January 31, 2013

Focus on Mental Health Laws to Curb Violence Is Unfair, Some Say

By ERICA GOODE and JACK HEALY

In their fervor to take action against gun violence after the shooting in Newtown, Conn., a growing number of state and national politicians are promoting a focus on mental illness as a way to help prevent further killings.

Legislation to revise existing mental health laws is under consideration in at least a half-dozen states, including Colorado, Oregon and Ohio. A New York bill requiring mental health practitioners to warn the authorities about potentially dangerous patients was signed into law on Jan. 15. In Washington, President Obama has ordered “a national dialogue” on mental health, and a variety of bills addressing mental health issues are percolating on Capitol Hill.

But critics say that this focus unfairly singles out people with serious mental illness, who studies indicate are involved in only about 4 percent of violent crimes and are 11 or more times as likely than the general population to be the victims of violent crime.

And many proposals — they include strengthening mental health services, lowering the threshold for involuntary commitment and increasing requirements for reporting worrisome patients to the authorities — are rushed in execution and unlikely to repair a broken mental health system, some experts say.

“Good intentions without thought make for bad laws, and I think we have a risk of that,” said J. Reid Meloy, a forensic psychologist and clinical professor at the University of California, San Diego, who has studied rampage killers.

Moreover, the push for additional mental health laws is often driven by political expediency, some critics say. Mental health proposals draw support from both Democrats and Republicans, in part because, unlike bans on semiautomatic weapons or high-capacity magazines — like the one proposed in the Senate last week — they do not involve confrontation with gun rights groups like the National Rifle Association.

“The N.R.A. is far more formidable as a political foe than the advocacy groups for the mentally ill,” said Dr. Jeffrey A. Lieberman, chairman of psychiatry at Columbia University and president-elect of the American Psychiatric Association.

Indeed, the N.R.A. itself, in response to the massacre in Newtown, argued that mental illness, and not the guns themselves, was at the root of recent shooting sprees. The group called for a national registry of people with mental illness — an alternative that legal experts agree would raise at least as many constitutional alarms as the banning of gun ownership.

For mental health groups, the proposals under consideration are tantalizing: By increasing services for those with mental illness, they raise the possibility of restoring some of the billions of dollars cut from mental health programs in recent years as budgets tightened in the financial downturn. The measures also hold out hope for improvement of a mental health system that many experts say is fragmented and drastically inadequate. And some proposals — those to revise commitment laws, for example — have the support of some mental health organizations.

But some mental health and legal experts say that politicians’ efforts might be better spent making the process of involuntary psychiatric commitment — and the criteria for restricting firearms access once someone has been forcibly committed — consistent from state to state. And some proposals have caused concern, raising questions about doctor-patient confidentiality, the rights of people with psychiatric disabilities and the integrity of clinical judgment.

Especially troublesome to some mental health advocates are provisions like New York’s, which expand the duty of practitioners to report worrisome patients — a model likely to be emulated by other states. New York’s law, part of a comprehensive package to address gun violence, requires reporting to the local authorities any patient “likely to engage in conduct that would result in serious harm to self or others.” Law enforcement officials would then be authorized to confiscate any firearm owned by such a patient.

John Monahan, a psychologist and professor of law at the University of Virginia, said that such laws are often superfluous.

Although many mental health practitioners mistakenly believe that federal laws like the Health Insurance Portability and Accountability Act forbid them to disclose information about patients, such statutes already include exceptions that permit clinicians to give information to the authorities when a patient presents a threat to others, Dr. Monahan said.

Most states also have laws requiring mental health professionals to notify the authorities and any intended victim when a patient makes a direct threat.

New York’s provision, Dr. Monahan said, differs from virtually every other state’s laws in allowing guns to be taken not only from those committed against their will but also from patients who enter treatment voluntarily.

“The devil is in the details,” he said of New York’s new law. “The two fears are that people will be deterred from seeking treatment that they need or that, once they are in treatment, they will clam up and not talk about violence.”

Most mental health experts agree that the link between mental illness and violence is not imaginary. Studies suggest that people with an untreated severe mental illness are more likely to be violent, especially when drug or alcohol abuse is involved. And many rampage killers have some type of serious mental disorder: James E. Holmes, accused of opening fire in a movie theater in Colorado in July, was seeing a psychiatrist who became alarmed about his behavior; Jared L. Loughner, who killed 6 people and injured 13 others in Arizona, including former Representative Gabrielle Giffords, was severely mentally ill.

But such killings account for only a tiny fraction of gun homicides in the United States, mental health experts point out. Besides the research indicating that little violent crime can be linked to perpetrators who are mentally ill, studies show that those crimes are far more likely to involve battery — punching another person, for example — than weapons, which account for only 2 percent of violent crimes committed by the mentally ill.

Because of this, some criminal justice experts say it makes more sense to pass laws addressing behavior, rather than a diagnosis of mental illness. In Indiana, for example, firearms can be confiscated from people deemed a potential threat, whether or not they have a mental illness.

Proposals in a number of states seek to redefine the threshold for involuntary commitment to psychiatric treatment. But in doing so, they have reignited a longstanding debate about the role of forced treatment.

In Ohio, lawmakers are expected to consider a proposal to increase access to outpatient commitment instead of hospitalization, while also doing away with language requiring people with mental illness to show a “grave and imminent risk to substantial rights” of themselves or others before they can be committed.

In Colorado, where legislators are undertaking a broad overhaul of the state’s mental health system proposed by Gov. John W. Hickenlooper, a Democrat, the proposal also includes changing the criteria for involuntary commitment.

Under the state’s current laws, caregivers can place patients on 72-hour mental health holds only if they are believed to pose an “imminent danger” to themselves or others. The governor’s plan would allow caregivers to commit people if they believe there is a “substantial probability” of harm. Virginia and some other states already have standards based on “substantial probability.”

But some mental health advocates are wary about lowering the threshold. “The evidence that we have tells us that that’s not an appropriate solution, it’s not an effective solution to this problem,” said Jennifer Mathis, deputy legal director at the Bazelon Center for Mental Health Law, an advocacy group for people with psychiatric disabilities.

But Cheryl Miller — whose 21-year-old son, Kyle, was shot by the police last June after he pointed a toy gun at them — believes that a revised law might have saved her child.

Two weeks before Kyle was killed she took him to an emergency mental health clinic to get him hospitalized. But the staff refused to commit him.

“I said, ‘I don’t want to take him home; he needs to go to the hospital,’ ” Ms. Miller said. “They didn’t think so. It goes back to, was he an imminent danger to himself? And it was ‘No.’ ”