Constitutional Law, Science, Uncategorized

What is mental illness? Where is the bright line drawn?

Submitted by Charlton Stanley, guest blogger
(Otteray Scribe)

Image What is mental illness?  It’s a hot topic in the news recently, because of proposed gun control legislation. I saw a photo yesterday of people holding up a huge sign saying, “Keep guns out of the hands of mentally ill.”

There is far more to the demonization of the mentally ill than just the firearms issue. It spills over into the Federal Aviation Administration and the Department of Transportation. It is not just guns; it is airplanes and trucks as well. This brings us to the core question of, “What is mental illness?”  The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) is the current handbook for classifying mental disorders.  DSM-V is in the final stages of development and will be published in May 2013. That is only next month.

Which brings us back to the original question of what exactly is mental illness?  In New York, a man’s home was raided, his Concealed Carry Permit revoked and guns confiscated because someone told the police he was taking an anti-anxiety medication.  I have received emails in the past week from several friends about this issue.  One of them is a vet, M→F transgendered. She is concerned about being able to renew her own Concealed Carry Permit (CCP). As a veteran and avid target-shooting hobbyist, she is well trained in gun safety and use. As a transgender woman, she is a target and prey according to FBI statistics. Hate crimes against LGBT people are at a 14-year high.

According to the DSM-IV-TR, “Gender Identity Disorder” is one of the mental illnesses. In the DSM-V, it is renamed “Gender Dysphoria.”  While claiming it is not a mental illness, the fact that Gender Dysphoria is in the DSM-V in the first place makes it suspect in the eyes of many. Two days ago, she sent this excerpt from a local outlet:

The enforcement action started on March 29th when New York State Police asked the Erie County Clerk’s Office to pursue revoking the man’s pistol permit because he owned guns in violation of the mental health provision of New York’s newly enacted guns law called the SAFE ACT.

The allegation turned out to be untrue and his guns returned to him. As it turned out, the police, sua sponte, initiated the action. The only lawyer involved in the matter was the man’s own attorney.

Erie County Clerk Chris Jacobs said, “When the State Police called to tell us they made a mistake and had the wrong person…it became clear that the State did not do their job here, and now we all look foolish.”

Flaws in the mental health reporting provisions of the NY SAFE Act were blamed for the misunderstanding.  The county clerk added, “Until the mental health provisions are fixed, these mistakes will continue to happen” (source: WKBW-TV)

The bigger issue is how come taking an anxiolytic prescribed by one’s family doctor disqualifying?  It would be interesting to know just how many of those raiding officers, and their supervisors, are taking medication for anxiety, depression or sleep.

Is mild anxiety a reason to stigmatize someone, and possibly violate his or her civil rights?  It gets better. The FAA Medical Examiner will not allow psychiatric medications for any class of Medical Certificate. If a psychiatric medication, it is an automatic disqualification. Several non-psychiatric medications are disqualifying as well. When Tagamet (cimetidine) was first released to treat ulcers and hyperacidity, it disqualified one from holding an FAA Medical Certificate in order to fly.  I first heard about that from a friend who was an Aviation Medical Examiner at the time. He told me the FAA put Tagamet on the list because, “It acts on the central nervous system.”

What is mental illness? Some say it is anything that is in the DSM. However, as I have pointed out in court many times, the DSM is a handbook put together by a committee. Everyone has heard the old joke about what a committee produces: “An elephant is a mouse designed by a committee.”

The new DSM-V will be expanding the definition of ADHD.  The definition of PTSD is supposed to be clarified in the final definition.  Homosexuality was removed from the DSM-IV. If it was a mental illness, the why was it removed? The answer to that is simple. It is not a mental illness.

Let’s look at posttraumatic stress disorder (PTSD) as a single example of a single disorder.  PTSD is classified as an anxiety spectrum disorder. Symptoms include feeling anxious, vivid dreams or memories of a traumatic event, and avoidance of situations that might remind one of the traumatic event.  Those are called “triggers.”  Some claim that only combat veterans can suffer PTSD. That is nonsense. The original trauma can be anything causing one to fear for their own life or safety, or that of others. No one knows how many Americans suffer from PTSD, but the NIMH estimates 7.7 million adults have diagnosable PTSD. That is about 3.5% of the population.  22% of Vietnam veterans returned with PTSD. My personal impression is that number is too low by a significant margin. Many people with PTSD have never been diagnosed. Why? Because they are afraid to talk to a doctor or clinical social worker.

