New York’s Gun Law Changes: Negligible Impact on Privacy in Private Practice Settings

In January 2013, New York State passed significant changes to its gun control law that impact mental health care in several ways, but should result in a negligible impact on psychotherapy in private practice settings. The new law is the New York Secure Ammunition and Firearms Enforcement Act of 2013, known as the NY SAFE Act. The governor’s website now includes a summary of the law’s key provisions and frequently asked questions. The full text of the law may be found here.

Two of the key mental health-related changes in the law are unrelated to private psychotherapy practice and apply only to psychiatric patients already involved in the criminal justice system:

First, defendants in criminal cases who are found not responsible for a crime by reason of mental disease or defect will lose their firearm license and have their firearms seized.

Second, patients who have been court ordered to undergo psychiatric treatment through Assisted Outpatient Treatment (AOT)–usually because they have committed a violent act and who are already under fairly rigorous supervision and oversight by government authorities–will have slightly greater oversight by way of increased collaboration among jurisdictions should an AOT patient change their place of residence.

Neither of the above changes will impact the privacy of psychotherapy clients in private practice settings.

The third change may impact psychotherapy clients’ privacy in private practice settings, but only under extremely rare and unusual circumstances. As both existing law and professional ethical standards now stand, a psychologist already has the responsibility to protect a client or others from harm, even if that means breaking a client’s confidentiality (known as Tarasoff laws). A psychologist has a responsibility to protect a suicidal client from harming him/herself by way of psychiatric hospitalization and to protect the potential victims of a homicidal client by warning those potential victims when they are identifiable, and sometimes notifying law enforcement to contain a dangerous client, usually by way psychiatric hospitalization.  A dangerous situation of this magnitude should not be confused with a more routine clinical situation in which a client may discuss transient feelings or fantasies about harming oneself or others. Breaking confidentiality to protect from harm only comes into play when the risk is clear and imminent (in contrast to mandated reporting for child or elder abuse in which suspicion of abuse is sufficient grounds for reporting). Such situations occur rarely in practice, and procedures already exist to deal with these rare, dangerous circumstances.

As I understand it, New York’s SAFE Act will now require psychologists and other mental health professionals to take an additional step when dealing with a potentially dangerous situation.  In addition to taking measures to protect potential victims and to prevent a dangerous client from acting upon their intent to do harm, a psychologist would also be required to contact a government office that would then be responsible to determine whether or not the client intending to do harm has a firearm license and if so, whether that license should be revoked. In New York City, the specific government agency to which such a report would be made is probably the New York City Department of Health and Mental Hygiene, which as of this writing does not yet appear to be organized to receive such reports, but is most likely establishing a hotline in preparation for full implementation of the law in March 2013.

In day to day clinical practice, I expect nothing to be different, with the exception of a minor addition to the Notice of Privacy Practices (see the Initial Consultation Packet here). The effect of the law will be imperceptible to the vast majority of private practice clients who would never have any intention of harming another person. While I believe it is doubtful that that the SAFE Act would be effective in preventing mass shootings (the Newtown, CT tragedy being its impetus), I also think the SAFE Act is unlikely to have the chilling effect on psychotherapy clients’ comfort in making self disclosures that opponents of the law have argued. The law may, however, have an unfortunate effect of reinforcing stigma against those with serious and persistent mental illness.

As with any such change  in law, it remains to be seen exactly how it will be interpreted and implemented. No doubt activists of the gun control, gun enthusiast, and mental health varieties will be watching closely as the SAFE Act goes into effect in New York.