SAFE Act enables massive breach of doctor-patient relationship, lawsuit contends

BY RAQUEL OKYAY

Governor Cuomo has faced massive opposition to his controversial gun control act NY Safe. The latest fight comes in the form of a lawsuit against a provision in the act that allows the state to breach the seal of doctor-patient confidentiality
Governor Cuomo has faced massive opposition to his controversial gun control act NY Safe. The latest fight comes in the form of a lawsuit against a provision in the act that allows the state to breach the seal of doctor-patient confidentiality

Gun rights advocates have asked Rochester District Court to end a state regulation they contend authorizes the state to secretly compile personal mental health information without cause to confiscate firearms in violation of the Second, Fourth, Fifth and Fourteenth Amendments.

“We made a motion for preliminary injunction to shut down the Integrated SAFE Act Reporting System,” said Webster-based attorney and policy analyst, Paloma A. Capanna.  “Our concern here is that the New York State police in conjunction with local law enforcement are using confidential mental health information to strip people of their firearms and pistol licenses.”

Capanna, who is representing Suffolk County retired law enforcement officer Donald “David” Montgomery in a federal lawsuit against Gov. Andrew M. Cuomo and other state authorities, said the state unlawfully revoked Montgomery’s pistol license and confiscated his firearms infringing upon a plethora of his civil liberties.

Montgomery, who is also a U.S. military veteran, sought voluntary treatment for insomnia at Eastern Long Island Hospital in May, was treated by a mental health professional and sent home, she said. “A few days later he received a call from the Suffolk County Police telling him they had to come by and pick-up his guns.” Assuming it was a clerical error that would be cleared-up later; she said Montgomery complied with the gun confiscation.

“He has no criminal history and no history of a mental health condition,” said Capanna. “Never did David imagine that he, a 30-year decorated police officer and veteran, would be on a danger list for seeking out medical treatment for having trouble sleeping.”

The complaint said the state is actively conducting an overreach into the personal health records of tens of thousands of New Yorkers, more than 99 percent of whom do not even know that the confidentiality of their doctor-patient relationship has been compromised.  These “not-so-private” health records are being shared between state agencies, but not being provided to the patient by notice or upon request, Capanna said.

Court papers allege that New York State, who is being singled out by the federal government due to its failed reporting efforts vis-à-vis the NICS background check system,  is now constructing its own database as an apparent side step.  This move disregards federal HIPAA laws meant to protect privacy rights, said Capanna, who has over 20 years litigation experience. “Nobody is receiving notification; nobody tells the patient.”

The prior standard for a break-up in the confidential doctor-patient relationship was “a likelihood of serious harm to self or others” as articulated in HIPAA, she added. Since the New York SAFE Act was enacted, she said the state adopts the position that all or 100 percent emergency room admissions to state psychiatric centers meet the reporting requirements.

“Mental Health Law Section 9.46 has created a Constitutional violation of epic proportion, effecting tens of thousands of people, 99 percent of whom have no way of even knowing that their personal health information has been compromised by their medical providers and by state, county, and local governments, and one-percent of whom have lost their Second Amendment rights,” said the complaint.

Stephen J. Aldstadt, president of Shooters Committee On Political Education, filed a declaration in support of Montgomery’s lawsuit in federal court. Aldstadt said there is virtually no review of which mental health patients are reported into the system. “Reports are going straight through.” Complaints are supposed to be reviewed by the director of community services, he said. “There are numerous places that action against Montgomery should have been stopped.”

For example, hospital workers inadvertently listed Montgomery as an involuntary submission when he was a voluntary patient, he said. “They would not correct the error nor release any information on it, even for the person in the file.”

In a separate action gun group SCOPE is seeking answers in federal court to a whole list of questions about the passage, implementation, and enforcement of Cuomo’s signature gun control law – the New York SAFE Act.  “We filed a FOIL request with the state for police procedures – files we are supposed to be able to see – and almost everything we asked for they said they have no records,” said Aldstadt.

Security measures, if any, are unknown, he said. “If there is some kind of security protocol for this entire system apparently there is no record of it.” SCOPE was founded in 1965 by a group of gun owners in western New York whose focus is the protection and preservation of the right to keep and bear arms. Today SCOPE committees are represented in 41 of the state’s 62 counties.

In order to defeat the SAFE Act, Aldstadt said SCOPE members are moving forward as follows:

Old-fashioned grassroots lobbying; continue to put pressure on legislators to push reform bills and defunding measures; support various lawsuits against the SAFE Act; increase frequency of voter registration drives and get-out-the-vote efforts; and preparation of a “lobby day” in March.

“The low voter turn-out last election was just shameful,” said Aldstadt. “New York saw its worst voter turn-out since 1930.”