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Disruptive Innovation

Risk-Based Temporary Firearm Removal Orders: A New Legal Tool for Clinicians

Swanson, Jeffrey W. PhD; Nestadt, Paul S. MD; Barnhorst, Amy V. MD; Frattaroli, Shannon PhD, MPH

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Harvard Review of Psychiatry: 1/2 2021 - Volume 29 - Issue 1 - p 6-9
doi: 10.1097/HRP.0000000000000278
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On a rainy Northern California morning in January 2001, a delusional, fearful, and enraged psychiatric patient named Scott Harlan Thorpe walked into a county behavioral health department and opened fire with a semi-automatic handgun. Nineteen-year-old Laura Wilcox, a college student working in the clinic, died in the shooting.1 She became the namesake for “Laura’s Law,” California’s 2002 involuntary outpatient commitment statute (mandating outpatient treatment).2

The sad irony of naming a mandatory community treatment law for the victim of a shooting that happened inside a mental health clinic invites a serious policy question: would Laura’s eponymous law have saved her own life—that is, if such a law had been used to ensure that Mr. Thorpe came to clinic? Maybe not; mental health treatment so far had not cured his delusions and anger, and a clinic is where the tragedy occurred. Alternatively, what if an innovative law had been in place, empowering Mr. Thorpe’s clinicians to petition a court to temporarily remove his cache of firearms and prohibit him from purchasing new ones?

Existing gun laws had not deterred Mr. Thorpe from legally acquiring guns; he had no gun-disqualifying criminal record or history of involuntary commitment. Like too many people in the United States each year who fatally injure another person or themselves with a firearm, resulting in approximately 40,000 deaths,3 Mr. Thorpe could have passed a gun-purchase background check on the day that he killed Laura Wilcox. But people around him, including his family and clinicians, had actually been afraid that he might do something violent. Would a risk-based, time-limited, civil restraining order separating Mr. Thorpe from his guns have made the difference? But for his legal access to such an effortless and efficient killing technology, could the story have had a less horrific ending?

In 2014, California became the first state to enact a law authorizing “gun violence restraining orders” (GVROs),4 also known as “extreme risk protection orders” (ERPOs). Similar laws enabling law enforcement officers with a court order to temporarily seize firearms from people behaving dangerously had existed in Connecticut since 1999, and in Indiana since 2006.5 For decades, domestic violence protection orders had provided a mechanism for temporarily removing guns from abusive intimate partners. California’s GVRO was the first statute not focused on domestic violence to allow concerned family members—without going through the police—to ask a civil court to issue an order to temporarily prohibit firearm purchase and possession by a person at risk of causing serious harm with a gun.

As of June 2020, 19 states and the District of Columbia have enacted some version of an ERPO law,5 and the public (including most gun owners) broadly supports them.6 However, only three jurisdictions to date—District of Columbia, Hawaii, and Maryland—authorize clinicians to initiate ERPO petitions. Should other states consider expanding the petitioner list beyond family members and law enforcement to include health care providers? In what follows, we address the pros and cons of including clinicians—physicians and other primary and mental health care providers—as key actors in a legal process designed to temporarily remove guns from people exhibiting dangerous behavior. We describe features of the policy that are potentially disruptive to practice-as-usual, but also the ways in which the policy may contribute an innovative solution to a costly public health problem. Despite some concerns, we argue in favor of putting this legal tool in the hands of clinicians, with important statutory conditions.

On the positive side, clinicians are in a unique position to obtain and evaluate time-sensitive information about a patient’s risk of harmful behavior and access to guns. They could use such information judiciously to target ERPOs to the small minority of patients who are at high risk of misusing firearms. Clinicians could be particularly helpful in identifying individuals at risk of suicide, the most common safety threat that ERPOs address in the states where they have been studied.5 Clinicians are generally trusted as credible experts in court proceedings, and their professional authority could minimize the concern that ERPOs will be used inappropriately.

When not permitted to petition for ERPOs themselves, clinicians may recommend that local law enforcement do so. Police do not always agree, however, with an indirect, third-party recommendation, and the authors have been involved in several cases in Maryland in which law enforcement has resisted filing ERPOs requested by clinicians. Also, in communities where relationships with police are fraught, a clinician-initiated removal of someone’s firearms as a safety measure could be more acceptable than if the request had come from the police. Gun-removal orders originating with a clinician might give a sense of legitimacy to the process for community members who do not readily trust police motives, especially given the national focus on racism, police misconduct, and the urgent need for reform.

At some point, law enforcement inevitably becomes involved in every ERPO. But perhaps in many cases, having the initial process and notification begin with a health care provider—someone who is already in a helping role in the patient’s life, has no punitive baggage, and sees this intervention through a lens of patient care and safety—may be better received and may actually work better than if the process was police initiated. That said, we have no empirical evidence to date on how people might respond differently to an ERPO depending on its originator; this important question awaits an answer from research.

