With the increase in gun violence and mass shootings in recent years, there has been a heightened focus on prevention. Risk-based firearm removal laws, may also be known as red flag laws, gun violence restraining orders (GVROs), risk-based gun removal, dangerous persons firearm seizure, extreme risk protection orders (ERPOs), and other names.1 Red flag laws permit family members, law enforcement officers, and other individuals to petition a judge to issue an order temporarily prohibiting a person from possessing or purchasing a firearm if they may pose a threat of harm to themselves or others. Psychiatrists may play a pivotal role in this process and face their own professional challenges along the way.
Who is at Risk?
According to the U.S. Centers for Disease Control and Prevention, there were more than 48,000 firearm-related deaths in the U.S. in 2022, which equates to approximately 132 people each day.2 More than half of those deaths were suicides, and more than four out of every 10 were firearm homicides.3 Self-inflicted firearm-related injuries are not frequently seen in hospital emergency departments, as most people who use a firearm in a suicide attempt die from their injuries.4 In 2022, firearm injuries were among the five leading causes of death for people ages 1-44 in the U.S. and the leading cause of death among children and teens ages 1-19.5 Men account for 86% of all victims of firearm deaths and 87% of firearm injuries.6 Firearm homicide rates are highest among teens and young adults ages 15-34, Black or African American persons, American Indian or Alaska Native persons, and Hispanic or Latino persons.7 Firearm suicide rates are highest among adults aged 75 and older, American Indian or Alaska Native persons, and Non-Hispanic White persons.8
Mental disorders are much more closely linked to suicide than homicide.9 Violent behavior attributable to mental disorders accounts for only 3% to 5% of the violence in the U.S., and only 2% to 3% of those violent acts involve guns.10 In fact, people with mental disorders are far more likely to be the victims rather than the perpetrators of acts of violence.11 The risk of violence by anyone significantly increases when active substance use is involved, particularly by persons with mental disorders.12
In 2019, the American Psychiatric Association (APA) adopted its Position Statement on Firearm Access, Acts of Violence and the Relationship to Mental Illness and Mental Health Services.13 The position statement indicates that reasonable restrictions on gun access should not be based solely on a diagnosis of mental disorder, noting that "[o]nly a small proportion of individuals with a mental disorder pose a risk of harm to themselves or others" and that doing so "could dissuade persons from seeking care and further stigmatize persons with mental health disorders."14 Instead, the APA supports "banning access to guns for persons whose conduct indicates that they present a heightened risk of violence to themselves or others, whether or not they have been diagnosed with a mental disorder."15
How Do Red Flag Laws Work?
Twenty-one states and the District of Columbia currently have red flag laws, which are modeled after domestic violence protection orders.16 These laws also vary from state to state as to who can file the petition and the type and length of the firearm removal period. For example, Florida only permits law enforcement to petition for a Risk Protection Order.17 In California, law enforcement, family or other household members, employers or co-workers, and/or employees and teachers at a secondary and post-secondary school that the subject has attended in the last 6 months, can petition for a Gun Violence Restraining Order.18 Michigan, on the other hand, allows law enforcement, family or household members, healthcare professionals, and mental health professionals to petition for an Extreme Risk Protection Order.19 The criteria for implementation of these orders against an individual often involves mental health concerns, threats of violence, and/or substance abuse issues.
Connecticut implemented its risk-based gun removal law in 1999. The Connecticut law is focused on dangerousness per se, rather than focusing primarily on mental illness. Between 1999 and 2013, Connecticut issued 762 "risk warrants," averaging 51 per year, which affected 0.02% of the approximately 227,000 gun-owning households in the state.20 About half of the reports in Connecticut were made by an acquaintance of the person of concern, with 41% coming from family members and 8% coming from employers or clinicians.21 The typical subject of gun removal was a middle-aged or older married man (average age of 47) and 5% of the male subjects were military veterans.22 88% of the subjects were not known to Connecticut's public behavioral health system at the time the risk warrants were served, indicating that they had not received treatment for a serious mental illness in the prior year, and the majority were not involved with the criminal justice system.23 Concern for self-harm was present in 61% of Connecticut cases.24 In the year following the passing of the gun removal law, 29% of subjects in Connecticut received services through the public mental health system.25
Red flag laws differ from an involuntary inpatient mental health admission. An involuntary admission involves a patient that needs inpatient care because they present a danger to themselves or others due to mental health and/or substance abuse, no less restrictive measure is available, and the individual refuses to be admitted voluntarily after an emergency evaluation. Any person may apply for an involuntary inpatient admission.
