Overview

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:

  1. A health or mental health care practitioner who examined the individual within the last six months;
  2. A member of the individual’s household;
  3. A school official;
  4. A police officer; or
  5. A district attorney.

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.

Frequently Asked Questions

When did the reporting requirement under Mental Hygiene Law (MHL) 9.46 become effective?

The reporting requirement became effective on March 16, 2013, and additional mental health professionals were included as reporters on July 6, 2022.

What does the new MHL 9.46 require be reported?

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.”

Who is required to report under MHL 9.46?

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.

Who is potentially a subject of an MHL 9.46 report?

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.

Does the reporting requirement apply to mental health professionals working in private practice, on general hospital wards, or other locations outside of psychiatric wards?

Yes, the requirement to report is not dependent upon the location of the treating professional or the patient.

Are there exceptions to this reporting requirement?

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.

What if there are several mental health professionals treating a particular individual – are all of them required to make a report?

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.

What information about the patient should be reported by mental health professionals?

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).

Are such reports in compliance with HIPAA?

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.

When should a mental health professional make a report?

The mental health professional should make a report as soon as possible.

What information will a local DCS report to DCJS, and what can DCJS do with such information?

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.

How long will DCJS retain the personal information they receive?

DCJS must destroy information received five years after receipt.

Mental health professionals must make reports when, in their professional judgment, it is believed that the patient is “likely to engage in conduct that could seriously harm the patient him/herself or others.” What does that mean?

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.1 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 9.45 emergency assessment). It is not, however, necessary to establish that the patient has a gun before making the report.

Can mental health professionals who make a determination to report or not to report be held liable?

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.