By Kevin Rector, The Baltimore Sun
8:02 PM EST, January 28, 2013
Sitting around a broad table in a nondescript office in Reisterstown last week, more than a dozen mental health advocates, medical professionals and law enforcement officials stared tensely at one another.
Nearly a month after the state-created task force issued a report outlining its findings on psychiatric patients' access to firearms, several members were questioning a key recommendation — that mental health professionals should be required to report to law enforcement all patients who threaten suicide.
"Some people say they would be reporting every single person who walked through their door," said Dan Martin, a panel member representing the Mental Health Association of Maryland.
Laura Cain, of the Maryland Disability Law Center, insisted that reporting of suicidal threats hadn't been fully considered, "because we would have objected to that."
The meeting was in many ways a microcosm of the national debate in the wake of the massacre of 20 children and six adults at Sandy Hook Elementary School in Connecticut. That debate hinges on the responsibility of doctors, addiction counselors and other mental health professionals to maintain patient confidentiality — and to protect public safety, to the extent that they can.
As law enforcement officials and politicians push new gun control measures, mental health providers say they feel caught in the middle and warn that some proposals would endanger their relationships with patients.
The Maryland General Assembly is considering legislation, based on the task force's work, to require mental health professionals to report patients who make verbal or physical threats of suicide or serious violence. Law enforcement would use the information to investigate and potentially seize any guns the patients own.
New York recently approved legislation implementing a similar requirement.
Dr. Paul Appelbaum, past president of the American Psychiatric Association, said such efforts strip away the discretion of psychiatrists and other mental health professionals to decide the best course of action after hearing a troubling statement from a patient.
"What's really different about this new-wave approach is that it turns a clinical issue into a legal issue, and it takes discretion out of the hands of the clinician by requiring a mandatory breach of the privacy of the medical and mental health setting," said Appelbaum, director of the division of law, ethics and psychiatry at Columbia University.
"And it does all this in a structure, in a framework, that many professionals, mental health professionals, including me, think is not likely to be effective in substantially reducing gun violence and runs a very high risk of being counterproductive," he added.
At Thursday's meeting in Reisterstown, the requirement to report all suicidal threats was similarly criticized by a handful of panel members as an overly strict standard that would unnecessarily limit clinicians' options. The recommendation that patients' threats toward others be reported to police was not questioned, as members said it is in line with existing professional standards.
Leaders of the task force, including Patrick Dooley, chief of staff for state Health Secretary Joshua Sharfstein, and Capt. Jack McCauley, commander of the Maryland State Police licensing division, acknowledged the recommendations would have to be fine-tuned.
Del. Samuel I. Rosenberg, a Baltimore Democrat who attended the meeting, said he intends to file legislation during the current General Assembly session based on the task force report.
The issue of mental health counseling and gun violence has commanded the nation's attention in recent months, following some mass shootings.
In Colorado, a university psychiatrist has been sued by the wife of a victim in the mass shooting at a movie theater in a Denver suburb. The wife contends the alleged gunman told the psychiatrist about his violent inclinations and that the doctor didn't do enough to work with police to stop him.
Unveiling his gun control proposals, President Barack Obama clarified that there is no federal law preventing psychiatrists from reporting threats. And New York Gov. Andrew Cuomo garnered widespread media attention when his state recently managed to pass legislation requiring such reporting. U.S. Sen. Barbara A. Mikulski of Maryland said at a recent Senate hearing on the mental health care system that a new balance must be reached between protecting patients' privacy and ensuring that they receive proper treatment before they turn to violence.
Gov. Martin O'Malley has proposed a broad gun control and mental health package that would require judges who find a patient to be dangerous at an involuntary commitment review hearing to report that finding to police, so they could review the patient's gun ownership and perhaps seize weapons.
Convened last year, Maryland's task force issued its recommendations just weeks after the Sandy Hook killings. According to The New York Times, the timing of the task force's report made it a resource for Cuomo as he cobbled together that state's legislation.
But here in Maryland, the panel's recommendations don't have the full backing of its own members and don't appear to feature prominently in O'Malley's proposed legislation. Sharfstein, a key adviser to O'Malley in drafting that package, doesn't agree with the task force's reporting requirements.
"Part of the balance here is that the more requirements you put [in place], where you're required to have the police involved, the more intrusion there is in the relationship between the patient and the caregiver, and there is a lot of concern in the mental health community, if every situation has to be reported, that patients won't seek help," Sharfstein said in a recent interview.
Reporting standards that mental health professionals already follow — and which largely stem from a California Supreme Court ruling in the 1970s case Tarasoff v. Regents of the University Of California — call for them to report threats of violence that are directed toward reasonably identifiable victims, Sharfstein said. In other cases, such as with suicide threats, other methods of treatment and intervention may be preferable to reporting to police, he said.
With those standards already in place, Sharfstein said, Maryland can take the more narrow approach of relying on judges to note violent tendencies at commitment reviews, and avoid overreaching.
"For me, one of the key points is that there are certain clinical situations with mental illness where there is an elevated risk of violence. At the same time, the vast majority of people at risk for mental illness do not pose a risk of violence," he said. "The question is, how do you respond to the challenge of protecting the public without overreacting and damaging care, increasing mental illness and ending up worse off?"
Other mental health professionals in the state, and all across the country, are asking the same questions, according to Appelbaum.
"Currently, a clinician has the discretion to take whatever steps are likely to be effective in preventing the harm from occurring," he said, noting that these can range from moving to hospitalize the person either voluntarily or involuntarily, to starting or changing medication, to seeing the patient more frequently for more intensive therapy, to getting the patient into substance abuse treatments or a day program. "And very few of them require a breach of the confidentiality relationship," he said.
That new regulations requiring reporting will force clinicians to frequently breach that confidentiality is a grave concern, Appelbaum said, because trust is needed to ensure patients open up.
"This is part of what mental health professionals are discussing very actively among themselves," he said. "The very real concern is that if patients know we are compelled to violate their privacy by revealing what they tell us about their impulses to hurt themselves or other people, they are likely to stay away from therapy altogether."
Dr. Patrick Triplett, clinical director of Johns Hopkins Hospital's psychiatry and behavioral sciences department, said he shares those concerns.
"You get into these situations where you're making a clinical judgment, and there are times when that confidentiality can't be absolute, and I think most people understand that," he said. "But there are legitimate concerns. There are things that patients tell us that do need to be kept confidential."
Many clinicians are watching to see whether New York will pass follow-up legislation to resolve some of the concerns raised with the package it already passed, Appelbaum said. They are also watching Maryland, to see whether the task force recommendations end up in legislation.
Across the board, they are uncomfortable with the link between gun violence and mentally ill patients — studies do not show a causal relationship — and are hoping their discretion to treat patients based on their own expertise is not trampled for political expediency, Appelbaum said.
"Lots of people come into a therapist's office and talk about their angry impulses toward other people, or thoughts of hurting themselves," he said. "Very few — very, very few — go on to commit those acts."
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