Your Patient Requests You to Complete a Form to Obtain a Firearm: Risk Management Considerations
By Kristen M. Lambert, Esq., MSW, LICSW, FASHRM
Vice President, Psychiatric and Professional Liability Risk Management Group

Your patient who you have been treating for bipolar disorder for 5 years comes for his regularly scheduled monthly appointment and has a form he wants you to complete so that he can purchase a gun. The form asks you to attest that the patient is fit to be able to obtain the gun. Your patient has had periods of time where he has discontinued medications, has been previously hospitalized, but has been stable for approximately six months. However, you feel uneasy about completing the form. Can you refuse to complete the form for the patient?

This is not an uncommon issue that may occur. The psychiatrist may be involved because: 1) The patient is looking to purchase a new firearm and the state requires a form to be completed by a provider or 2) The patient has been previously hospitalized and is looking to have their weapons access reinstated. There may be a variety of reasons why a patient is seeking firearms access: the patient may be an avid hunter, is looking to have his weapon for that purpose or the patient is looking for protection within his home, among others. Many issues may come up including the patient’s present state and whether the psychiatrist can predict future behavior/actions by a patient. If the psychiatrist declines to complete the form, this could also potentially impact the doctor/patient relationship and may be troublesome to the patient. This certainly can be a difficult and daunting issue.

Firearms and Persons with Mental Illness

At some point in a psychiatrist’s career, he will treat patients who are suicidal, homicidal, or violent. Eight-five percent of suicide attempts result in death, 50% of completed suicides involve guns, and guns are used more than all other intentional means combined. 1,2 

States have varying rules on firearm access and ownership. This is certainly an area of the law that changes frequently. Therefore, it is important to not only be aware of the federal law on firearm access but also the law in your state, particularly if the laws are more restrictive than the federal law. If you have questions, consult your risk management professional or attorney.

Possession of a firearm by persons with mental illness is regulated by both state and federal laws. Under federal law, “…it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person “has been adjudicated as a mental defective or has been committed to any mental institution.”3 Potential purchasers are screened through National Instant Criminal Background Check System (NICS). The Obama administration implemented legislation where more mental health records would be added to NICS and was aimed to keep those with mental illness who obtain social security disability payments from obtaining weapons. 4 This was repealed via Executive Order under the Trump administration in February 2017. 

Patient Requests

If a patient requests that you complete a form or provide a letter of support to obtain a firearm or have their firearm access reinstated, it is always best to obtain advice before completing. A patient may be stable at the present time, but not necessarily next month or next year. Should you consider completing a form, it would be important to note your current impressions, and refrain from attempting to predict the patient’s future potential behavior.

Several years ago, the New England Journal of Medicine published an article: “Assessing Competency for Concealed-Weapons Permits- The Physician’s Role.” This article included some important points to consider:

1) Assessment of competency requires training; however there are no physician training programs or standards;

2) There may be variations in how one professional versus another may view competence to carry a weapon;

3) Requests to sign-off on a permit may raise ethical issues for physicians;

4) Legal issues for consideration:

  • Potential for HIPAA violation when private health information is relayed to the state;
  • Potential liability should the physician make a determination and the patient uses the gun to harm himself or others;
  • Issues if a patient obtains a weapon and later his illness may preclude him from having access but the physician does not notify law enforcement.5

Other Considerations

If you “sign off” for weapons access, it is also important to consider who else is in the home may have access to the gun/weapon. For example, if there are children or others within the home that may have mental illness or substance use issues and you have concerns that there could be potential for harm.

Can You Ask About Weapons Ownership?

There has been much discussion about what providers can/cannot discuss with patients regarding firearm access/ownership. This can be a complex issue. Consider if you have a patient for whom you signed off on firearm access and later that patient becomes highly unstable, non-compliant with treatment, and you become concerned that he may have access to weapons within the home. Studies show that individuals who receive physician counseling are more likely to adopt one or more safe gun storage options.6 Further, the American Medical Association encourages physicians to routinely ask patients about gun ownership and to educate on the dangers posed to children by guns that are not safely secured.7

In 2013, President Obama signed Executive Order Number 16, which clarified that the ACA (or any federal law) does not prohibit physicians from inquiring about weapons ownership/possession. There may be state specific regulations on this issue, as well. As such, it is important to be aware of your state’s regulations or any changes to the federal law on this issue. A few notable state regulations include:

