In response to the school shootings, especially Parkland Florida (before Great Mills, Maryland), our consultant Tom Croke wrote what follows and placed it online at Linked In. We also have created this page for our readers to see it. (To see it on that site become a member, sign in, and then enter the following in the search panel: "Mental Health and Mass Shootings" Croke)
We at FamilyLight support the Second Amendment. We also support some restrictions that the Supreme Court says are constitutional, including and not limited to universal background checks. Almost all recommendations for Mental Health improvements that we have heard not only have appeared to be a distraction to take attention away from gun restrictions but also a distraction from serious proposals about Mental Health services.
We anticipate additional comments on this topic in the near future. We usually put this kind of commentary in the Member/ Subscriber section of our website so payment is required to access the page. With this issue we are not doing that here. It is too important an issue to place this restriction.
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Here is what Tom wrote:
The recent school shooting in Parkland Florida has, not surprisingly, prompted further discussion of gun laws, mental health and preventative identification of people who have potential to engage in such actions. My focus is mental health. Most of what I hear regarding improvement to funding and delivery of Mental Health to is not only distracting from the gun debate, but is also distracting from the real issues surrounding mental health and mass shootings.
My hope is to draw the energy and attention of our best experts into a serious discussion of how improvements in delivery of mental health prevention and treatment services could make a positive difference. Here I am referring to lawyers, mental health clinicians and researchers. My own situation is that I have worked a half century in capacities that require some knowledge of mental health issues, including directing clinical facilities, advising judges on matters related to addiction and mental health, marketing for addiction and mental health services, and consulting with families seeking mental health services. I hope to point this conversation in the right direction, although the input of others with specific areas of expertise which I lack will be needed to get all of the details right.
Too often I have had client families who well understood that a family member had serious mental illness AND had reason to fear that this family member might well be the next mass shooter. And we could do NOTHING about it. This has arisen most frequently among my client families where the person of concern showed evidence of a thought disorder, but denied any problem. In each case we made certain that local law enforcement was aware of the situation. We could do no more. In several of these situations, after we spent many hours engaged in coaching the family and many months went by, the young man accepted treatment. Diagnoses ranged from schizophrenia and bipolar I to drug induced psychosis. In one such case we, we never did get a firm diagnosis, because the young man refused to be evaluated. He currently lives in a small city where the local police remain very alert to his presence.
For all the talk about improving background checks and improving access to mental health services, no one seems to be talking about either the most serious obstacles to having effective mental health intervention or the real obstacles to identification of people who should not have guns due to mental health issues. When people want to distract from gun control advocacy, they often propose throwing more money at mental health resources. I certainly would not mind seeing additional resources for mental health. We need funding for more and better resources, wisely applied. But getting results calls for a more careful look than just trying to throw money at the problem.
THE REAL ISSUES
We can see a pattern here. Several mass shootings have been perpetrated by people who had been offered mental health services and refused them. If we research all of the news coverage of the shooting at the Mother Emmanuel AME Church in Charleston SC, we find multiple reports that the convicted shooter repeatedly denied that he was mentally ill and refused services offered to him. According to multiple press reports, his efforts at trial appeared to be focused on proving that he was not mentally ill, rather than defending himself against the actual charges or seeking consideration for his illness at sentencing.
Currently, an adult (18 and up) who is mentally ill has complete freedom to choose whether he or she will receive mental health services except when he or she is found to present an IMMEDIATE threat of harm to self or others. Interpretation and implementation of this standard does vary somewhat from jurisdiction to jurisdiction. The fact that the person is known to be at risk for perpetrating a massacre of several hundred people next week is not likely to be a factor in determining “immediate harm to others” in most in most jurisdictions. It would likely lead to an involuntary civil commitment in most jurisdictions if the massacre were likely to occur in the next hour or so.