How many rights should be taken from all those citizens and veterans, simply because they have PTSD?

When some of the most prominent mental health experts in the world cannot agree what mental illness diagnoses are, how are lawmakers, judges and law enforcement officers supposed to know? Is being transgendered a mental illness? How about homosexuality—oops, never mind, they took that out of the DSM-IV.  There are many people with bipolar disorder walking around and you will never know it, especially if they are taking their medication.  Should a person with well-controlled bipolar disorder be allowed to drive an 18 wheel truck, fly a light airplane, or own firearms?

It is interesting that the FAA has created a new class of aircraft, call Light Sport Aircraft” or LSA, which do not require an FAA medical certificate to fly.  A light sport pilot may fly with a valid and current driver’s license.  Glider pilots can exercise the privilege without a medical certificate.

This brings us to driver’s licenses. If a person, who is taking Xanax or some mild anti-depressant is not allowed to own firearms or fly a Cessna 172, why can they drive? An average automobile or pickup truck weighs almost two tons. They drive on two-lane roads at 55 or 60 mph. That means on a two-lane road, they are passing within two to four feet of each other with a closing speed of about 120 mph.

Just what is mental illness, and where is that bright line drawn for different activities and privileges of ownership? Think about it. Your physician has to give you a formal diagnosis in order to write a prescription for any medication. Almost any Primary Care Physician, especially family doctors, will tell you that a large percentage of their patients are receiving medications for diagnosed psychiatric conditions. The most common are depression and anxiety, either situational or endogenous.

Alcohol, in my opinion, is much more dangerous than any antidepressant or anxiolytic on the market.  Yet, alcohol is legal in most areas. The individual is responsible for keeping their alcohol level under the legal limit, without any government official monitoring them.  The rule for pilots is, “eight hours from bottle to throttle.”  In other words, if you intend to fly, there should be at least eight hours between the last drink and flying. My rule was always 24 hours just to be on the safe side. Alcohol is involved in far more assaults, shootings, auto crashes, and suicides than any psychiatric medication I know of.  That is because alcohol is a disinhibitor.

It is unfortunate that Congress saw fit to suppress data collection on firearms violence back in 1996. I see many pronouncements on violence related to firearms, but without real science, those pronouncements are meaningless.  Last January, President Obama lifted the 17-year drought on data gathering.  Some members of Congress and the NRA are demanding that the data not be used to promote or advocate any position on violence. Fine. That is the way data should be gathered—content neutral. That honors the null hypothesis approach to research.  However the results of the data fall, it should be accessible to other researchers. It must not be buried.

Legislation and administrative rules that limit rights are already having negative effects on people with mental health issues. They do not get treatment, or ask their doctor for advice. Sometimes they lie.  Sometimes a patient will show up, insist on paying cash, register under a John Doe alias, give a vacant lot as an address and use 888-88-8888 for a Social Security number.  Most people who need mental health medications or treatment refuse to seek help. If anyone thinks that is a good thing, they are not paying attention.

As my father used to say, “Anybody with one eye and half-sense could have seen that one coming.”

HIPAA is supposed to keep your records private, but they are accessible with a court order. Alternately, any agency issuing a license or certificate can insist on the applicant signing a HIPAA complaint medical release form. Sign the form or you do not get your license.  One must always beware the Law of Unintended Consequences.

Here are a few tidbits to chew upon. Please discuss. Where is that bright line?

412 thoughts on “What is mental illness? Where is the bright line drawn?”

  1. Bron,

    Save all that over wrought right-wing militia crap for somebody who cares.

  3. I am disgusted at the reality that a minority of senators can control and hog tie the entire body. I pin part of the blame on Sen. Reid for refusing to do meaningful filibuster rule reform. The American society is ill and refuses to seek medical help.
    Bron,
    No one is suggesting getting rid of all of the precious guns. We have to pass laws because some gun owners can’t be trusted with weapons of mass destruction.

