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Emergency Medicine News:
doi: 10.1097/01.EEM.0000428932.73158.50
At Your Defense

At Your Defense: Should EPs Report Patients Likely to be Dangerous?

Reyes, Carlo MD, JD

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Dr. Reyes is the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of healthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.

July 20, 2012. The opening night of “The Dark Knight Rises.” James Holmes opened fire in a theater in Aurora, CO, shooting 70 people using an arsenal of semi-automatic weapons. Ten of them died.

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Dec. 14, 2012. Adam Lanza killed 20 students and six adult staff at Sandy Hook Elementary School in Newtown, CT, with a .223-caliber Bushmaster XM 15-E2S semi-automatic rifle. All 20 students were under age 8.

The New York legislature, in response to the Newtown massacre, passed the New York Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013, which has a provision that requires mental health professionals to report a patient that is “likely to engage in conduct that would result in serious harm to self or others” to local mental health officials. It also gives law enforcement the authority to remove firearms from a person deemed potentially dangerous.

The Newtown and Aurora tragedies should make all of us scream, “Enough is enough!” We need to make our society safer. A law that prevents a dangerous person from possessing a gun should be universally supported. But the devil is in the details. Do the provisions of the SAFE Act actually prevent dangerous people from possessing guns? At what cost? Should physicians be required to breach the duty of confidentiality owed their patients based on an assessment that they are “likely” to be dangerous?

A Mixed Bag: The SAFE Act, like other mandatory reporting laws for elder abuse, child abuse, and intimate partner violence, require a physician to breach the duty of confidentiality usually afforded to patients. Physicians have accepted the notion that elder and child abuse laws reduce abuse. (Virtual Mentor 2007;9[12]:842.) Implementation of the act may have unintended effects similar to the potentially negative effects of mandatory intimate partner violence reporting. Physicians fear that reporting intimate partner violence increases the likelihood that the aggressor will be violent against the patient seeking help. (Virtual Mentor 2007;9[12]:843.) That could lead to a victim not seeking medical help to avoid making the aggressor angry. Similarly, mandatory reporting of potentially dangerous persons may have a chilling effect, discouraging persons from seeking mental health treatment for fear of law enforcement scrutiny. The law may actually increase the rate of violence by creating a barrier to mental health treatment in both cases. The American College of Emergency Physicians and the American Medical Association oppose mandatory reporting laws for intimate partner violence for this reason.

Some mental health professionals have voiced disapproval of mandatory reporting laws for patients that are likely to be dangerous. Psychiatrist Rebecca Reyes, MD, JD, cautioned: “Patients who really need mental health treatment may not seek it if they fear that the police may go after them as a result of seeking treatment.”

Dilip V. Jeste, MD, the president of the American Psychiatric Association, emphasized “access to comprehensive, effective psychiatric treatment” as our public policy-makers' primary goal in a Dec. 20 letter to leaders of Congress. Interestingly, the APA supports laws that permit “the temporary removal of firearms from individuals believed to be imminently dangerous.” The word “imminent” suggests a standard similar to that used for involuntary psychiatric commitment. But the SAFE Act requires a mental health professional to report patients likely to be dangerous, even if not imminently so, and it may encourage over-reporting of patients who are not imminently dangerous. It creates a unsettling effect that would be a barrier to mental health treatment for patients who would profoundly benefit.

Not an Exact Science: Intimate partner violence laws do not require a prediction because the abuse has already occurred while the SAFE Act requires reporting patients who are likely dangerous. Mental health professionals typically identify imminently dangerous patients by asking if they want to harm themselves or others right then. But how accurate is a mental health professional's prediction of a patient's likely future conduct?

The “science” of predicting future dangerousness has been widely researched because of its importance in important legal and medical contexts, including assessing criminals for the death penalty, likelihood of repeat sexual offense, and psychiatric commitment. (Virtual Mentor 2012;14[6]:472.) Courts routinely rely on dangerousness predictions, but legal commentators acknowledge that such predictions are often unreliable. Our society expects doctors to cure all disease, alleviate all pain, and predict future dangerous behavior. Unfortunately, these lofty expectations can be read in between the lines of the act by not only requiring physicians to report likely future dangerousness, but also requiring physicians to identify this likelihood in an accurate, reliable manner.

To Report or Not Report: The SAFE Act may spur other states to create similar laws in accordance with federal mandate to increase gun violence awareness and improve mental health access, but it may be a double-edged sword with both ends pointing at the mental health professional (and the emergency physician initiating a medical detainment pending psychiatric evaluation). Physician reporting under the law clearly breaches physician-patient confidentiality. An immunity provision in the act may protect them from good faith reporting, but a standard by which one determines if someone is likely dangerous is not generally accepted. I predict that the courts may eventually adjudicate whether a physician used a reasonable standard for predicting future dangerousness in an action where the physician is charged with not reporting a dangerous person.

Nevertheless, the immunity provision may give mental health professionals the protection needed to report dangerous persons, and prevent them from possessing guns. Carolyn J. Sachs, MD, MPH, an emergency physician and commentator on mandatory reporting laws for intimate partner violence, said the act gives therapists and physicians a legal means to remove guns from those that are likely to hurt people, and even if it means violating patient-physician confidentiality. “The stakes are so high that violating it may be warranted,” she said, noting her concern about the mandatory nature of the act, but adding that “at least it gives a physician permission to try to prevent these tragedies.”

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© 2013 Lippincott Williams & Wilkins, Inc.

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