In sum, authorizing clinicians as ERPO petitioners could help to efficiently reduce access to firearms among certain high-risk individuals—both by removing their guns and preventing the legal purchase of additional guns—during a period when dangerous behavior can be anticipated. Clinician involvement in ERPOs could also help to frame gun violence as a public health problem, rather than primarily a criminal concern. Temporary gun removal initiated by a caring and trustworthy clinician, accompanied by legal due process, could protect the patient and surrounding community in a way that is least adversarial.

On the downside, several factors might argue against clinician involvement in ERPOs. For one, clinicians’ risk assessments are often inaccurate.7 Considering mental health care in particular, the notion that providers need a legal tool to “disarm” their patients could send the wrong message and have a pernicious effect. State lawmakers have enacted ERPOs mainly in response to firearm homicides,8 a multifaceted societal problem having little to do with mental illness.7 The use of ERPOs in psychiatric care could thus reinforce harmful stigma around the (widely assumed but largely false) association between mental illness and dangerousness.

A clinician’s unilateral disclosure of a patient’s private health information for the purpose of convincing a judge to temporarily remove the patient’s firearms could be seen as a breach of trust and violation of patient privacy.9 Such a disclosure without the patient’s permission—in addition to the gun-removal action itself—could undermine the therapeutic alliance, alienating the patient from care and inhibiting further communication. In extreme cases, it is possible that an antagonized patient could retaliate against a clinician for a gun removal. There is no research evidence to calibrate this risk, but it would seem no more likely than a patient lashing out at a clinician for an involuntary detention order—a nontrivial but quotidian challenge in emergency psychiatry. Losing rapport with a patient through involuntary commitment or forcing medication can be challenging, but it is something that psychiatrists, at least, are familiar with and can routinely overcome in most cases; this is part of their skill set. What seems almost more problematic is the risk of a “chilling effect” that would prevent other gun-owning individuals from seeking needed help for mental health problems or honestly reporting their symptoms to a clinician.

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule permits disclosure of private health information without a patient’s authorization when the clinician “has a good faith belief that the disclosure . . . is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others.”9 But the preventive logic of an ERPO, as it applies in many cases, is to foreclose a person’s lethal opportunity before a specific threat is realized to ensure they will not have access to a gun in a future moment of uncontrolled rage or intoxicated despair—by removing firearms as a precaution. In the most urgent cases, a clinician’s ERPO petition would not run afoul of HIPAA, but what about a gun-owning patient who is clearly behaving dangerously but without an “imminent threat”?

Of greater potential concern to clinicians with respect to ERPOs is the prospect of a lawsuit for failing to petition for an ERPO. Consider a situation where the law would authorize a mental health care provider to initiate an ERPO, but the provider opts not to, and the patient later uses a firearm to harm him- or herself or others. Could the clinician in such a case be held liable in a tort action from parties injured by the patient’s (allegedly preventable) act? Maryland psychiatrists have expressed concerns that the law, as it stands, exposes them to such liability. This perception may discourage some clinicians from asking patients about firearm access, for fear of opening a legal can of worms.

Practical hurdles threaten to obstruct the path to implementing clinician-initiated ERPOs. Dealing with the bureaucracy of filing an ERPO can be time-consuming for a clinician, especially when the process may require two in-person court appearances. Changes to normal practice for clinicians and the perception of new obligations associated with using ERPOs could create resistance. On this politically fraught topic, and in a policy arena as complex and burdened as health care practice for patients in crisis, clinician-initiated ERPOs could face stiff headwinds.

In short, several possible disadvantages would seem to militate against a policy that broadens the scope of routine clinical concern to include patients’ firearm access and risk of misuse, and creates the expectation that clinicians step out of their therapeutic role and engage with the legal system to prevent gun violence. For clinicians, the question becomes: is this a promising policy innovation that could save lives, or an insidious example of “mission creep” that could broadly undermine patient trust and become a minefield of liability?

Our position is that ERPOs are a potentially useful tool for clinicians to use, at their discretion, when they possess clear information about patients who pose a significant risk of harm and have access to firearms. By “clinician” we mean any physician, any primary care provider such as a nurse practitioner, or any mental health care provider such as a psychologist, licensed counselor, or clinical social worker. Different states may consider reasons for establishing a narrower list of authorized clinicians—indeed, there is variation among the existing statutes—but our recommendation provides for wider potential use of ERPOs, without determining in advance which types of clinicians might reasonably encounter a patient who poses a significant safety threat with a gun.