With red flag laws, the concerned law enforcement officer, family member, or other qualified individual files a petition with the court. The petition must be supported with evidence demonstrating that the subject individual poses a risk of significant danger to themselves or others. The evidence presented to support a petition often includes a psychiatric evaluation or expert testimony. The court then reviews the evidence to determine if a temporary order is warranted. If so, the court will grant the petition and law enforcement will be utilized to serve the order on the individual and temporarily seize any firearms from them. In some states, the order can also temporarily prevent the subject from purchasing a firearm. The total authorized period of removal ranges depending on the state and, once the restriction period has passed, the individual can petition the court to have their firearms returned.
How Do Red Flag Laws Impact the Practice of Psychiatry?
Psychiatrists play a significant role in the process. Psychiatrists as well as other mental health professionals are typically consulted during the petition phase to provide their expert opinion on the individual's mental health, as well as the risks they may pose. Psychiatrists should inquire about firearms during their initial evaluation and during suicide risk assessments and be prepared to address ways to reduce access to guns.
However, psychiatrists are also faced with unique challenges and ethical dilemmas in these cases. The practice of psychiatry is complicated and red flag laws add an additional layer of complexity as psychiatrists are faced with critical decisions regarding individuals under intense legal scrutiny. The assessment of an individual for a potential gun-removal order involves diagnostic accuracy and risk assessment and must be thoroughly documented. Psychiatrists must also be mindful of balancing patient confidentiality with the larger public safety issues.
Confidentiality versus Duty to Warn
Gun removal laws were primarily designed to provide an avenue for citizens to raise concerns related to firearm danger.26 These laws generally do not contemplate circumstances in which it is permissible for a provider to breach patient confidentiality, nor do they provide any immunity from civil liability related to such breaches.27
In light of this, it is essential that providers ensure that their documentation is clear and thorough and that their assessment is accurate. Clinicians should identify all concerning factors related to a patient's gun possession, and that may warrant disclosure to law enforcement, as well as their reasoning and consideration of other less-restrictive measures. If, after careful consideration of the risks of disclosure versus the risks of non-disclosure, a clinician decides that disclosure is appropriate, they should disclose as little confidential information as possible to accomplish the objective.28 If a patient's firearms are removed, the clinician may be asked to testify in a subsequent hearing about the circumstances leading to the gun removal, whether the risk is ongoing, and/or whether the patient's guns should be returned. Communication plays a crucial role in ensuring that those involved in the proceeding, whether clinicians, legal professionals, law enforcement, patients, or their families, effectively interact with one another to promote a smooth process and mitigate any potential disagreements.
Red flag laws also pose liability risks for psychiatrists. Allegations of medical malpractice may arise if there are inadequate assessments or errors in diagnoses. In addition, medical misjudgment or inaccurate diagnostics may lead to the wrongful restriction of an individual's purchase or possession of a firearm. Accurate assessments and diagnostics, thorough documentation, and effective communication are some of the best practices for psychiatrists to minimize liability risks and comply with legal requirements. Continuing education is also essential to stay on top of evolving red flag laws in one's practicing state. Psychiatrists should also consider developing risk management procedures to mitigate potential liability from gun removal evaluations.
Furthermore, gun removal laws generally do not preclude contact between the individual making a report and the individual whose guns are removed.29 The clinician must determine whether to continue the treatment relationship based upon clinical factors and in light of their obligation not to abandon the patient. If the treatment relationship is irreparable, it may be appropriate to transfer the patient to the care of another clinician with an appropriate handoff.30
Resources for Mental Health Providers
It is imperative clinicians know what laws apply where they practice. The National ERPO Resource Center streamlines this process and enables users to quickly determine whether their state has a red flag law and, if so, what types of orders are available, the burden of proof, the maximum duration, factors to consider, and who can file the petition. Additional state-specific resources may also be available through the National ERPO Resource Center's website (www.erpo.org).
