Mentally ill patients had little legal protection from maltreatment and indefinite hospitalization until the early ______century. They were warehoused in state hospitals with little due process protections and evidentiary protections. However, in the 19___’s when the LPS act was passed and many of the state hospitals closed down, many people state that the passage of this act did “do good” as it conferred new critical rights to patients but at the cost of severely reducing services for mentally ill consumers and obtaining lifesaving court ordered treatment very difficult. Some would say that the ball swung in the opposite directions as the court system overcompensated for years of no due process protections. Additionally due to the passage of the Bronzan-Mccorquodale act, which simply stated granted individual counties to administer LPS policies as they saw fit leading to disparate court practices all over the state. However, among pro treatment advocates, there is a general consensus that these services were and still are inadequate to meet the needs of gravely disabled severely psychiatrically decompensated patients.
ALIGNING MENTAL HEALTH PROCEEDINGS WITH DEPENDENCY PRACTICES
First many consider the LPS Conservatorship scheme to be too permissive and broad. The LPS scheme as it stands now focuses on the need to:
Many pro treatment advocates believe that this current framework is not providing patients with enough treatment options. They contend that the current framework focuses on the patient’s rights over what is in their best interest. Based on parents, caregivers, and relatives opining that from years of watching their loved ones decompensate and the courts safeguarding their civil liberties rights over their best interests, there may be a beneficial switch to considering treatment from the scheme of the best interest standard as currently adopted by the dependency system.
In construing mental health legislation, we must avoid any construction that would produce an unreasonable, absurd, or ridiculous consequence for the defendants. However, given ample evidence that the current statutory scheme, it is clear that the current scheme is failing many mentally ill persons and thus “well reasoned” changes would likely produce reasonable positive outcomes. Mental health legislature as it stands does not intend for MH trial judges to discharge a patient, wait helplessly until the next psychiatric decompensation occurs, and the patient ends up in jail, dead, or homeless. Most expert witnesses will opine that when dealing with severe mental illness in a patient suffering from anosognosia it is not a matter of if, but when the next episode occurs at the detriment of the patient’s health and safety.
Best Interest Standard Defined for Mental Health
The legislature could cite the fundamental premise that underlies the purpose of mental health law is the protection of the welfare and best interests of the mentally ill patient. Accordingly, the purpose of any mental health involuntary treatment hearing shall bear in mind first and foremost the need to protect the patient’s best interests and the MH court’s inquiry shall be consistent with the focus on the patient’s best interest albeit with a preference towards voluntary outpatient community care and treatment. Since the paramount purpose underlying mental health proceedings is the protection of the patient’s safety, relative/parental/caregiver involvement shall not represent a competing or adversarial interest in court proceedings. Drawing from In re Jason L. (1990) 222 Cal.App.3d 1206, 1214. Although the court’s interest in safeguarding the patient’s due process rights shall always remain a liberty interest that may not be interfered with in the absence of a compelling state interest; the best interest of a mentally ill gravely disabled patient incapable of caring for his basic needs shall constitute that countervailing “compelling state interest” that the state of California not only bears the right, but a duty, to protect”. Based on this, mental health courts should be afforded the broadest possible scope of discretion in making decisions, allowing evidence, and conducting proceedings (Welf & I C § 362) that best promote the best interest of the mentally ill patient. Welf. & Inst. Code, §§ 300.2, 366.26 (h).
If there is a finding of grave disability, the patient, by Welf & I C § 5008.1 (h) definition is not assumed to have the capacity to take care of their basic needs of food clothing and shelter, and the State of California must play its role as parens patriae.
Patient’s rights groups like DRC may decry and state that this “best interest of the patient standard” is unconstitutionally “vague” and “overbroad”. However, if Conservatorship of Chambers (1977) 71 Cal. App.3d 277, 286 upheld that the definition of grave disability is neither vague nor overbroad, then the same should apply for best interest standard.
While the “best interest” may be “an elusive guideline that belies rigid definition” the legislature should clarify it to meet the reasonableness test in which a reasonable person will be able to reason that it means the “purpose is to maximize the patient’s opportunity to return into society as a stable well-established functional person”(?).
Mental health proceedings whether under CARE court, AOT, or LPS Conservatorship, are not intended to serve as indefinite court proceedings. Involuntary treatment (or conservatorship) with its attendant mental health case plan and treatment services, shall bear in mind that the first priority when proceedings are commenced is a return to society and termination of court involvement due to stability and return of facilities.
The mental health court must balance private interests, government interests, risk of error, cost to the patient, and cost to the public as a whole. That is why this integration of dependency and LPS statute must be considered.