Clinicians occupy a strategic position to intervene when timely, temporary removal of firearm access is likely to provide a safety benefit to the patient and the public. For example, an ERPO could serve a lifesaving role as part of a hospital discharge plan for a patient with a history of suicidality. In two recent Baltimore cases, ERPOs allowed for earlier discharge of inpatients who would not have been safe at home with guns. Removing guns from the home might make home the safest place for a suicidal patient to heal, in a familiar environment among family and support systems, thereby shortening or averting psychiatric hospitalization. While other tools may accomplish the same goal, their uses are limited. For example, asking a family member to voluntarily store a suicidal person’s firearms for safekeeping could be effective, but laws in some states preclude such arrangments (or do not clearly permit them). Also, in many cases no available family member is willing to accept the responsibility and potential liability.

ERPO statutes should provide limited legal immunity from tort liability for clinicians who exercise discretion in good faith about whether or not to petition for an ERPO, similar to existing immunity provisions for some civil commitment decisions. Regarding the HIPAA Privacy Rule, clinicians would have to make a judgment call about whether to disclose a patient’s private health information for an ERPO petition—for example, when a patient has guns and is engaging in risky behavior that may not clearly constitute an “imminent threat to safety.” Such a judgment call would need to balance likelihood of harm from the patient in the near future against the possible consequences of breaking the seal of therapeutic trust.

In practice, the meaning of the phrase “imminent threat to safety” is somewhat elastic and depends on context. Some psychiatrists will associate the terminology with their state’s civil commitment criteria—language to be invoked in cases where a significant safety concern is attributable to a present mental illness, and involuntary hospitalization is deemed necessary to treat the person’s illness and mitigate the corresponding risk. In that specific context, in order to meet the jurisdictional standard for commitment, psychiatrists may be asked to render a categorical opinion about whether an “imminent threat” is present or absent, along with the other criteria such as a qualifying mental illness. These binary distinctions are made routinely, despite clinicians’ awareness of their blunt fit to the complex phenomenology and uncertainty of individual cases in the real world.

On the question of breaching patient confidentialy to petition for an ERPO, ambiguous cases are no argument for an ambiguous standard but rather for deference to experts in applying the existing standard. Federal guidance on implementing the HIPAA Privacy Rule provides just that, noting that the Office of Civil Rights “will not second guess a health professional’s good faith belief that a patient poses a serious and imminent threat and that the situation requires the disclosure of patient information to prevent or lessen the threat.”10 Many cases are clear-cut, of course, and it is the fallacy of the continuum to suggest that the existence of dusk means there is no real difference between day and night. In any event, the HIPAA Privacy Rule has become a fact of life in health care practice. There is no reason to think that clinicians cannot reconcile ERPO-related disclosures with HIPAA in their own professional way, as they already do routinely in other contexts that may call for a balancing of patient safety and privacy concerns.

Logistical barriers to having clinicians petition for ERPOs must be addressed, though, if ERPOs are to be widely adopted as a useful intervention in clinical settings. It would be important to educate clinicians about ERPOs. Clinicians must be made aware that ERPOs exist, know when it is clinically and legally appropriate to initiate an ERPO, and understand the processes involved. In psychiatry, a thorough legal and practical orientation to ERPOs could occur during residency training when risk assessment is taught.

Presenting in person to file and testify in court is not feasible for most clinicians. Allowing written or tele-testimony to substitute for in-person testimony is one option. During the COVID-19 pandemic social-distancing restrictions, some courts began hearing testimony for ERPO petitions via video conferencing. This option should be codified in ERPO statutes to accommodate clinician petitioners. The concept of an “ERPO navigator” to coordinate the petition process, manage the paperwork, and testify in court could also create efficiencies that would make it more feasible for clinicians to use this legal tool, and it is one supported by a sample of Maryland physicians at one hospital.11

In conclusion, ERPOs are an important policy for preventing gun violence in the United States. If clinicians were statutorily authorized to use this legal tool and if they did so with discretion and sensitivity in the context of their therapeutic role, many lives currently being lost to gun violence and suicide could be spared. In some cases, the need for hospitalization could also be reduced or eliminated. Introducing ERPOs as a routine practice option for clinicians could nevertheless create some disruption in the normal process of care and relationships with patients. Will it be worthwhile? In order to fulfil the promise of ERPOs, state statutes will need to make special accommodations for clinicians, given their unique role and responsibility as confidential healers at the intersection with public safety. Finally, as researchers in the prevention of gun violence, we need to conduct more robust evaluations of the effectiveness and fairness of ERPOs—in particular, by comparing the experience of states with and without clinician petitioners and thus bringing solid evidence to a debate that currently relies mostly on expert opinion.

Declaration of interest: The authors report no conflicts of interest. The authors alone are responsible for the content and writing of the article.

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