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

Human Rights

On Wednesday, President Obama said strengthening background checks for gun buyers was one of the key features of his package of gun control reforms, before he signed an executive order telling federal agencies to “clarify that no federal law prevents healthcare providers from warning law enforcement authorities about threats of violence.”
And on Tuesday, the fine print of New York’s new gun-control law—rushed through its legislature and signed that day by Gov. Andrew Cuomo—went even further. New York is now requiring mental health professionals to report any mental illness that could lead to violence to police agencies. The police, in turn, will use that referral to revoke any gun license issued to that person, confiscate any guns they own (but pay them), and possibly order forced hospitalization if that person doesn’t follow a treatment plan.

These steps—from the White House issuing executive orders to try to get more and better information into the FBI’s national background check database for gun buyers, to what New York’s Gov. Cuomo is calling the nation’s “most comprehensive” gun law—are conveying to Americans that better gun buyer background checks are on the horizon.

But health law and policy experts say both the White House—and to a much greater extent, New York state—are overpromising what can be delivered in the near future to strengthen gun buyer background checks, especially when it comes to including and acting on mental health records and information.

“There’s a lot of technical stuff embedded in these issues,” said Richard J. Bonnie, a public policy professor at University of Virginia’s law school who led his state’s review of its gun laws after the 2007 Virginia Tech shooting that left 33 people dead. “My own view is this is worth doing—trying to make the system have the data that the system is designed to have. But trying to make the system as good as it can be is a big challenge. It’s a bigger challenge than people are willing to indicate.”

The public discussion following the Sandy Hook school shooting in December has included calls for more and better background checks for gun buyers.

On the "more" side of this ledger, was Obama’s call for “universal” background checks. In 1986, Congress created a loophole for buying guns privately at gun shows, with no background check by the FBI. Forty percent of all guns are now sold this way. On the "better" side of this equation is submitting more mental health information to federal and state gun licensing databases, which, as Bonnie said, gets complicated.

The federal background check system is hardly all that it can be, for a variety of reasons.

The first reason is states don’t have to participate if they don’t want to. They can decide what mix of court records—from criminal matters to mental health orders—to submit, as a result of a 1997 Supreme Court decision authored by Justice Antonin Scalia. “A recent report by the Government Accountability Office found that there are still 17 states that have made fewer than 10 mental health records available,” the White House said in a report issued Wednesday, highlighting this gap.

“If they don’t want to do it, they can’t be made to do it,” said Bonnie, referring to the Supreme Court ruling about state’s compliance with the 1994 Brady Bill, which created a nationwide system of gun background checks.     

What Congress has done since the 1997 ruling and what the White House proposed on Wednesday, is to offer states new money to create the technical and administrative capacity to collect and submit the background check data. In many states, the lack of political will, incompatible state and county computing systems, and varying mental health systems from county to county are sizeable obstacles, Bonnie said.

Mental Health Privacy Laws

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.

And because it’s complicated it will take a while for New York and federal agencies to improve the process of integrating mental health records into gun background checks.

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