In addition, the people who assessed this person for this kind of risk may not pass the information to law enforcement to enter the name on the “no firearms” database. Even if the person is committed to a psychiatric hospital due to risk of immediate harm, in most cases confidentiality laws that have been in place for a long time prevent putting that information into a data base of people who may not purchase firearms. The hospital records would be confidential; the court action ordering the commitment might be accessible, and therefore deliverable to the data bases. Would the fact of an involuntary commitment without any additional clinical information warrant loss of gun privileges?
The clinical and legal folk who actually make judgments about what I am writing will likely object to my over-simplification of the issues. Good. I want them to do that – and to fill in with greater precision and detail what is actually at issue here. But I am quite certain that knowledgeable folks who will call me out for oversimplification will not tell you I am barking up the wrong tree. I am not and I will not be contradicted for how I describe the “big picture” by the people making these judgments in the trenches. The details they can add are important. Let the discussion and/ or debate begin.
The law must be changed. Changing the law will not be easy. Several decades ago, thousands of mental health patients were being warehoused in the back wards of state mental hospitals. These actually operated more like prisons than hospitals. One Flew Over the Cuckoo’s Nest was not too far off in its depiction of what these places were really like. Advocates for the mentally ill succeeded in getting those places closed and sparked the transition to what was called “deinstitutionalization.”
They also succeeded in getting privacy laws passed that specifically blocked disclosure of information without patient consent, no matter how mentally disabled the patient was. Even immediate family of a person with an ongoing psychosis could not get information without the person’s consent. Conservatorships and guardianships provided some easing of that, but they became harder to obtain and in some jurisdictions (New York City, for example) the legal expense became prohibitive except for the most affluent. I have been advised by legal counsel that in Pennsylvania, courts do not have the authority to access records of a private therapist treating a teenager even when presented with compelling evidence that not to do so could cause severe harm to the teenager or others.
HIPPA – FACTS AND MYTHS
All of the above is apart from the “HIPPA” law. The original purpose of the HIPPA law was to facilitate the necessary flow of information between health care providers and insurers. That law does that well. However to open up that form of communication without denying people a right of privacy, “safeguards” had to be built in to prevent information from falling into the wrong hands. These “safeguards” which also serve a very useful purpose for most people receiving care also block some kinds of common sense communication, including notifying the agencies that keep lists of people who should not pass a background check for a would-be gun purchaser.
(Note: The HIPPA law by itself does not block communication. Each provider sets its own standards for communication and disclosure and requires patients to sign a document annually accepting those standards. The arcane requirements for disclosure that many consider bothersome are all about communication and disclosures that were not part of what is authorized in the document the patient signed accepting those standards. We know one mental health facility, that ducks the whole issue by giving legal notice they do not observe confidentiality.)
The point here is that the opposition to any relaxation of the “immediate harm to self and others” standard and/or relaxation of privacy protections for mental health patients will be vigorously opposed by the same mental health advocates that brought about reforms several decades ago. In most situations we agree with these advocates and would not want relaxation of the current standards and legal protections without extreme caution and careful work on wording laws passed so as not to promote unintended negative consequences. Unfortunately, SOME of those advocates will simply oppose any change on the theory that any relaxation will start a trend toward return to the conditions exemplified by One Flew Over the Cuckoo’s Nest.
I understand that changes in law regarding information sharing can be effected by legislation. However getting such legislation passed would meet very strong and well organized opposition and would, in any case, be difficult to craft without creating some very problematic unintended consequences. We do need the input from the advocates to ensure that these changes, if enacted, do not lead to serious abuses. I expect those advocates to be highly skilled at spotting unintended negative consequences.
CONSTITUTIONAL ROADBLOCKS AND POSSIBLE SOLUTIONS
The larger problem is the standard of “immediate harm to self or others.” The problem, stated in the most general terms, is that in addition to opposition from advocates for the mentally ill, relaxation of this standard would almost certainly run afoul of prior interpretations of the Fourth and Fourteenth Amendments to the United States Constitution. Passing a constitutional amendment that would actually impact roadblocks to getting mental health treatment to the treatment resistant, or to relax the Second Amendment is simply not going to happen any time soon. We leave any more detailed explanation of the legal basis for this problem in the hands of our friends in the legal profession.
