New York State Laws are designed to remove firearms from those who seek to do harm to themselves or others. This means keeping the minority of individuals with serious mental illness who may be dangerous away from access to firearms. These laws should not dissuade any individual from seeking mental health services they need.
Section 9.46 of the Mental Hygiene Law (MHL) requires that mental health professionals who are currently providing treatment services to an individual make a report, if they conclude, using reasonable professional judgment, that the individual is likely to engage in conduct that would result in serious harm to self or others.
The “Red Flag” Law, also known as the extreme risk protection order (ERPO) law, prevents individuals who show signs of being a threat to themselves or others from purchasing or possessing any kind of gun. It also requires such individuals to surrender any guns they own or possess.
An ERPO can be sought by multiple people in a person’s life including:
If you are a mental health professional seeking more detailed instructions on how to file an ERPO, please visit the Office of Court Administration webpage. You can also visit the New York State Red Flag Law webpage for more information.
The reporting requirement became effective on March 16, 2013, and additional mental health professionals were included as reporters on July 6, 2022.
MHL 9.46 requires mental health professionals to report to their local director of community services (“DCS”) or his/her designees when, in their reasonable professional judgment, one of their patients is “likely to engage in conduct that would result in serious harm to self or others.”
The reporting requirement extends to “mental health professionals,” defined in the law as the following professions – physicians, psychiatrists, psychologists, registered nurses, licensed clinical social workers, licensed master social worker, licensed mental health counselor, clinical nurse specialist, certified nurse practitioner, licensed clinical marriage and family therapist, or a licensed professional nurse.
All persons receiving mental health treatment services from any of the types of mental health professionals identified in the law, regardless of the setting in which they work, may be subjects of 9.46 reports.
Yes, the requirement to report is not dependent upon the location of the treating professional or the patient.
Yes. A report is not required when, in the mental health professional’s reasonable professional judgment, a report would endanger him or her or would increase the danger to the potential victim or victims.
Reports under MHL 9.46 are made using a clinician’s reasonable professional judgment. Different clinicians treating the same individual may not agree, which should not prevent any one, or all, of them from making a report.
Mental health professionals should convey information necessary to allow the DCS to review the matter and determine if a report to the NYS Division of Criminal Justice Services (DCJS) is required (e.g., what clinical evidence, history, and risk factors have caused the mental health professional to conclude that the patient is likely to engage in conduct that would result in serious harm to self or others).
Under HIPAA, because these informational disclosures are required by law, they can be made without the patient’s consent. HIPAA permits disclosures of protected health information without the authorization or consent of the individual to the extent that such disclosure is required by law and the disclosure complies with the requirements of that law.
The mental health professional should make a report as soon as possible.
A local DCS may only disclose a patient’s name and other non-clinical identifying information (e.g., date of birth, race, sex, SSN, address) to DCJS, and that information can be used by DJCS to determine if the patient has a firearms license.
If the patient has a firearms license, State Police will report that information to the local firearms licensing official, who must either suspend or revoke the license. The information may also be used in connection with a determination of firearms license eligibility should the subject of the report apply for a firearms license in the subsequent five years.
DCJS must destroy information received five years after receipt.
The standard “likelihood to result in serious harm” means threats of, or attempts at, suicide/serious bodily harm to self, or homicidal/violent behavior towards others. This standard justifies the need for immediate action, as a public safety measure, to prevent harm. Mental health professionals must use reasonable professional judgment when making this determination.
In general, a MHL 9.46 report would originate if the clinician determines the person is likely to engage in conduct that could seriously harm the patient and/or others (which could thus also trigger a MHL 9.46 emergency assessment). It is not, however, necessary to establish that the patient has a gun before making the report.
The law specifically provides that if a mental health professional uses “reasonable professional judgment” and “good faith” when making a determination, this decision cannot be the basis for any civil or criminal liability on the part of that professional.
*Please note: This website is informational only and does not constitute legal advice.
