State Laws Provide New Tools for Removing Guns From Individuals at Risk

Psychiatrists practicing in states that have enacted gun violence restraining order laws might have a greater obligation to warn family members or law enforcement in cases of patients who may be at risk of harming themselves or others.

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As the nation grapples with increasing gun violence and suicides, 13 states have enacted gun violence restraining order laws, also known as extreme risk protective orders (ERPOs), or red flag laws, and more states are considering such an approach. At least 38,000 people died in the United States from gun violence in 2016, according to the most recent government data, and two-thirds of those deaths were suicides.

The laws vary by state, but all allow law enforcement to initiate gun removal in cases where individuals pose a risk of harming themselves or others and require a low burden of proof. Some states allow family members to petition for gun removal. Most states exclude mental health professionals as potential petitioners, but at least one state—Maryland—permits psychiatrists and certain other mental health professionals to initiate proceedings.

“We might be privy to certain knowledge that family members or friends don’t have about patients’ state of mind and intentions,” said Joseph Chien, D.O., an assistant professor of psychiatry at the Oregon Health and Science University and staff psychiatrist at the Portland VA Medical Center. “At the same time, there are ethical issues that must also be balanced: protecting patient confidentiality and maintaining the doctor-patient relationship.”

In cases where patients seem to be a danger to themselves or others, psychiatrists should consider their duty to warn and protect, wrote Chien and William Frizzell, M.D., in the November 5, 2018, Psychiatric Services in Advance. They teamed up to write an article about ERPO laws after Oregon passed its law. “From a medical-legal perspective, invoking an ERPO law might be seen as a prudent and even expected intervention for suicidal patients with firearms.”

“Psychiatrists might be held liable for not informing law enforcement or family members about a patient’s gun if they knew about it and other people didn’t—and the gun is used in a suicide or other violent act,” Chien told Psychiatric News.

The laws are new, and more study is needed, but initial evidence shows that seizing guns from troubled individuals is associated with a reduction in suicides and provides a needed “cooling off period,” they wrote. So far, Oregon’s law is being used fairly frequently. About 40 Oregonians were not permitted to possess firearms in September 2018, according to an Oregon State Police spokesperson.

Chien works on an inpatient psychiatry unit at the VA medical center, where he sometimes admits patients who are suicidal or occasionally homicidal and also own firearms and are trained in their use. “We know that suicide is often an impulsive act. Helping to make access to firearms more difficult can give people more time to reconsider their actions. The more readily available a firearm is, the more likely it is to be used.”

Connecticut and Indiana were the first states to enact such laws, in 1999 and 2005, respectively, after mass shooting tragedies there, followed by California in 2014. Initial research has shown these laws to be effective: Firearm suicides have dropped by nearly 14 percent in the past decade in Connecticut, according to a study published June 1, 2018, in Psychiatric Services in Advance. For every 10 to 20 guns seized under the state’s law in Connecticut, one suicide was prevented, a 2016 study in Law and Contemporary Problems concluded.

The number of states with ERPOs more than doubled after a high school shooting in Parkland, Fla., in February 2018 that claimed the lives of 17 people. The sheriff in that case said he had received tips about the 19-year-old alleged gunman’s threats to stage a school shooting in the year or two prior but lacked the legal basis for confiscating his weapons. Now, Delaware, Florida, Illinois, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington have passed ERPO-type laws as well.

Debra A. Pinals, M.D., chair of APA’s Council on Psychiatry and Law, disagreed with the notion that these state ERPO laws necessarily expand the obligations of psychiatrists. Rather, she said, in all states, regardless of whether or not an ERPO law is in effect, psychiatrists already have an obligation to protect patients from harming themselves or others and can seek hospitalization if they are concerned, said Pinals, who also serves as director of the Program in Psychiatry, Law, and Ethics at the University of Michigan Medical School.

These ERPO laws are primarily aimed at the lay public, not at mental health providers, she added. One advantage of these laws is that they allow family members, who are often the first to know about a problem, as well as close friends and colleagues, to have firearms confiscated from an individual at risk, without a clinical determination that an individual has a mental illness, Pinals said.

Unlike the notion of creating a national registry of individuals with mental illness to deny them gun registry—an idea often floated by the National Rifle Association and some politicians after mass shooting tragedies—ERPO laws focus on the acute dangerousness of an individual. “So whenever someone sees another person who presents a risk related to firearms, regardless of the reason, these laws provide an option to help mitigate the risk,” Pinals said.

Ultimately, psychiatrists should familiarize themselves with the particulars of the ERPO law in their state, said Pinals. She encourages psychiatrists to consider all options related to patient safety, including working with family members or others to seek gun removal from at-risk patients. ■