[A]Vermont Supreme Court ruling last week on treatment for mentally ill patients could have implications for gun legislation now under consideration in the Statehouse.
The court says the state must prove that a person with mental illness will be a danger to themselves or others in the near future before requiring involuntary treatment.
S.141, which is before the House Judiciary Committee, includes a provision requiring people with mental illness who have been found dangerous by a court to be reported to the National Instant Criminal Background Check System (NICS). Those people would be prohibited from purchasing or possessing a firearm.
The provision is intended to keep guns away from people who represent a greater risk of committing violence, and it would impact a small number of residents. There are about 260 people on involuntary orders in Vermont who would be reported to the background check database if S.141 were to become law.
However, lawmakers are chary of placing limits on people’s rights to own guns. The bill includes a process for people to petition the court to have their gun rights reinstated. That process also relies on the standards for danger in the involuntary treatment statutes.
Members of the House Judiciary Committee are grappling with whether to include an 18-month waiting period for people who have been released from an involuntary treatment order and want to petition the court for reinstatement.
At issue during debate last week was whether a person released from an involuntary treatment order is stable and no longer presents a heightened threat to public safety, or conversely, if the risk is great enough to further restrict that person’s rights.
Sen. Joe Benning, R-Caledonia, fought the waiting period in the Senate, calling it an arbitrary barrier to restoring someone’s constitutional rights. He succeeded in reducing the waiting period from five years to 18 months, but was unable to strip it out altogether.
Rep. Chip Conquest, D-Wells River, said during committee debate Friday that he agreed with Benning, and urged the committee to strike the provision. Gun rights groups, including the NRA, have said they find the reinstatement process problematic, and would prefer to see no waiting period in the final bill.
Attorneys for the Legislature were still researching Friday, but said most states that report people with mental illness to NICS do not have a waiting period.
Others on the committee pushed back, citing testimony from an emergency room physician that suggests people are at heightened risk for violent behavior in the period surrounding an involuntary hospitalization.
The statute says people can initially be placed on an involuntary treatment order if they’re presently a danger to themselves or others, and that such an order can only be extended with a finding that there’s “a substantial probability that in the near future his or her condition will deteriorate.”
The recent Supreme Court ruling found that it’s not enough for the state to demonstrate a person’s mental health is likely to deteriorate in the near future when seeking to extend an involuntary treatment order, but also that they will become a danger at that time.
People who do not pose an imminent danger have rights that include the autonomy to “make decisions about the most personal of matters, even if those decisions are deemed by others to be profoundly ill-advised,” the court said.
That’s a victory for people with mental illness, according to attorney Jack McCullough, with Legal Aid’s Mental Health Law Project, because it “rejects the mindset that once involuntary treatment is ordered the person is going to be in state custody for life.”
The ruling affirms that people are entitled to discontinue treatment in the absence of dangerous behavior, McCullough said. It also affirms that anyone petitioning for reinstatement through the process as envisioned by S.141 would necessarily have been found by a court to no longer be a danger.
“It’s hard to see how the 18-month waiting period makes any sense,” McCullough said, especially if the purpose is to ensure the person is no longer at greater risk of committing gun violence.
Rep. Willem Jewett, D-Ripton, said he wanted to know whether the state takes “affirmative” action when an order of non-hospitalization expires, raising the concern that an order could lapse without any documented improvement to the patient’s mental condition. A representative for the Department of Mental Health was unable to answer Jewett’s questions on the matter Friday.
When a person’s order of non-hospitalization is close to expiring, the court sends notice to the designated mental health agency providing treatment, which in turn fills out a form making a recommendation to the Department of Mental Health, according to McCullough, whose office represents patients in most of such cases. In practice it’s rare for the state not to seek an order of continued treatment, he added in an interview Monday.
“We’ve seen some cases even where the (local) agency says they don’t think the person needs to remain on the order, and the state still files an application for continued treatment anyway,” he said.
House Judiciary is expected to vote on S.141 Tuesday.
