Special Emphasis on the New “Extreme Risk Protective Order”

by Erik Roskes, M.D.

I have been asked to clarify the new statute permitting the authorization of an Extreme Risk Protective Order (ERPO), allowing a court to order law enforcement to temporarily seize firearms from an individual determined to present a risk. There has been much confusion about the ERPO process, in part related to the patchwork nature of the statutory schemes related to mental health risk management. This article summarizes the various statutory mechanisms that allow clinicians to take actions to mitigate risk posed by patients, including the new ERPO law.  I hope that you find this useful as a framework for addressing risk questions in your practice.  Please note that I am not a lawyer, and this is not legal advice. If you have specific questions about how to proceed legally, you should address them to your attorney, or to your facility’s or program’s attorney.

Emergency Evaluations

The oldest statutes targeting risk, relate to emergency evaluations and civil commitment and are outlined in Title 10 of the Health-General Article of the Annotated Code of Maryland.  Section 10-622 indicates that a petition for emergency evaluation, commonly termed an “EP” or emergency petition, must include “a description of the behavior and statements of the emergency evaluee or any other information that led the petitioner to believe that the emergency evaluee has a mental disorder and that the individual presents a danger to the life or safety of the individual and others.” Note that this definition does not require a showing of “imminent” danger and that the EP form allows the petitioner to document any knowledge of the evaluee’s access to firearms.  This question was added over 20 years ago after a tragic incident in which an individual who had been petitioned killed a police officer while the EP was being served.  Firearms may be seized by police during the service of an EP, but patients released from the ED may immediately request return of their weapons, unless other mechanisms are in place to prevent it.  This is one of the loopholes that an ERPO might close if timely filed and executed.

If you have to EP a patient, you should provide as much detail as you can, including any information regarding weapons.  My practice is to complete the form and also to provide a detailed, typed note explaining why I am EPing the patient.  The ER staff who receive the patient will find this information useful as they evaluate the patient.  A fillable EP form may be downloaded from the state courts website.

Involuntary Admissions (aka “Civil commitment”)

Involuntary admission of a patient is described in Title 10, §§10-616 and 10-617 of the Health-General Article.  Colloquially known as “civil commitment”, it is actually a two-step process.  Two physicians—or a physician and a psychologist or nurse practitioner—must certify that, among other things, the “individual presents a danger to the life or safety of the individual or others.”  As with an EP, no “imminence” is required.  Additionally, the individual must be “unable or unwilling to be admitted voluntarily,” and there must be “no less restrictive form of intervention that is consistent with the welfare and safety of the individual.”  A person in the hospital on the two certificates has not yet been civilly committed.

Pursuant to §10-632, the individual confined under the two physician certificates has a right to an administrative hearing within 10 days of initial confinement, which begins upon admission to the inpatient unit.  At that hearing, the administrative law judge (ALJ) must find by clear and convincing evidence that the “individual presents a danger to the life or safety of the individual or others,” along with the other findings certified by the two physicians.  Only when the individual has been found by the ALJ to meet these criteria has civil commitment occurred.

While §§10-624 and 10-625 limit the time a person may be held in an emergency facility on an EP to 30 hours, the most recent revisions to §10-632 affirmatively states that being held in the emergency facility beyond 30 hours is not alone grounds for release by the ALJ.  This is important for hospital presenters and inpatient psychiatrists to know.

Duty to protect

In general, physicians’ obligations are to their patients, and only in unusual circumstances do we have any obligation to anyone else.  However, there are times when we do owe a duty to a third party. For example, we are required to report suspected child abuse. Maryland law also provides guidance for situations in which a patient expresses a wish or intent to harm another person.  Many clinicians incorrectly call this a “duty to warn,” but warning the victim alone is neither required nor would it be sufficient in Maryland.  This obligation is often mis-named “Tarasoff” after the California case that first established a clinician’s duty to a third-party in such cases.

In §5-609 of the Courts and Judicial Proceedings article of the Annotated Code, our obligation is actually framed in the negative: we cannot be held liable for the action of a patient unless “the patient indicated… by speech, conduct, or writing [his/her] intention to inflict imminent physical injury upon a specified victim or group of victims.”  Once we become aware of this risk, which, unlike the risks considered for an EP or civil commitment, must be “imminent,” we have three options: We can

• “Seek civil commitment;
• “Formulate a diagnostic impression and establish and undertake a documented treatment plan calculated to eliminate the possibility that the patient will carry out the threat; or
• “Inform the appropriate law enforcement agency and, if feasible, the specified victim or victims of:
  1. “The nature of the threat;
  2. “The identity of the patient making the threat; and
  3. “The identity of the specified victim or victims.”

This statute also explicitly protects us from liability regarding violating the patient’s confidentiality if we act in good faith, regardless of the course of action we choose to take. Notably, option “a,” civil commitment, both (1) addresses the illness and its consequent risk and (2) protects the patient’s confidentiality.