States Without Red Flag Laws
Even clinicians practicing in states without red flag laws may still have options to manage dangerous situations involving patients and firearms and may be subject to mandatory state reporting laws. For example, if a patient threatens to shoot a co-worker, the clinician may have a duty to protect the intended victim by issuing a warning to them, notifying law enforcement, and/or hospitalizing the patient.
Conclusion
The intersection of mental health and firearms ownership created unique challenges for psychiatrists and other mental health professionals. Red flag laws represent a proactive approach undertaken by numerous states to address the significant public health problem posed by firearms in the hands of dangerous individuals. Clinicians need to know the laws applicable to locations where they practice and should be prepared to be a part of the firearm removal process. Some of the best practices for psychiatrists to employ to minimize liability risks and comply with legal requirements include accurate assessments and diagnostics, thorough documentation, and effective communication.
Footnotes
1. Kapoor R, Benededk E, Bonnie R, Gandhi T, Gold L, Judd S, Pinals D: Resource Document on Risk-Based Gun Removal Laws. Washington, D.C.: American Psychiatric Association, 2018. Available from: https://www.psychiatry.org/File%20Library/Psychiatrists/Directories/Library-and-Archive/resource_documents/2018-Resource-Document-on-Risk-Based-Gun-Removal-Laws.pdf
2. Fast Facts: Firearm Injury and Death. U.S. Centers for Disease Control and Prevention. Available from: https://www.cdc.gov/firearm-violence/data-research/facts-stats/index.html
3. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Pinals DA, Appelbaum PS, Bonnie R, Fisher C, Gold L, Lee LW: Resource Document on Access to Firearms by People with Mental Disorders. Washington, DC.: American Psychiatric Association, 2014. Available from: https://www.psychiatry.org/getattachment/ba2fe8e8-5b3f-4a77-9c60-c3a242ba67b2/Resource-2014-Firearms-Mental-Illness.pdf
10. Id.
11. Id.
12. Id.
13. Position Statement on Firearm Access, Acts of Violence and the Relationship to Mental Illness and Mental Health Services. Washington, D.C.: American Psychiatric Association, 2018. Available from: https://psychiatry.org/getattachment/8b32e119-1995-4ac6-bc66-5c3972cb221f/Position-Firearm-Access-Acts-of-Violence-and-the-Relationship-to-Mental-Health.pdf
14. Id.
15. Id.
16. National Extreme Risk Protection Order (ERPO) Resource Center. Available from: https://erpo.org/
17. National Extreme Risk Protection Order (ERPO) Resource Center. Florida Risk Protection Order. Available from: https://erpo.org/state/florida/
18. National Extreme Risk Protection Order (ERPO) Resource Center. California Gun Violence Restraining Order. Available from: https://erpo.org/state/california/
19. National Extreme Risk Protection Order (ERPO) Resource Center. Michigan Extreme Risk Protection Order. Available from: https://erpo.org/state/michigan/
20. Swanson JW, et al: Implementation and Effectiveness of Connecticut's Risk-Based Gun Removal Law: Does it Prevent Suicides?Law & Contemporary Problems 80:179-208, 2017. Available from: https://lcp.law.duke.edu/article/implementation-and-effectiveness-of-connecticuts-risk-based-gun-removal-law-swanson-vol80-iss2/
21. Id.
22. Id.
23. Id.
24. Id.
25. Id.
26. Kapoor R, Benededk E, Bonnie R, Gandhi T, Gold L, Judd S, Pinals D: Resource Document on Risk-Based Gun Removal Laws. Washington, D.C.: American Psychiatric Association, 2018. Available from: https://www.psychiatry.org/File%20Library/Psychiatrists/Directories/Library-and-Archive/resource_documents/2018-Resource-Document-on-Risk-Based-Gun-Removal-Laws.pdf
27. Id.
28. Id.
29. Id.
30. Id.
Originally published by In Session with Allied World for APA.
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