Mental Illness and Firearms Background Checks-Combatting Violence Without Inhibiting Care.

Abstract

The history of American firearms legislation is one of tragedy and response. The Gun Control Act of 1968, prohibiting certain categories of individuals from possessing or purchasing firearms, was prompted by political violence. The Brady Handgun Violence Prevention Act of 1993, requiring background checks on prospective buyers via the National Instant Criminal Background Check System (NICS), memorialized an attempted presidential assassination. The NICS Improvement Amendments Act of 2007, designed to strengthen the background check system, followed the mass shooting at Virginia Tech University. The latest initiatives aimed at curbing gun violence were announced by President Barack Obama on the heels of the tragic events in Newtown, Connecticut. Among the President’s 23 executive actions was a directive to “address unnecessary legal barriers” that prevent reporting “on people prohibited from gun ownership for mental health reasons.” In response, the US Department of Health and Human Services (HHS) recently published a final regulation that amends the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to enable disclosures to the federal background check system under specified circumstances. This Viewpoint analyzes the new rule, explores the nexus between mental health records and firearms background checks, and examines implications for psychiatrists. Federal law prohibits 9 categories of persons from shipping, transporting, possessing, or receiving firearms or ammunition. One such category applies to individuals who (in now-antiquated terminology) have been either “adjudicated as a mental defective” or “committed to a mental institution.” Such adjudications and commitments involve action “by a court, board, commission, or other lawful authority.” While there is some judicial disagreement as to how much due process is required before the federal mental health prohibitor can be invoked, there is widespread consensus that “a mental health diagnosis does not, in itself,” trigger the prohibitor. Moreover, in most cases the treating psychiatrist is not the legal authority responsible for placing an individual in a prohibited class. This distinction between treatment and adjudication is a cornerstone of both the physician-patient relationship and the due process rights of mentally ill individuals. THE BACKGROUND CHECK SYSTEM The NICS was activated in 1998 to help enforce the firearms prohibitions under federal and state law by creating a mechanism to determine the eligibility of a prospective gun buyer at the point of sale. Licensed sellers are required to contact the NICS to relay identifying information about the customer. The Federal Bureau of Investigation checks the information against 3 databases to see if there is a record match and advises whether the sale may proceed. Federal agencies are required to report prohibited persons to the NICS, whereas states are incentivized via grants. The US Supreme Court has held that states may not be compelled to participate. The efficacy of the NICS is predicated on the currency and completeness of available data. In 2012,investigators examined the extent to which states had made mental health prohibiting information available to the NICS and found overall progress to be limited and uneven. Specifically, officials from half of the states studied cited privacy laws as an obstacle. The perception that HIPAA in particular created an impediment to NICS reporting formed the backdrop for the latest regulatory action.... Language: en