By: Annette Hanson, M.D.

Following the December 2012 shooting at Sandy Hook Elementary School, Maryland followed the lead of many other states in passing a package of new gun control legislation. Since our new gun law went into effect in October 2013, I’ve heard many questions from colleagues about interpretation and implementation of the law and what new obligations it imposes on clinicians, if any.

Let me begin with a disclaimer: am not a lawyer, nor am I an appellate judge or attorney general. Legislators pass laws, but until those laws get challenged or administrative policies get written to implement them, the details of how they get carried out can be left to interpretation. Where my opinion differs from that given to you by your hospital counsel or malpractice carrier, listen to your lawyer.

There are three parts to the new Maryland law, which is actually a revision and update of previous public safety and civil commitment laws. The three parts are: disqualifying conditions, mandatory reporting and gun right restoration.

Under the old law there were certain characteristics that prohibited someone from owning a weapon. You couldn’t own a gun if you had been convicted of certain crimes, if you were a habitual abuser of chemicals, or if you had ever been admitted to a psychiatric facility for longer than thirty days. Most states mirror federal law that prohibits “mentally unstable” people from owning weapons, but most states had no systematic means of identifying these people and did not routinely report them.

Under the new law, Public Safety §5-133.2, health facilities are now required to report the name and identifying information of anyone who has been voluntarily admitted for more than 30 consecutive days or who has been civilly committed. In addition, the facility must report the day of admission or commitment and the name of the facility. The information is entered into the National Instant Criminal Background Check System (NICS), the database used by registered firearms dealers. Ideally this is supposed to prevent an individual from purchasing a weapon in the future. This reporting duty is the obligation of the facility, and does not alter or preclude a clinician’s current duty to report imminently dangerous patients under Maryland’s Tarasoff requirement.

For those patients who own a weapon at the time of commitment, the new gun legislation has modified the Health General article governing civil commitment, Health-General §10-632, to require the administrative law judge to order the patient to surrender a weapon and to refrain from purchasing any in the future. The judge must do this if there is “credible evidence of dangerousness to others.” The law does not specify that this credible evidence must be based on a clinician’s assessment or opinion, and as illogical as it seems, it also does not address the issue of dangerousness to self. If you’re confused about that, I can tell you that at least one administrative law judge I’ve talked to is as well. At the time of this writing, no one involved in the commitment process seems to know exactly how a patient confined to a seclusion room or a locked inpatient unit would surrender a gun.

Finally, the new law provides for restoration of a gun owner’s rights under certain conditions. The patient must submit a statement explaining why he was disqualified from owning a firearm and why he felt he should regain the privilege. Along with the application he must submit a certificate signed by a licensed psychiatrist or psychologist documenting the following facts: how long the patient had been without symptoms, how long he had been compliant with treatment, and whether or not he would be a danger to himself, to others, or to general public safety if he were allowed to own a weapon again. The certificate must be submitted on a form approved by the Health Department, but there doesn’t appear to be any requirement that the mental health professional must be employed by or contracted with the department. In theory, a patient could ask his or her psychiatrist to do this. Fortunately, the law also provides for both civil and criminal immunity for clinicians providing a certificate for restoration.

This is an abbreviated version of the parts of the law most likely to affect general psychiatrists.

 Click here for more on how the process works in Maryland.