  4. Blouise:

    I would say just propose a Constitutional Amendment to eliminate the 2nd Amendment. Why bother trying to do it incrementally? Get 38 states and you can just do away with guns in the hands of citizens. Why bother spending all of that time and money passing hundreds of laws?

  5. Yep … although these guys weren’t all that interested in the politics of this week’s efforts in Washington, they basically saw it as one tough old bird put it: “Good if they win but just as good if they lose because they’ll use it against the gun lobby blankety-blanks in 2014.”

    1. SwM,

      I must disagree, if only slightly. Democrats bear equal responsibility for this ad other Senate logjams by refusing to change the current filibuster rules. Harry Reid bears the brunt of this responsibility. Making 60 votes the criteria for the Senate passing, or even discussing potential legislation places power in the hands of a minority and thus makes a mockery of our election system.

  7. “With all due respect to those in media who want to blame yesterday’s vote on Democrats, it seems pretty obvious to me the evidence points in the other direction.

    Update: The New York Times reports today that on background checks, “just enough Democrats broke with their party to make a difference.” That’s demonstrably wrong: 51 Democrats supported the bill, as did four Republicans, while four Democrats broke ranks. For the math impaired, 51 + 4 + 4 = 59. It took 60 votes, not 59, to overcome the GOP filibuster.” Rachel Maddow

  9. Elaine,

    Somehow the “ork” part of New York attached itself to my name and then the words were posted before I finished.

  10. The Violence We Live With
    By Charles P. Pierce
    4/18/13
    http://www.esquire.com/blogs/politics/our-violent-country-041813

    WASHINGTON — It is an odd day to be looking out at Our Nation’s Capital, cherry blossoms lost in the murk and the gloom, from the steps of the Senate side of the Capitol building. It has been an odd week in Our Nation’s Capital. It has been a week in which the national government, responding to the will of practically nobody, has determined on its own that our society will tolerate a level of violence in it that is beyond the reach of the national government to do very much about. Moreover, it has been a week in which, by means subtle and overt, the national government has determined which types of violence our society must tolerate in order to remain the freest country in the world. It has done so quite on its own. It has done so against the expressed will of the vast majority of the people out in a country as expressed in the only way they can, now that elections have been determined to have very few real consequences in regard to the levels and types of violence that our society must tolerate in order to remain free. They have told the pollsters, over and over again, because, as far as the violence in America is concerned, the pollsters are the only people listening.

    Earlier this week, the report of a nonpartisan commission was released detailing the fact that, in contravention of international treaties freely signed, and in contravention of over 200 years of formal and informal precedent, the United States enthusiastically constructed and ran a regime of torture in the wake of the attacks of Septenber 11, 2001. The 577-page report’s description of the violence that the national government committed in the name of its people was quickly devoured by the endless news cycle created by the murderous bombing of the finish line at the Boston Marathon. Then, on Wednesday, as a perfect statement of what the national government of the United States believes that the people of the United States will have to tolerate in order to remain free, the Senate refused even to vote on the diluted Manchin-Toomey compromise on regulating the country’s firearms. We congratulate ourselves on our ability to take events like Boston in stride. We congratulate ourselves on recognizing that certain forms of barbarism are intolerable in an advanced democracy. But given a choice truly to take things in stride, to be as indomitable as we say we are, by maintaining our principles in the face of that barbarism, we allow the waterboard and the black site to replace the rule of law, wink at barbarism by memorandum, by legal opinion, by political sophistry.

    The bomb goes off and we vow to move heaven and earth to catch the barbarian. We take all the wounds onto ourselves. We bargain for time-shares on Golgotha. We congratulate ourselves on making so measured a choice. Then we go back to slaughtering each other on the streets because that’s what we have to tolerate on order to remain free. We are a curious people that way.

    I wish I believed it was just all about money. Then Gabrielle Giffords, Michael Bloomberg and the other millionnaires lining up on the other side would have a fighting chance. I wish I believed that it was just all about power, and the threat of losing elections, because then the money now lining up on the other side could even the odds. But I don’t believe it is. There is a strong, coherent bloc in this building that believes that a certain level of violence is so inherent in this country that it is shielded absolutely by the Constitution, and that it is so essential to who we are as a people that to try to control it — let alone eliminate it — weakens our national institutions and blights our national character. There is nothing Machiavellian about this. It is what people believe is part of what makes America what it is. It is an essential article of faith. It is unshakable. It is implacable. And it is triumphant.