MH court/MH agency Absolute Right to Dismiss an Involuntary Treatment Petition/Case over the Objection of Other Parties/Relatives
One of the biggest complaints from family members and relatives is that the court or the mental health professionals unilaterally decide to terminate a petition for involuntary treatment or “hear only one side” before closing out a petition for involuntary treatment despite family/other evidence of grave disability. Kaplan v Superior Court (1989) 216 CA3d 1354, 1360. However loosely drawing from County of Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434 and more closely Allen M. v Superior Court (1992) 6 CA4th 1069, when the mental health agency wishes to dismiss an involuntary treatment petition it SHOULD notify all interested persons (parents and relatives) in order to afford each party, the opportunity to object and be heard (due process).
Current statute states that the mental health agency may initiate a petition for involuntary treatment but the same code should not confer unilateral discretion to dismiss a petition. Once the health agency submits a petition, it has exercised that discretion. It cannot invoke and then divest the court of jurisdiction unilaterally. Drawing from Welf & I C § 350, (c) at any hearing where the mental health department has not carried its burden of proof required to dismiss a petition, additional parties “may proffer additional evidence without first having reserved that right” before any order is finalized. The mental health court’s refusal to permit other parties to present evidence shall be deemed inconsistent with the directives of the Welf & I C which is to provide treatment of the patient and protection to the public; ie to fully protect the best interests of the patient. The court shall view the legislative scheme as affording other parties a degree of additional latitude in presenting additional pertinent information to the court so as to assure the most appropriate treatment decision for the patient.
Other parties such as DRC may allege that additional parties will "step into the shoes" of the mental health agency is a misplaced. By presenting allowing additional evidence, other parties do not become “the prosecutor”. They would simply be ensuring the court has considered all relevant and important evidence that may not make it into the record otherwise. If there is a clear credibility contest, the court may set a live evidentiary hearing to resolve that conflict.
There needs to be an additional change to Welf & I C which would permit other parties and their counsel to present evidence and engage in other appropriate acts of representation.
Case Plan Defined and Reasonable Services Contest
Neither difficulty in providing services nor county funding should excuse the requirement that the mental health agency/court must make a good faith effort to provide reasonable services and a case plan tailored to the patient’s mental health needs and circumstances. Drawing from Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.
The legislature for CARE/AOT court shall be written to include language that dictates that a mental health case plan will be the “foundation and central unifying tool in mental health services”. This case plan shall be intended to ensure the stability and safety of the patient, ensure compliance with treatment providers in providing continuity and appropriate services, facilitate the patient’s safe and long lasting stable return to independent living, and ensure the safety of the public. A written case plan is to be completed, considering the recommendations of the mental health team, within x days of court ordered involuntary treatment.
To ensure the patient’s rights are protected, their counsel should have a great deal of input into what services are appropriate and necessary and the court may not order the patient to engage with services until the patient has had a chance to discuss their rights and inputs into the case plan (notice and an opportunity to be heard) with their lawyer and this advisement is made on the record and judicially noticed.
For purposes of county resources and limited time, patient objections to any component of the case plan must be made at the trial level and within a set time limit (res judicata will be invoked In re Matthew C., 6 Cal. 4th 386, 862 P.2d 765 (1993). Otherwise objections shall be considered waived for appellate purposes.
Because this occurs frequently in mental health cases where the MH agency is unable to complete paperwork or forgets to enroll the patient in a program, the statute should mandate that a mental health caseworker must accurately inform patient of their MH case plan requirements and maintain contact to ensure services are provided consistently and check for any issues. The MH agency cannot use its own failure to ensure that patient is enrolled in correct programs as reason to terminate involuntary treatment services.
Clarifying the Court’s Obligation to Release to Community or Order Involuntary Treatment
After reviewing the doctor’s report and any other evidence proffered, the mental health court must order the patient released to community unless the court finds by evidence that:
Any of the following may apply (written in the disjunctive meaning that each clause does not take precedent over the other)
Lowered Evidentiary Requirements given the Nature of CARE/AOT Court Hearings
DRC and other organizations will give lots of pushback for lowering evidentiary requirements. They may cite to People v. Blackburn (2015) 61 Cal.4th 1113, 191 Cal.Rptr.3d 458, 354 P.3d 268; People v. Tran (2015) 61 Cal.4th 1160, 191 Cal.Rptr.3d 251, 354 P.3d 148 to show that mental health defendants are similarly situated with criminal defendants as LPS Conservatees can due to the possibility of renewable extensions undergo “an unbroken and indefinite period of state-sanctioned confinement” authorized by Welf & I C §§ 5352.1, 5361. Roulet, supra, 23 Cal.3d at p. 224.
