Case Studies

Case One:

Severe Depression — Legal Issue: Transfer of Firearm Away from At-Risk Patient

Severe depression is associated with increased suicide risk,^{Reference Brådvik16} and access to lethal means like firearms increases that risk.^{Reference Anglemyer, Horvath and Rutherford17} Screening for suicidality and access to lethal means would be appropriate for this patient. If the physician's assessment finds that the patient is at risk for suicide, possible interventions range from lethal means counseling to involuntary commitment. Physicians should also bear in mind the importance of trust in the ongoing patient relationship and the legal consequences of some clinical decisions.

If the patient discloses firearm possession, counseling may include discussing safe storage practices, such as storage of firearms in a locked location and separately storing ammunition from the firearm, or for those with severe depression a recommendation that possession of a firearm be temporarily transferred to a family member or friend. Federal law, which governs only transfers and sales from federally-licensed dealers,¹⁸ does not prohibit transfer of possession, but state UBC and licensing laws may limit patients' ability to legally, temporarily transfer possession. Twenty-two states and the District of Columbia have taken steps to close the “loophole” that allows for any private firearm transfer, with thirteen of these states and the District of Columbia requiring a background check at any point of transfer for all classes of firearms.¹⁹ Fourteen states and the District of Columbia, seven of which also have a UBC law, require a license to own or purchase a firearm. For the purposes of preventing access to firearms by prohibited persons, licensing and UBC laws may be useful, but without a workaround these well-intended laws create an unintended consequence: firearm owners in UBC and strict-licensure states who are in highrisk situations cannot easily or temporarily hand off their guns in a time of crisis.

Some states have tried to address this tension. In Maryland, although firearm transfers between parties who are not licensed dealers must be processed through a licensed dealer or law enforcement for a background check before transfer,²⁰ the state's highest court held that “temporary gratuitous exchange or loan of a regulated firearm” does not constitute an illegal transfer.²¹ In Washington state, a work group that included representation from the National Rifle Association reached unanimous agreement to amend an existing UBC law, allowing temporary transfers intended to prevent suicide.^{Reference Sung22}

An ERPO is another legal mechanism, appropriate for only the highest-risk cases, by which a a firearm can be temporarily removed from a patient. Most ERPO laws allow family members and law enforcement to petition the court for temporary restriction of a person's access to firearms. Only the District of Columbia and Maryland allow physicians and “mental health professionals” to petition, and Hawaii allows all “medical professionals” to petition for an ERPO.²³ For an ERPO to be granted, petitioners must typically show either “probable cause” or “reasonable cause” that the firearm owner poses “an imminent risk” of “significant danger” to themselves or others. Most statutes allow for orders directing the individual to surrender their firearms for a period of up to fourteen days.

In this Maryland case, if other interventions are unsuccessful and the patient is felt to be at imminent risk, the physician may petition directly for an ERPO. HIPAA permits unconsented disclosure about a patient's imminent threat to self to “a person … reasonably able to prevent or lessen the threat,”²⁴ so a physician may disclose the patient's risk to petition for the ERPO directly or disclose the risk to a family member or law enforcement officer who can then initiate an ERPO. As always, this decision requires the physician to balance potential violation of patient-provider trust with assessment of the degree of patient risk.

Case Two:

Intoxication and Threats — Legal Issue: Emergency Holds

In this case, the physician's “duty to warn” is unclear. While his threat to “the whole ER” may satisfy the particularity requirement common in “duty to warn” statutes, it is debatable whether the patient has presented a serious and imminent danger to themselves or others. In New York, the Secure Ammunition and Firearms Enforcement Act of 2013 (SAFE Act) requires “mental health professionals” (including “a physician”) to report persons “likely to engage in conduct that would result in serious harm to self or others.”²⁵ Office of Mental Health guidance indicated that “harm” means “threats of … homicidal/violent behavior towards others.”²⁶ The requirement includes a discretionary safety valve to exclude “any action which, in the exercise of reasonable professional judgment, would endanger [a] mental health professional or increase the danger to a potential victim.”²⁷

Here, the most appropriate action would be to hold the patient for observation with a sitter. Refusing to discharge an intoxicated patient is common practice and is subject to fewer formal procedures and requirements than involuntary commitment.^{Reference Kersten28} Generally, whether to hold an intoxicated patient against their will turns on a determination that the patient lacks decision-making capacity, and/or a determination that the patient poses a risk to self or others should they be released in an intoxicated state.