Gun restriction law

There are a number of classes of people who are indefinitely and categorically restricted from possessing firearms for mental health or other reasons.  As prescribed in the Public Safety article of the Annotated Code, §5-133 and subsequent sections, these include people who:

a) Have been involuntarily committed to a psychiatric hospital;

b) Have been voluntarily admitted to a psychiatric hospital for more than 30 consecutive days;

c) Have been found incompetent to stand trial:

d) Have been found not criminally responsible;

e) Have been placed under a guardianship order for mental incapacity; or

f) “Suffer from a mental disorder…and have a history of violent behavior” against self or others.

Items a-e are objective and categorical—the predicate event either happened or it did not.  Also, there is no attribution of risk specific to firearms: the predicate event alone is enough to cause the person to be reported to the registry, regardless of any specific risk attendant to his or her access to firearms.  Once the person is identified as a person subject to firearms restriction, a number of steps must occur for someone to lose the right to possess firearms. These steps differ, based on the reason for restriction.

When a person is involuntarily (civilly) committed, Health-General §10-632(i) allows the ALJ in a second finding based only on dangerousness to others to “order the individual….to (1) surrender to law enforcement authorities any firearms in the individual’s possession; and (2) refrain from possessing a firearm unless…granted relief from firearms disqualification….”  The statute, as written, does not permit the ALJ to order surrender of firearms based solely on dangerousness to self, leaving another loophole that an ERPO might close for people about whom the only concern is suicide.  Such individuals are reported to the Maryland Department of Health (MDH), which manages a database concerning them. MDH in turn reports to both the State Police (who enforce the Public Safety Article) and to the FBI (who enforce federal restrictions, which differ slightly from state restrictions).  Hospitals are mandated to directly report all patients who have been voluntarily admitted beyond 30 days, and they similarly report to MDH, which then reports to the same law enforcement agencies.

When people are found incompetent or not criminally responsible under Title 3 of the Criminal Procedure Article of the Annotated Code, the court rendering the finding is to report the finding to the Criminal Justice Information System Central Repository, which in turn reports to the State Police and the FBI.  In contrast, a court appointing a guardian under the Estates and Trusts Article of the Annotated code is not mandated by statute to report, and it is not clear to me how, or if, these reports are made.  Note that the restriction applies to an individual placed under a guardian of property as well as to a guardian of person.

Finally, criterion “f” strikes me as inherently subjective.  I am aware of individuals whose clinicians have reported their concerns directly to the State Police, prior to the implementation of the ERPO statute described below.  It is worth noting that there need not be any connection between the mental illness and the history of violence, and there is no temporal limit. Thus, a 40-year-old person with, say, panic disorder who was in a bar fight as a college student could be subject to this restrictive criterion.  In my view, this vagueness renders this part of the statute unenforceable.

Individuals subject to any of the above restrictions can petition for relief, formally requesting that their rights to possess firearms be returned.  This is managed by the MDH Office of Court Ordered Evaluation and Placement (formerly, the Office of Forensic Services).  If you are aware of an individual who has had his or her rights restricted who wishes to petition for relief, the process and forms may be found here.

Extreme Risk Protective Order

Last year, the General Assembly passed a law allowing for the temporary removal of firearms from people posing a risk to others, making Maryland the 13^th state to enact a version of what has come to be known as a “red flag” law. This is the Extreme Risk Protective Order, or ERPO.  The Court system has posted both a brochure and a set of FAQ’s on their website.  Any number of interested parties can file a petition for an ERPO, including the spouse or cohabitant of the individual, any relative by blood, marriage or adoption, a co-parent, a current dating or intimate partner, a current or former guardian, a law enforcement officer or a medical professional who has examined the individual.  Medical professionals include physicians, psychologists, social workers, LCPCs, nurse practitioners, or LMFTs. Maryland is the first state to include clinicians among the possible petitioners, so legislators and policy researchers will be counting on feedback from us as the ERPO becomes a more common practice.

Here is where a fillable form is available online. It does not require the petitioner to cite the cause of the risk. The petition must include information regarding the person’s “behavior that leads me to believe he/she presents an immediate and present danger of causing personal injury to himself/herself, to me, or to others by possessing a firearm.”  There are several optional forms that may be appended to the petition, including one allowing the petitioner to include information about the individual’s mental health history.  The forms must be filed at the District Court with the clerk (during business hours) or a District Court Commissioner (after hours).  The petitioner is required to appear at a hearing.  Under the statute, The commissioner or judge reviewing the petition must consider whether an EP is appropriate and, if so, to take appropriate action.

The statutes outlining the ERPO process are found in the Public Safety Article of the Annotated Code, §§5-601 through 5-610.  The statute explicitly provides liability protection for providers who file an ERPO in good faith, regardless of outcome, but it does not provide similar protection for providers who elect not to file an ERPO in favor of another course of action. Providers elect not to file an ERPO should document their reasoning in detail, noting that they have elected another course of action to mitigate the risk of harm (such as seeking civil commitment or an EP).  One attorney I spoke with surmised that following the path laid out in the “Duty to Protect” section above should afford the provider the protection of the good-faith provision therein. Maryland Appellate law provides similar protection to providers who elect not to involuntarily commit a patient after making a decision that commitment criteria have not been met, expressly to eliminate any incentive that providers might curtail patients’ liberty interests merely to avoid liability.[1]  This should give us some comfort if we choose not to file an ERPO based on our reasoned decision that the patient does not meet criteria for the intervention,  because there are other courses of action that we believe can mitigate the risk of harm.  Nonetheless, the MPS Legislative Committee may want to consider whether there is a role for statutory revision to explicitly shield potential petitioners who, in good faith, choose other courses of action.

