniform Code of Military Justice.
The Brady Act: Section 922(g) of the Brady Act prohibits certain persons from shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who:
1. Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
2. Is a fugitive from justice;
3. Is an unlawful user of or addicted to any controlled substance;
4. Has been adjudicated as a mental defective or committed to a mental institution;
5. Is an alien illegally or unlawfully in the United States;
6. Has been discharged from the Armed Forces under dishonorable conditions;
7. Having been a citizen of the United States, has renounced U.S. citizenship;
8. Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, or;
9. Has been convicted in any court of a misdemeanor crime of domestic violence.
10. Has a record of being a felon