    Make no mistake. That is what was determined down there this week among the bright, white buildings. There is a barbarism in the American soul and we must protect some of it by law. To root it out is to endanger our lives on the one hand, and our liberty on the other. We must tolerate the barbarism of the black sites to stay alive, and we must tolerate the occasional mass shooting in order to maintain our liberty. We will find the barbarian who killed and maimed the people along Boylston Street in Boston because his barbarism was not sanctioned, nor was it sanctified by law. That is the simple basic equation of where we are right now.

    Gabrielle Giffords was told this. The families of the children of Newtown were told this. The 91 percent of the American people who want something that they now have no hope of getting were told this, The president of the United States, fairly shaking with impotent anger in the Rose Garden, was told this. We are a violent people. We are an armed people. We are a people intent on permitting mayhem and slaughter. We are a people intent on providing the means for mayhem and slaughter. And because of all of this, we are a free people. It is an odd day to be looking down at Our Nation’s Capital, where barbarism has become so tailored and manicured, and so utterly unremarkable. We might as well speak honestly about it. We might as well speak about it here.

  11. Elaine,

    I just returned from a two day conference on gun control and firearm violence. I was invited to be part of this multi-state task force made up mainly of retired prosecutors, LEOs, and FLEO’s (professional politicians need not apply … 😉 ) last January.

    No one at that conference had the least bit of faith in the Federal Government being able to pass any meaningful legislation as the gun lobby and gun manufacturers have so many Congressmen/women bought and paid for.

    The avenue is through state governments where the representatives are much closer to and much more dependant on the good will of the actual voter. Gun laws such as the ones passed in Connecticut and New York are very possible in most of the highly populated states where the plea to the Second Amendment falls flat as a pancake and viewed as over emotional twaddle (that’s not the actual word all theses LEOs used) used to appeal to the right-wing militia leanings. Many states are enjoying great success in passing these law. Connecticut just toughened their already stern laws, and Maryland has joined the others (California, New York, New Jersey and Massachusetts) in toughening their laws. The gun lobby hasn’t been effective at all in stopping the legislation.

    It is possible to bring sanity to this insane situation.

  13. Elaine,

    I don’t visit certain cites because of tracking cookies…. How can one be sure that even though they say they won’t keep a registry that they won’t use tracking cookies…. It’s my understanding that there are certain government sites that place unremoveable tracking cookies for up to one year….. These you cannot remove from your computer unless you reformat the hard-drive…. I may be incorrect… But…. Just say for arguments sake it’s true and advertisers use it…. For tracking interest….. Then how do you get over the presumption that it can’t be used to inversely track?

  14. Blouise,

    After Newtown, More Senators Vote To Weaken Gun Laws Than Strengthen Them
    By Igor Volsky
    Apr 17, 2013
    http://thinkprogress.org/politics/2013/04/17/1886151/after-newtown-more-senators-vote-to-weaken-gun-laws-than-strengthen-them/

    Excerpt:
    An amendment to weaken gun safety laws attracted more votes in the U.S. Senate on Wednesday afternoon than did a compromise measure to expand background checks to gun shows and online sales. The votes represented the Senate’s first legislative response to the shootings in Newtown, Connecticut.

    Sen. John Cornyn’s (R-TX) NRA-backed proposal to require all states to recognize out-of-state permits for concealed handguns received 57 votes, while the background check amendment offered by Sens. Joe Manchin (D-WV) and Pat Toomey (R-PA) only achieved 54 supporters. Both fell short of the 60-vote threshold, however.

    Under the so-called “concealed carry reciprocity” measure, states with tighter gun regulations would have had to accept permit holders from states with looser standards — even if those permit holders would have been prevented from carrying guns in the state where they are traveling. Federal law only prohibits felons and a few other categories of people from possessing guns, leading many states to enact more restrictions.

