Most state mandates require mental health professionals to report patients likely to harm themselves or others, while some states apply duty-to-warn laws to all physicians when patients make direct threats of violence

Q. Craig, Illinois just passed the Firearm Concealed Carry Act (PA 98-063), which requires Illinois clinicians to report those they believe pose a “clear and present danger” to themselves or others through the Illinois Firearm Owner’s Identification Mental Health Reporting System. What are your thoughts on the clear and present danger law?

— Rebecca B. Parker, MD, FACEP, executive vice president for EmCare’s North Division and attending emergency physician at Presence Covenant Medical Center in Urbana, Ill. She is a member of the ACEP Board of Directors.

A. After doing some quick research, I found that the “clear and present danger” language in Illinois appears to be somewhat unique, although “duty to report” requirements exist for physicians in other states. Most of those requirements are limited to mental health providers, but some mandates have been extended to physicians. New York and Illinois both enacted mandates last year. New York focused on mental health professionals, while Illinois extended the requirement to physicians and other providers.

According to an extensive Law Center to Prevent Gun Violence review of state mental health reporting laws (http://smartgunlaws.org/mental-health-reporting-policy-summary/): “New York adopted a law in 2013 that requires a mental health professional to report any person receiving treatment who is likely to engage in conduct that would result in serious harm to self or others; this information may be used to determine firearms eligibility and must be destroyed after five years. Illinois enacted a law in 2013 requiring reporting by any physician, clinical psychologist, qualified examiner, law enforcement official, or the primary administrator for any school who determines that a person presents a ‘clear and present danger’ to self or others, including any person determined to demonstrate threatening physical or verbal behavior.”

A duty to warn arises if the patient has communicated to the practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself.

Many states have mandatory duty-to-warn laws in cases where direct threats of violence to others or to self are expressed, and some of these apply to all physicians (including in Colorado, Georgia, Illinois, and New Jersey), according to the National Conference of State Legislatures report of state laws on duty to warn (http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx). For example, it cites New Jersey Statute 2A:62A-16, which applies to physicians and nurses as well as other mental health providers and provides immunity except when there is a duty to warn: “A duty to warn arises if the patient has communicated to the practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out the threat; or the circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself. The duty is discharged by arranging hospitalization, involuntary commitment, advising law enforcement of the identity of the intended victim, warning the victim or their parent or guardian of the patient if the threat is of self inflicted violence.” (Mississippi and South Carolina have permissive, not mandatory, duty-to-warn laws for physicians.)

The National Conference of State Legislatures also has a report on state laws related to possession of firearms by people with mental illness (http://www.ncsl.org/research/civil-and-criminal-justice/possession-of-a-firearm-by-the-mentally-ill.aspx). This information is a year old and does not include the new Illinois law. It notes that some states (including Maryland and Massachusetts) prohibit people who were hospitalized for a mental illness to own a gun unless a physician formally attests that they are not a danger. Texas prohibits concealed handgun permits for any persons who have been diagnosed by a physician with a serious mental condition (including schizophrenia and bipolar disorder) that might impair mood or judgment, with a condition that left them incompetent to handle their own affairs, or with a dependency on alcohol or drugs in the previous five years. However, this information does not indicate a requirement that physicians report patients with those conditions.

For further discussion of the controversy surrounding the issue of reporting and the ability of those treated for mental illness to carry guns, see this story from Kaiser Health News that came out after New York passed its duty-to-report law last year: http://www.kaiserhealthnews.org/stories/2013/march/21/stateline-states-mental-illness-gun-ownership.aspx.

Craig Price is senior policy director at ACEP.