Once the patient is no longer intoxicated, they should be reassessed for violent intentions. If the patient continues to make threats, particularly if the patient indicated possession of a firearm, the physician should consider involving law enforcement and recommending an ERPO, voluntary admission, or an emergency hold.

If the physician identifies that the patient requires emergent psychiatric care, they may offer voluntary admission. If the patient does not agree to voluntary admission, the physician may opt to initiate an emergency hold in some states. Every state and the District of Columbia have emergency hold laws, but who can initiate an emergency hold varies, as does the duration of emergency holds, patients' rights during the hold, and whether judicial approval is required.²⁹ Twentysix states and the District of Columbia allow physicians to initiate emergency holds. Five states, including New York, allow physicians to initiate emergency holds of up to seventy-two hours, even if the danger that the individual poses is unrelated to an underlying mental illness.³⁰ Across all states, the most common maximum duration for an emergency hold is seventytwo hours, but ranges from twenty-three hours to ten days.³¹ Importantly, in some states, a history of voluntary admission to a mental hospital or involuntary commitment may prohibit the patient from legally possessing a firearm in the future.³²

Case Three:

Childhood Aggression — Legal Issues: Child Access Prevention Laws

Studies suggest that a pattern of childhood aggression places the child at serious risk of future harm to others.^{Reference Ou and Reynolds33} In addition, firearms in the home are an independent risk factor for future violent offenses and violent victimization,^{Reference Ruback, Shaffer and Clark34} particularly with respect to adolescent suicide.^{Reference Grossman and Johnson35} For this at-risk patient, a conversation about firearms in the home should include counseling regarding these risks and strategies for mitigating them, including safe storage.

Both the National Rifle Association and the American Academy of Pediatrics recommend that firearms be stored in ways that are inaccessible to unauthorized users; evidence-based recommendations indicate the safest form of firearm storage in a locked safe, unloaded, and separate from ammunition.^{Reference Horman36} If followed diligently by even half of households with children, this storage practice could prevent up to one third of youth suicides.^{Reference Monuteaux, Azrael and Miller37} As the majority of school shootings involve weapons obtained from the home, safe storage plays a significant role in preventing homicide. In some states, counseling on safe storage can be bolstered by reference to safe storage and child access prevention (CAP) laws.

There are no federal CAP laws or standards for locking devices used to store firearms. However, federal law prohibits licensed dealers from selling or transferring any handgun without a secure storage or safety device.³⁸ The prohibition does not apply to private sales, and there is no requirement that the buyer use the device. Twenty-nine states and the District of Columbia have CAP laws. Missouri's CAP law prohibits a person from knowingly or recklessly selling, leasing, loaning, giving away, or delivering a firearm to a minor without the consent of the child's custodial parent or guardian.³⁹ In comparison, states with stronger CAP laws such as California impose criminal liability when a minor is likely to gain access to a negligently stored firearm, regardless of whether they do.⁴⁰ In California, physicians could reference these strong CAP laws as a way to encourage compliance with safe storage counseling, similar to counseling regarding mandatory car seat use. Regardless, physicians must keep patient trust at the forefront of such discussions, and avoid creating any perception of threatening patients regarding their compliance with state laws.