    In a letter to Congress during the 2009 debate on a concealed carry reciprocity amendment offered by Sen. John Thune (R-SD), Mayors Against Illegal Guns warned that the effort could empower illegal gun traffickers by allowing them to purchase guns in one state and then drive them across state lines with impunity — so long as they hold an out-of-state permit. Law enforcement would be required to honor concealed carry permits from all 50 states but without properly verifying their authenticity.

  15. Federal Gun Registry Is The New Death Panels
    By Amanda terkel
    Posted: 04/17/2013
    http://www.huffingtonpost.com/2013/04/17/federal-gun-registry_n_3101204.html

    Excerpt:
    WASHINGTON — In the days leading up to Wednesday’s Senate vote on gun legislation amendments, the talking point that has taken off most amongst conservatives as a reason to oppose the background check compromise is that it would lead to a national database of gun owners.

    This myth has spread despite the fact that the deal worked out by Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.) explicitly bars a federal registry. On Wednesday, supporters aggressively worked to hit back.

    “Claims that this legislation would create a gun registry are nothing more than shameful scare tactics,” said Sen. Harry Reid (D-Nev.) on the Senate floor on Wednesday morning. “The opponents of the will of the American people should not spread misinformation or sow seeds of fear about this critical anti-violence legislation. But that’s what they’re doing.”

    The concern over a federal gun registry has spread quickly. Sen. Dean Heller (R-Nev.) was widely considered by Democrats to be one of the Republicans most likely to support the Manchin-Toomey deal. But on Tuesday, he came out against it, saying he believed the bill “could lead to the creation of a national gun registry and puts additional burdens on law-abiding citizens.”

  17. Regarding what Darren said. He and I had this discussion last night after dinner) (Neener Neener you guys!). We were discussion the logistical problems of taggants. I am not sure folks who are talking about taggants understand what they really are. They are microscopic bits of plastic or other material that identify source of manufacture of any substance.

    Gunpowder is not made in small lots. It is made by the ton. For the sake of argument, let’s say there are, or were, taggants in the powder used in the Boston explosion. We can find it was made by the Acme Company, same place Wiley E.Coyote gets his anti-Roadrunner supplies. The investigators find that since Acme makes such a popular product, they sold shipments to every gun shop in the eastern United States and a number of western states. The state of Georgia alone issued 1,137 primitive weapon permits this year and that is probably typical of most states. Let’s assume Acme ships to about half the states, multiply that number by 25. So we are now up more than 28,000 people who purchased Acme gunpowder for hunting purposes. There are probably as many, if not more, non-hunters who use black powder for target shooting only. Round the number off to 50,000 so we can include non-hunting recreational target and competition shooters.
    So now the list of potential suspects is about 50,000 scattered over half the states.

    Every lawyer and law enforcement officer who visits this site is familiar with the chain of custody which Darren mentions above. Having an unbroken provable chain of custody from the time the taggants were added to a vat wet black powder mash at the factory, to the person who buys a one or two pound can of powder at a local store will never withstand a cross examination. Many black powder users use several cans of the stuff a year. They do not buy them all at the same store.

    Oh, forgot to mention, black powder is easily made at home too. Darren and I visited the grave of my ggg-grandfather yesterday. He was a hunter, as well as soldier. Both he and his father, my gggg-grandfather went long hunting with Daniel Boone. Boone was only three years younger than my gggg-grandpa. Where do you think they got their gunpowder? There were no gun stores. Rifles and pistols were made by blacksmiths or they made them in their own shop. They made their own powder. If Grandpa could make his own powder in 1760, why not now?

    How are adding taggants going to help? This is another one of those bright shiny things used to distract from real issues. Those who use black powder in their primitive firearms don’t trust taggants to not foul the barrel and mechanism. Black powder (and substitutes like Pyrodex) are bad enough about fouling barrels and mechanisms. Anyone who has cleaned a rifle or pistol after a day at the range will appreciate how big a job it is to get black powder residue out of a barrel. Adding plastic bits to that would make already difficult cleaning a nightmare. No wonder primitive weapons users are opposed to taggants. It is not about whether the NRA opposed taggants; it is about the fact everyone who ever had to clean a black powder rifle or pistol opposed it.

