Steve Byrne, Alfred University
Melissa Fallon, SUNY Oneonta
Bob Kazin, Hamilton College
Joan McCool, Buffalo State College
Disclaimer
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“Notwithstanding any other law to the contrary, when a
mental health professional currently providing treatment
services to a person determines, in the exercise of reasonable
professional judgment, that such a person is likely to engage
in conduct that would result in serious harm to self or others,
he or she shall be required to report, as soon as practicable,
to the director of community services, or the director’s
designee, who shall report to the division of criminal justice
services whenever he or she agrees that the person is likely to
engage in such conduct. Information transmitted to the
division of criminal justice services shall be limited to names
and other non-clinical identifying information, which may
only
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be used for determining whether a license issued pursuant to
section 400.00 of the penal law should be suspended or
revoked, or for determining whether a person is ineligible for
a license issued pursuant to section 400.00 of the penal law,
or is no longer permitted under state or federal law to
possess a firearm.
Nothing in this section shall be construed to require a mental
health professional to take any action which, in the exercise
of reasonable professional judgment, would endanger such
mental health professional or increase the danger to a
potential victim or victims.
The decision of a mental health professional to disclose or
not to disclose in accordance with this section, when made
reasonably and in good faith, shall not be the basis for any
civil or criminal liability of such mental health professional.
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When a client is “likely to engage in conduct
that will cause serious harm to self or others.”
Per OMH guidance document, reporters
should make the report under the same
circumstances that would warrant an
emergency “removal” to a psychiatric hospital
Section 9.46 vs. 2PC reporting differences
◦ Dangerous behavior/threats vs. not
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Make report “as soon as practicable” to DCS
◦ Locate your DCS:
http://www.clmhd.org/contact_local_mental_hygien
e_departments/
◦ Make a report: http://nysafe.omh.ny.gov
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Clinicians can choose to not make a report is
doing so would endanger the potential
victims and/or reporter
Provides immunity from civil and criminal
liability
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Physicians (including Psychiatrists)
Psychologists
RNs
LCSWs
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Presumably:
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◦ Postdoctoral psychology fellows/unlicensed
psychologists in exempt settings
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LMHCs (and counseling trainees)
MFTs
LMSWs
Creative Arts Therapists
Psychoanalysts
Unless a mandated reporter has direct
contact with the client, he/she cannot make a
report for another clinician
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Does this preclude us from reporting clients
who willingly go to the hospital for
suicide/homicide risk?
◦ i.e., does a client’s willingness to go to the hospital
or absence of suicidal/homicidal behaviors suggest
that they are not likely to engage in conduct that
will result in serious harm to self or others?
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When a student is transported to the hospital,
do we have the responsibility to report? Or
does the hospital?
Because we send the student for evaluation,
does this mean that the results of that
evaluation should determine whether or not a
report is made?
MOU recommended
Protocols for ensuring a report has been
made
– Should be in hospital discharge paperwork
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Depending on the makeup of your staff, it is
possible that a suicidal/homicidal client may
be seen in your office and sent for evaluation
at the hospital, but not reported to DCS
Issues of clinical responsibility?
Office protocols to handle this?
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Its not clear that you have to changed your
informed consent statement but our staff
chose to change the form to include the NY
Safe Act out of discomfort regarding the
concern for the clients’ confidentiality.
Our NY SAFE act statement was approved by
SUNY Legal team and we are happy to share
it.
In January 2013, NY State passed legislation
designed to limit a suicidal or homicidal person’s
access to fire arms. This law requires mental
health providers to alert the County Director of
Community Services and the NY Department of
Criminal Justice Services (DCJS) if a person is
likely to engage in conduct that will result in
serious harm to self or others. The DCJS will then
identify if that person has a gun permit and may
remove fire arms from their possession in order
to protect the identified person or others. This
law may also prevent impacted people from
obtaining a gun permit for 5 years following a
report to the DCJS. The Otsego County Director
of Community Services is Susan Dalesandro,
LCSW, CASAC.
“Decision making with respect to a Section 9.46
report requires a clinical determination that a
person’s clinical state creates either: “(a) a
substantial risk of physical harm to the person, as
manifested by threats of or attempts at suicide or
serious bodily harm or other conduct
demonstrating that the person is dangerous to
himself or herself, or (b) a substantial risk of
physical harm to other persons as manifested by
homicidal or other violent behavior which places
others in reasonable fear of serious physical harm.”