States may also regulate methods of firearm storage. Eleven states require safety locks for firearms in the home, although Massachusetts is the only state that requires all firearms to be stored with a lock.⁴¹ Some municipalities have local laws regulating firearm storage. For example, New York City requires all weapons not in the owner's possession or control to be stored with a safety lock in place.⁴²

Despite the variety of laws related to safe storage — or perhaps because of their patchwork and state variation — more than half of owners store at least one firearm in a less safe manner,^{Reference Crifasi43} and over 4.6 million minors live in homes with loaded, unlocked firearms.^{Reference Azrael44} Physicians can play a role in reducing children's access to firearms, particularly for patients with significant risk factors such as the child in this case. Physicians responsible for the care of children should be aware of applicable CAP laws, risk factors for firearm-related injury, and evidence-based strategies for mitigating these risks.

Here, a physician could recommend that firearms be temporarily removed from the home in the case of acute child aggression or, at the least, that the firearms be stored in a locked safe, unloaded, and separate from ammunition.

Case Four:

Intimate Partner Violence — Legal Issues: Mandatory Reporting

Intimate partner violence (IPV) is prevalent — 36.4% of women are raped, stalked, or assaulted by a partner at some point in their lives.⁴⁵ Many instances of intimate partner violence involve a firearm; nearly one million women report being shot or shot at by an intimate partner, and about 4.5 million report that an intimate partner threatened them with a firearm.^{Reference Sorenson and Schut47} Physicians have a significant role to play in both identifying and preventing firearm-related IPV.⁴⁸ Prior to engaging in conversations about risk of future harm, safety planning, and legal resources and options, physicians should take care to notify the patient if they are mandated reporters for any category of information.

Most states have a mandatory reporting law for physicians related to IPV.⁴⁹ Many states require reporting wounds from firearms, certain burns, and knives or sharp and pointed instruments.⁵⁰ Some states, including Oklahoma, require reporting wounds involving a criminal act, including IPV.⁵¹ Physician compliance with mandatory IPV reporting laws is variable and controversial,^{Reference Sachs52} and some studies suggest that mandatory reporting laws may decrease patient disclosure of IPV.

In this case, after informing the patient about the possibility of mandatory reporting, the physician can counsel the patient about her risk factors for harm. For example, her partner's access to a firearm places her at a five times higher likelihood of IPV death.^{Reference Campbell53} Alcohol and controlled substance use are independently significant predictors of future violence, placing this patient at high risk of harm given her partner's frequent drinking.^{Reference Wintemute54} Particular care must be taken to build trust in the physician-patient relationship prior to counseling, and the patient's safety must be carefully balanced with her own goals.

Patients may seek legal protections such as a temporary restraining order, or a related IPV order, but these are complicated legal processes subject to a number of loopholes. There is a substantial risk of homicide when patients report IPV to law enforcement and when patients seek restraining orders.^{Reference Vittes and Sorenson55} Therefore, physicians are well-advised to rely on trained experts in IPV advocacy, particularly when designing exit plans or intervention strategies, and refer patients to programs such as the National Domestic Violence Hotline rather than give their own advice regarding legal courses of action. Additionally, although some states have firearm relinquishment statutes covering cases of IPV, physicians have no ability to activate them beyond mandated reporting to law enforcement. The victim of IPV may not remove the firearm from the perpetrator's possession as this could constitute theft.

In this case, the role of law enforcement may be limited even if they are notified via reporting. Oklahoma's IPV-related firearm relinquishment laws allow seizure of the firearm only if the law enforcement officer has probable cause to believe that the firearm was used “to commit an act of domestic abuse.”⁵⁶ Therefore, physician responsibilities in cases of suspected IPV involving firearms are generally limited to screening, identification, mandatory reporting, counseling regarding risk factors, safety planning where appropriate, and engaging expert advocates when desired by the patient.

Each of these case studies illustrates important aspects of the physician-patient relationship. Most saliently, a number of laws discussed above require or permit a physician to intervene without or against a patient's permission. In such a scenario, special care must be taken to preserve trust in the patient-physician relationship by pursuing other interventions first, by seeking assent where consent is not possible, and by ensuring that patients are informed about the goals and evidence in support of a particular intervention. Each of these scenarios highlight the complexity of managing the risks to the individual and the community.