    Just thought you guys would like to know; Darren and I have a day planned on going exploring some backwoods roads and mountains. Maybe visit the glassblower’s shop and drive on the Blue Ridge Parkway to take in the views. Heh!

  18. Darren:

    this isnt about Newton or Boston or any school shooting or gun death. It is about the desire of certain elements of the left to outlaw the use of firearms in the US.

    I dont know why they dont just come out and say it instead of trying to do it incrementally, well actually I do know, because the people would tell them to go pound sand. Personally, I am of the opinion that if you cant state your intention straight out and be up front about it, it probably isnt a good thing.

    Lets have a vote on this once and for all, up or down, democracy in action.

    Do we want to repeal the 2nd amendment of not? It is a pretty simple question so I dont know why people like Schumer and Obama dance around it. Lets vote and have a Constitutional Amendment. Lets just please stop rolling out the dead for political reasons.

    1. Bron,this isnt about Newton or Boston or any school shooting or gun death. It is about the desire of certain elements of the left to outlaw the use of firearms in the US.
      No one but the NRA and right wingers like Huckabee, Fox news commentators etc has ever said anyone wants to outlaw the use of guns. Fear theory: scare the gun manufacturers so the NRA will continue to do its bidding and scare the politicians that the lobbying $$$ will not continue to come their way from the NRA and their supporters and those who lie, distort and exaggerate to get their way come to the fore while those making sense get pushed further behind.
      That will not continue to be the way. The NRA, et al no longer has the loudest voice and those who rely on elections to keep their jobs will realize they had better mend their ways and listen to the electorate.
      Bron, NO ONE WANTS TO TAKE AWAY YOUR GUNS!

  19. There is no relationship between the NRA and the investigation of the bombing in Boston. This type of reporting is more like yellow journalism. The NRA did not block this investigation. That is totally false, indicating the entirety of the investigation halted as the result of one issue that almost certainly would not have mattered even if the subject legislation would have passed and been ratified as law. Do you really think the perpetrator(s) who detonated those IEDs would have even considered using gun powder that contained tracers? Gun powder and many other explosive substances can be made at home with ordinary ingredients.

    And, according to the same logic, why were the metal pots not inscribed with serial numbers that could trace every metal pot to the manufacturer and even the lot number, what about the ball bearings and the nails? You might argue that the pots and ball bearings are not as nefarious as gun powder. Well if you look at the number of cartridges of ammunition that are used for legitimate hunting, target shooting, or other uses, it is millions to one against what are used for felonious assaults. Plus, how can anyone assume that every object in existence should be registered because it possibly might be used for evil. So what good is it going to be to force the entire gun powder industry, all ammunition retailers to keep records on every single cartridge or flask of powder sold in the us. The record keeping would be massive and the ease to thwart the system would be simple for anyone seeking to evade the system to accomplish. Yet the entire industry would have been upended by such a process.

    Plus, there are certainly going to be evidence challenges considering the lot sizes being in the thousands and it not being specific enough to a particular user. If a judge determines the evidence was improper based on the non-specific large lot size that could be effectively a dragnet for hundreds or even thousands of persons you could see the judge throw out the evidence and the exclusionary rule would exclude any subsequent evidence obtained as a result of the tags that were improperly included as evidence.

    Moreover, the chain of evidence would be highly suspect because each of the steps along the way, manufacturing, freight shipping, inventory reception, stocking, customer sale, and auditing would not be considered reliable. And, when the suspect demands to question each of the shipping clerks and personnel to certify whether or not they can say with a degree of certainty that the flask of gun powder sold 3 years prior on a specific date in a certain box on a certain pallet was definitely transferred as per the manifest or customer log I highly doubt they would be able to do this and a judge likely will throw out the evidence.

    Again, it is more like yellow journalism to paint the NRA or any other regular group of people voting or lobbying for a particular item of legislation as being the evil doers that hampered the investigation of a bombing or any other crime that will happen in the future. If that standard was applied then you might as well blame every person who wanted President Obama to be elected as being ones who violated the rights of whistleblowers, and other questionable acts of Obama. But if you wanted to use yellow journalism to cast supporters of the president to be thought of as evil doers, then use the same tactic the writer of this MSNBC article did against the NRA.

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