NEW YORK SECURE AMMUNITION AND FIREARMS ENFORCEMENT ACT, NYS
Office of Mental Health Guidance Document
(http://www.omh.ny.gov/omhweb/safe_act/guidance_documents.html)
“The law specifically provides that mental
health professionals will not be subject to any
civil or criminal liability if the professional’s
decision with respect to whether or not to
report was made “reasonably and in good
faith.”
NEW YORK SECURE AMMUNITION AND FIREARMS ENFORCEMENT ACT, NYS
Office of Mental Health Guidance Document
(http://www.omh.ny.gov/omhweb/safe_act/guidance_documents.html)
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Providers need to document that they acted
“reasonably and in good faith” and to
document the basis for your clinical judgment
According to SUNY Legal, there is more legal
protection for providers who report than for
providers who do not report under the safe
act.
Documentation is required under the law but
it might be as important to document when
you don’t report someone as opposed to
when you do.
The psychologist should document this
assessment in the person's treatment record as
well as the psychologist's reasons for
concluding that the person does or does not
trigger the reporting requirement under the
SAFE Act.
INFORMATION ABOUT THE NEW YORK SAFE ACT FOR PSYCHOLOGISTS As of
February 11, 2013 Compiled by members of NYSPA's SAFE Act Task Force: Drs.
Shane Owens (Chair), Roy Aranda, Lou Jacobson, Joe Scroppo, Julie Fink-Sullivan,
June Feder (Legislative Committee Chair), Eric Neblung (NYSPA President)
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Did you (or your supervisor) report the student to the
Department of Criminal Justice in accordance with the
NYS Mental Health Law .946/ Safe Act requirements?
(if yes, note date and time of reporting)
Summary of risk factors to self or other (include
rational for decision regarding whether the student
met criteria for reporting)
With whom did you consult about this decision?
If the student went to the hospital or meets with
other mandated reporters, you should report your
decision about reporting to their other providers.
Please document with whom you communicated with
regarding the decision, if any.
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Hospitalized students we are not reporting to
the County Director of Community Services
We consult on anyone who is close or
approaches the criteria for hospitalization
This is not very definitive criteria admittedly
but if the provider is asking the question
about whether the person needs to be
hospitalized for threat to self and/or other
then we document in this type of note.
Female, 18 y.o., Afr Am, history of depression
with psychotic symptoms
1 previous hospitalization for visual and
auditory hallucinations in July 2011 (bugs on
ceiling and voices telling her to hurt herself),
self-injury
history of SI with plans but no previous
attempts, cites parents and religion as
protective factors
Did you (or your supervisor) report the student
to the Department of Criminal Justice in
accordance with the NYS Mental Health Law
.946/ Safe Act requirements? (if yes, note date
and time of reporting)
Client was not reported to DCJS under NY Safe
ACT.
Summary of risk factors to self or other
It was determined that the student did not meet
criteria for mandatory reporting because the student
was not imminently suicidal when counselor met with
her. The student denied any current plan or intention
to hurt herself or anyone else. The student was
referred to the hospital because she was experiencing
auditory and visual hallucinations (muffled voice,
scary music and ghosts and skeletons but no
command hallucinations), unable to sleep, and
appeared unable to care for herself (not attending
classes or eating).
Summary of risk factors to self or other (cont.)
She has a past history of command hallucinations that
tell her to hurt herself, but she was not experiencing
these currently and so deemed not to be in
immediate risk of harm to self or others. She
presented voluntarily for services and has agreed to
go to Bassett Hospital to prevent the hallucinations
from increasing in frequency or severity. It was
determined that the student met criteria for the .941
under the grievously disturbed criteria and not the
imminent threat to self or others. At no time currently
or in the past is there any knowledge that the client
had homicidal ideation or plan.
With whom did you consult about this decision?
Natalie was seen by Counselor B.R. who
consulted with this writer. I also consulted
(without revealing the client’s name or other
identifying information) with the Associate Vice
President of Student Development Jeanne Miller
Ph.D. Both agreed that the client did not meet
criteria for reporting under the SAFE Act.
If the student went to the hospital or meets with
other mandated reporters, you should report your
decision about reporting to their other providers.
Please document with whom you communicated
with regarding the decision, if any.
I called Bassett Hospital Crisis Unit and
communicated with nurse Mary McCarthy that we
did not feel the student met criteria for mandatory
reporting under the Safe Act and were not reporting
the student. Bassett stated they did not report her
to the DCS/DCJS either.