I had initially expected to find and cite a Supreme Court of the United States (SCOTUS) decision that set the current standard in place. When pursuing that research I found that I could not narrow this down to a single decision. I could find no single decision which, by itself, established that the criterion of “IMMEDIATE harm to self or others” as currently interpreted by clinicians and legal experts. Several related decisions, when combined, appear to be responsible for that standard. For readers who are willing to be “armchair lawyers,” this article on the topic of legal decisions and deinstitutionalization will facilitate understanding the legal framework surrounding that criterion and will guide you to several court actions.
Here is a key question: Could states pass laws that would challenge the interpretation of the word “immediate” in the “immediate danger to self or others?” I note that SCOTUS is now much more conservative than it was during the period when the relevant past decisions were issued. As such, the current Supreme Court might be a bit less protective of the civil rights of the mentally ill, and authorize disclosure and mandatory treatment in cases where risk of a mass killing is well documented but perhaps not quite so immediate. Here is where we really need help from the professionals, legal and clinical, actually in the trenches on this. With serious discussion on these issues, in greater detail than I can provide, perhaps we could get a proposal of state legislation that broadens authority to intervene and disclose. This law would be a bit outside the guidelines of all past SCOTUS decisions. Would it have a good chance of being allowed by the current more conservative SCOTUS?
One other possible approach that would be to require any person who owns or wishes to acquire a firearm be required to apply for a license to do so. The licensing process suggested here would include a requirement that the applicant authorize the licensing agency to acquire mental health records. This proposal would run into vigorous political opposition. Would it be seen by the courts as unconstitutional? This would mean that in order for a person exercise his/ her Second Amendment rights, he/ she must submit to a very invasive personal inquiry. Would SCOTUS allow that?
My proposal is that well qualified experts investigate ways of intervening in situations that have the known potential for this kind of tragedy that do not run afoul of the United States Constitution. We would need some modification to the definition of “risk of immediate harm to self or others.” Must “immediate” be part of that? Can we alter the past understanding of “immediate?” Might SCOTUS approve an exception for people whose pathology prevents them from understanding their own mental illness? Clearly that particular disability creates a danger for that person and in some cases others. It just is not an illness that predicts that the danger will present itself in acute form immediately – or at any other particular, definable time. Where medically appropriate, and as a specific treatment for this particular disability, could the court also approve requiring people to accept long acting injectable antipsychotic medication?
ONE FOUNDATION SEEKS SOME VERY SPECIFIC CHANGES
One very serious effort to provide for residential treatment for people who might otherwise refuse treatment is currently underway in New York City. Real Estate Developer Francis Greenburger has created the Greenburger Center for Social and Criminal Justice. This particular effort targets people with mental health problems who are also in the criminal justice system. I have had the privilege of speaking with Mr. Greenburger about this. He is interested in creating a treatment center that people can only enter voluntarily, but when they do they sign a consent to be held at that program until they have accomplished what they were there to accomplish. Once signed in by their own choice, they would have no option to leave until the clinical staff determined that was a safe and appropriate choice. We are unaware of any state that would currently license such a facility, but it is an interesting concept. Could we change state laws to allow such facilities? Would those changes in state law be constitutional? This is where we need the legal experts to weigh in.
I strongly suspect that if what I have written here gains serious traction, mental health advocates will challenge my thinking. Good. We need their input here. I am not interested in going back to the mental health practices of the 1950s and before. If for no other reason we need their participation to keep this system accountable and not leading to exploitation.
Note on "Our best experts:" I am neither a licensed clinician nor a lawyer. We need both to enter this discussion in order to get the best outcome. Return to link to this note.
Thanks to Phil DeBoard, Helen Croke, David Altshuler, Lee Croke for editorial suggestions.
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Last Update March 20, 2018