Legislative Push on Guns Raises Privacy Concerns

Daily News Article   —   Posted on April 24, 2007

(by Russell Berman, NYSun.com) WASHINGTON- An effort in Congress to enhance federal gun background checks is raising concerns among leaders in the mental health community, who worry that a legislative push could unfairly target the mentally ill and deter troubled people from seeking treatment.

The officials also cited concerns about protecting the confidentiality of patient records and questioned the wording of the current federal law, which they said was outdated and even pejorative. “The focus on the mentally ill is a distraction from the issues surrounding gun control,” a past president of the American Psychiatric Association, Paul Applebaum, said.

The unease within the mental health community comes as lawmakers in Washington are reacting to last week’s massacre at Virginia Tech, in which a student with a history of mental illness gunned down 32 classmates and teachers before killing himself.

A judge in 2005 ruled that Cho Seung-Hui “presents an imminent danger to himself as a result of mental illness,” a determination that should have barred him under federal law from buying the two handguns he used in the killings. Federal restrictions enacted in 1968 prohibit the purchase of guns by those who have been “adjudicated as a mental defective” or “involuntarily committed to a mental institution.”

Virginia officials have said the sale was legal under state law, but lawmakers including Senator Schumer and a New York congresswoman, Rep. Carolyn McCarthy, have suggested that the deaths were preventable, citing loopholes in the federal background-check database. The database, known as the National Instant Criminal Background Check System, relies on the submission by state and local agencies of disqualifying information, including mental health records.

Mr. Schumer and Ms. McCarthy say the system is incomplete because state and local governments do not have enough money to submit records; they are reintroducing a bill that combines an infusion of $375 million in funding to help keep the database up to date along with penalties for states that do not comply. Twenty-two states submit mental health information to the database, according to the FBI, and in an ironic twist, Virginia is the leading state in reporting “mental defective” entries.

Leading mental health professionals are watching the debate closely, wary of legislative language and political rhetoric that is overly broad or exacerbates stigmas associated with mental illness. They are quick to note that only a small percentage of violent crimes are committed by people who are mentally ill.

“I think we all share the goal of ensuring that people who are potentially dangerous don’t have guns,” the legal director for the National Alliance on Mental Illness, Ronald Honberg, said. “But if you do this the wrong way, this could end up creating a major disincentive for people who need mental health treatment to seek that treatment. We already have a big problem with that.”

Formed in 1979, the alliance represents about 200,000 Americans with mental illness and their families.

“If somebody thinks that by seeking treatment that they’re potentially going to go in an FBI database, that could really be a powerful deterrent,” Mr. Honberg said.

The alliance and leading psychiatrists also object to the use of the term “mental defective” in defining the type of person who cannot legally purchase a gun.

“I don’t know what that means as a technical term,” the president-elect of the American Psychiatric Association, Carolyn Robinowitz, said. She said the phrase might date back several decades. “It’s not a term with any diagnostic validity.”

Dr. Applebaum, now the director of the division of psychiatry, law, and ethics at Columbia University, said: “Not only is it a pejorative term, but it is an ambiguous one.”

Federal regulations define adjudication as a “mental defective” as a determination made by a “court, board, commission or other lawful authority” that a person is “a danger to himself or to others; or lacks the mental capacity to contract or manage his own affairs.” The prohibition on gun purchases also applies to those found to be insane in a criminal case, not competent to stand trial, or not guilty by reason of insanity.

Mr. Honberg contends the language is overly broad and vague, saying it does not address the possibility that a person may be successfully treated for an illness. The alliance in past years has urged adding a provision that limits the number of years a person’s mental health records could remain in the background check system.

He and other psychiatrists also expressed privacy concerns about the database and efforts to expand it. The American Civil Liberties Union, which often raises objections surrounding privacy issues, takes no position on gun control laws, a spokesman said.

Legislation aimed at barring the mentally ill from purchasing guns has drawn more criticism from health officials than the National Rifle Association, known for its steadfast opposition to laws restricting gun ownership. The group is negotiating with congressional leaders on the legislation, which is not expected to come for a vote before May. The NRA declined to comment, but a source close to the gun lobby said resistance to issues pertaining to mental health records has historically come from the medical community, not from the NRA.

Reprinted here with permission from The New York Sun. Visit the website at NYSun.com.