Comprehensive Mental Health Background Checks for Gun Buyers Is a No-Brainer -- And Almost Impossible

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There’s also a very strong federal privacy law for health professionals in private practice and working for states and counties at the grassroots level known as HIPAA (Health Insurance Portability and Accountability Act of 1996). This law imposes steep penalties if private health information is disclosed. While HIPAA does have exceptions “to prevent or lessen a serious or imminent threat to the health and safety of a patient or others,” the mental health profession has been trained not to disclose what patients share. What often is recorded by government social workers in their confidential files does not get into the court system—where it might be sent, after deleting medical details, to the FBI. 

“There are completely invisible classes of records that are out there by anyone who may be applying for a gun permit,” said David Harlow, a healthcare lawyer, consultant and blogger. “Everyone is talking about mental health checks. But it’s really just barely scratching the surface of records that might be relevant.”

“We don’t know where they are kept,” Harlow said, referring to the mental health records that public safety officials might want to submit to the FBI database. “There is no central repository. You are relying on an individual to say that I will waive all my privacy rights and contact my mental health professional to provide those records” to get a gun license. That release is not likely to happen, he said, especially by someone with ill intent.

Harlow said that some states require people who are applying for gun licenses to waive their HIPAA privacy rights, but “the next step is who do you show that waiver to,” he said. “That takes you back to the start of relying on the applicant for disclosure and to identify various mental health providers.”

When it comes to local government social workers—who supervise mentally ill people—Bonnie said that there already are “legal and ethical” requirements to take many steps to intervene. But these options, which involve sharing client information in a manner that HIPAA allows, don’t necessarily start with police involvement, which is what makes them effective. In contrast, New York’s new law requires mental health professionals to quickly report potentially worrying cases to the police, who will review whether they have a gun permit, revoke that permit if one exists, confiscate the firearms, and require that person to follow prescribed treatments.

“There are now legal and ethical requirements to take action,” Bonnie said. “There’s the hospital commitment process; notification of potential victims; calling a family member to ask if there is a gun in the house—telling them to remove it. Steps can be done without an explicit [police] reporting requirement. That would be the best way to handle it.”

“I don’t like the New York law,” he said. “I think, fundamentally, what we want to do is leave the decisions about how to respond in a clinical context—and by that I mean by the psychiatrists and other physicians—to those experts; to exercize their clinical judgment without facing constraints with the best way to respond to a patient who may be in crisis, or may be a threat to himself or others, or may have access to a gun.”

New York’s new law “seems to create a process that is outside of going through the courts and getting a judicial determination before steps are taken that would revoke gun licenses and confiscate guns,” Bonnie said. “In Virginia, there were HIPAA questions about getting data from the mental health system into the judicial system. These can be overcome if they are tied to a judicial process. Both procedures are required under state law tied to commitment proceedings.”

“It’s so complicated,” said Ruth Bernheim, Chair of University of Virginia’s Department of Public Health Sciences, referring to changing how mental health information is kept and used for state and federal background checks for gun buyers.