  • Florida. Florida was the first state to attempt to prevent physicians from asking about weapons access. This has been an issue involved in the court system for several years and is referred to as the Docs v. Glocks case. This was declared unconstitutional in February 2017 by the 11th Circuit.8
  • Other states. Montana, Missouri and Minnesota have regulations addressing firearm information from patients by healthcare professionals or agencies.9

Risk Management Considerations

  • Determine your office policy and procedure.
    • If in a state where sign off is needed by a physician, determine if you feel comfortable/confident in completing paperwork for patients.
    • Consider implementing a policy where you do not sign off for any patient.
    • Do you determine on a case-by-case basis?
    • Do you decline to sign off but recommend that the patient consult a forensic psychiatrist?
    • Keep in mind, you do not have to complete the form or provide written support for the patient to access a firearm. It is important, however, to determine what your practice policy is before confronted with the issue.
  • Consider whether you have sufficient education, training and experience to sign off.
    • If not, consider referring the patient elsewhere; or
    • Determine what relevant coursework or training you may need.
  • Consider if you sign off and then law enforcement contacts you to discuss care and treatment.
    • It is important to be aware of your obligations under HIPAA and state privacy rules before releasing any patient information.
    • Know whether you would need a specific patient authorization to discuss the patient’s care.
  • Be aware of the potential for liability if you sign off and the patient later commits an illegal act with the firearm. It is important to know whether or not you may be immune from civil liability within your state.
  • Know what the laws are on gun ownership/access within your state and federally.
  • Consider who else is in the patient’s home and may have access to the weapon. This includes children, other persons with mental illness or substance use disorders, those with diminished capacity, or those at high risk for suicide and violence.
  • Keep in mind that safety always comes first. If you have questions, consult a risk management professional or an attorney.

Conclusion

Determining whether you should complete a form or assist a patient in obtaining a firearm may be a difficult issue to resolve. It may be a clinical decision based on the issues presented and is patient specific. It is important, however, to determine what your office policy will be on whether you will assist all, some or no patients with their requests. When faced with this issue, it is prudent to consult with a risk management professional or attorney.

 

Kristen_Author

About the Author

Kristen M. Lambert  serves as the lead for risk management for professional liability policyholders and specialty programs. She specializes in risk management services for psychiatric providers and the behavioral health areas. Prior to joining Allied World, Kristen practiced as an attorney focusing on health law matters including medical malpractice defense. Kristen is admitted to the bars in Massachusetts and Connecticut and the U.S. District Court in Massachusetts. Kristen also has worked as a clinical social worker in community and tertiary hospitals as well as community mental health settings.

Harvard School of Public Health Special Report, “Guns and Suicide: The Hidden Toll,” Spring 2013.

2 Review the APA position statement: Position Statement on Assessing the Risk of Violence. www.psychiatry.org/…/Position%20Statements/ps2012_ViolenceRisk.pdf.

3 18 U.S.C. § 922(d).

4 20 CFR 421. https://www.federalregister.gov/documents/2016/12/19/2016-30407/implementation-of-the-nics-improvement-amendments-act-of-2007 [last accessed 5/26/17].

5 Goldstein, Adam, M.D., M.P.H., et al, Assessing Competency for Concealed-Weapons Permits- The Physician’s Role. N Engl J Med. 2013 June; 368: 2251.

6 American Medical Association. Advocacy Update. Issue Spotlight. https://assets.ama-assn.org/sub/advocacy-update/2017-02-23.html [last accessed 5/26/17].

7 Id.

8 Wollschlaeger v. Governor of Florida, 848 F3d 1293 (2017).

9Wintemute, G., MD, MPH, et al. Yes, You Can: Physicians, Patients and Firearms. Ann Int Med. 2016; 165(3): 205. http://annals.org/aim/article/2522436/yes-you-can-physicians-patients-firearms; Mont. Code Ann. §50-16-108 Mont. Code Ann. §50-16-108 (2014); Mo. Rev. Stat. §571.012 (2015); Minn. Stat. §144.05; Minn. Stat. §62.V.06 (2015).

10 Chirillo v. Granicz, 199 So. 3d 246; 2016 Fla. LEXIS 1908

 

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