According to Dr. Paul Nestadt at Hopkins, 114 petitions were filed in just the first month following implementation of the statute on October 1, 2018.  Notably, only one petition was identified as being filed by a clinician. It is my understanding that the Gun Center at the JHU Bloomberg School has begun investigating the use of the ERPO.  According to Paul, preliminary information indicates that Maryland has both a higher petition rate and a higher denial rate than other states.  Unfortunately, one individual was killed by police attempting to serve an ERPO.  on an individual who refused to comply.[2]  Just like all well-intended laws (or, for that matter, treatment interventions), this one may have adverse and unintended consequences.

Dr. Corneliu Sanda, Chair of Psychiatry at Medstar Franklin Square, expressed concern about the changing behavior and reduced responsiveness of law enforcement in October.  He noted that in the past, police often would remove firearms from a patient’s home when serving an EP, which, as noted above, is at least temporarily permitted under the EP law.  However, after the ERPO law took effect, the police in the neighborhoods served by Franklin Square began “refusing to remove guns from the homes of individuals subject to EPs, even when the family requested that they do so,” instead directing the family or the hospital clinicians to initiate a separate ERPO process.  He also expressed the concern that clinicians might have reservations about or might avoid filing petitions in large part because of the requirement to file them directly with the court and to testify at as many as three subsequent hearings.

Notwithstanding these potential pragmatic problems and adverse consequences, early research into statutes similar to Maryland’s ERPO law indicate that this procedure can effectively prevent a portion of firearm-related deaths. In the US, guns are the most common method of suicide, and suicides represent almost two thirds of all gun deaths.[3] The very presence of a gun in the home more than triples the risk of suicide and doubles the risk of homicide,[4] due largely to the high lethality of firearms as a method.[5] The oldest red flag law in the US, Connecticut’s 1999 Risk-Based Gun Removal Law was estimated by policy researchers to have saved 1 life for every 10.6 guns seized.[6] Along similar lines, researchers in Indiana used a synthetic control model to estimate that Indiana’s red flag law reduced firearm suicides by 7.5% over 10 years, without an increase in suicides by other means.[7]  We can hope that even with unintended consequences, this law will save lives by reducing immediate access to lethal means of suicide for people at “extreme risk.”

Conclusion

There are many ways to reduce the risks presented by firearms owned or possessed by people with mental illness.  Numerous statutes are involved, and, sometimes, inadequate language defining how they are to be fully implemented leads to confusion.  There are many moving parts, gaps, and contingencies, leading me to conclude that the process will never be properly implemented without a complete overhaul of the numerous statutes, without funding and direction for implementation of all of the reporting requirements, and without serious reconsideration of the Constitutional principles embodied by the Second Amendment.  I am not as hopeful as some of my colleagues are that this statute will dramatically impact the gun violence epidemic in which we currently find ourselves.  That said, I hope this summary is helpful to readers.

Acknowledgements: This article benefitted various discussions with MPS members and from specific feedback and input from a number of people, including Drs. Anne Hanson, Paul Nestadt, and Corneliu Sanda, and from Kathleen Ellis in the Office of the Attorney General.

December 2018

 

[1] See Bell v Chance, 460 Md. 28, 56-57, 188 A,3d 930, 946 (2018), also see Williams v Peninsula Regional Medical Center, 440 Md. 573, 587, 103 A.3d 658, 666 (2014).

[2] See https://www.cbsnews.com/news/maryland-officers-serving-red-flag-gun-removal-order-fatally-shoot-armed-man/

[3] See the CDC WISQARS Injury Surveillance database at https://www.cdc.gov/injury/wisqars/index.html.

[4] Anglemyer, A., Horvath, T., & Rutherford, G. The Accessibility of Firearms and Risk for Suicide and Homicide Victimization Among Household Members: A Systematic Review and Meta-analysis. Annals of internal medicine, 160(2):101-110 (2014), available at http://annals.org/aim/fullarticle/1814426/accessibility-firearms-risk-suicide-homicide-victimization-among-household-members-systematic.

[5] Vyrostek SB, Annest JL, Ryan GW. Surveillance for fatal and nonfatal injuries–United States, 2001. MMWR. 53(SS07):1-57 (2004), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5307a1.htm.

[6] Swanson, J. W., Norko, M., Lin, H-J., Alanis-Hirsch, K., Frisman, L., Baranoski, M., Easter, M., Robertson, A. G., Swartz, M., Bonnie, R. J., Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does It Prevent Suicides?  Law and Contemporary Problems, 80, 179-208 (August 2016), available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4830&context=lcp.

[7] Kivisto, A. J., & Phalen, P. L. (2018). Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015. Psychiatric services, 69(8):855-862 (2018), available at https://ps.psychiatryonline.org/doi/10.1176/appi.ps.201700250.