In fighting this, parents could cite that due process in a civil proceeding “is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings” [Citation] This is because criminal defendants and mental health defendants are not similarly situated as per Penal Code, criminal defendants face punishment whereas mental health defendants are in court for the purposes of treatment and stabilization. J.H. v. Superior Court (2018) 20 Cal.App.5th 530.
Again it is very hard to override stare decisis and counsel would need to show that overturning stare decisis should be overruled when (1) there is high "workability" of new (legal) precedent, (2) changes to current precedent are very well-reasoned, (3) the current laws are outdated, and (4) the very high liberty/public interests at stake demand the change.
There would need to be amicus curiae for showing the workability of the new lowered precedent (research, scientific literature, etc), why these new changes are well reasoned (better tx outcomes), why the current LPS /MH laws are not working, and reasons why mentally ill gravely disabled patients with anosognosia should be considered similarly situated with dependent minors in need of the state’s protection (cant take care of basic needs due to MI).
Due Process Redefined for Mental Health
Since a lot of pro treatment advocates are opining that DRC and other advocacy groups are pushing too hard for due process rights for LPS Conservatees/mental health consumers, perhaps a redefining of due process rights within blended dependency/LPS framework would better benefit consumers.
The mental health court shall consider a due process violation exists when (1) there is a fundamental undermining of the statutory protections of the patient and (2) not just trial error but abrogation of the statutory right. But due process in the mental health context for sake of the patient’s best interest standard shall not comport completely with criminal due process protections. Rather, all that should be required is that the procedures adopt and comport with fundamental principles of fairness and decency.
This would extend to not applying Sanchez to mental health proceedings or full 6th amendment rights to confrontation (unavailable witnesses).
It shall due to the special nature of mental health proceedings in that it is a closed universe. Welfare and Institutions Code shall be the leading authority and contained within the Welf & I C shall be the evidence code applicable to MH proceedings. Like dependency proceedings to a certain extent there are other parts of California law may dovetail within it but since we are dealing with severely decompensated patients who are unable to care for their own basic needs so the evidence rules should be construed to allow as much information in as possible so the court can make the best decision on behalf of these patients.
So going back to the right to confrontation... should they have a right? Yes of course. Should they have it the same way criminal defense lawyers have it? Perhaps they shouldn’t. Mental health law is a completely separate area of law and should permit special rules.
Changed Circumstance Hearings
This may be controversial but because mental health services are limited in funding, the court may deny a patient’s petition for dismissal if the patient fails to make a prima facie showing that there are changed circumstances that support a change in previous orders or closing the case.
However, to preserve (?) the patient’s rights, the petition alleging changed circumstances shall be liberally construed to afford the patient the greatest chance to challenge the sufficiency of the evidence. To uphold the import of the CARE/AOT/LPS act, the mental health court in considering the sufficiency of the evidence and totality of the circumstances may rely on declarations to substitute for evidence or allegations missing in the pleading. [citation]
To act in the patient’s best interest, the court must see that the evidence proffered demonstrates changed circumstances not changing circumstances. A court order closing a CARE case based only on evidence showing merely changing circumstances would be disastrous as it failed consider the recent psychiatric decompensation, repeated failed efforts to remain compliant, and other factors which had brought the patient within the jurisdiction of the mental health court. If the patient is prematurely discharged and rapidly decompensates again, the court order did not promote stability for the patient or act in the patient’s best interests and by extension adhere to the overruling scheme of the mental health/LPS act.
Again, we must be reminded that (1) the overarching goal of mental health proceedings is to safeguard the welfare of the most severely mentally ill gravely disabled patients and (2) that purpose of any mental health hearing is to determine and protect the patient’s best interests. This shall not be limited to just the initial hearing setting the involuntary treatment order. Drawn from In re Clara B. (1993) 20 Cal.App.4th 988, 999. Citing in part from In re Kimberly F. (1997) 56 Cal.App.4th 519, 529
“It is not enough for a patient to show just a genuine change of circumstances under relevant statute. The patient must show that a change in the prior order or closing of the case would be serve their best interests [of long term stabilization and return to the community]”.
This last part will address a contention raised by critiques of CARE court.
“If a participant cannot successfully complete a Care Plan, the individual may be referred by the Court for a conservatorship, consistent with current law”.
Given current LPS Conservatorship statutes an LPS Conservatorship may only be initiated during an involuntary hold at an LPS designated facility. As everyone knows a 5150 hold is hard enough to get for a loved one let alone a 5250. So I’d propose integrating aspects of the housing conservatorship and Bypass provisions in dependency.
Bypass Provisions for Mental Health
Citing to both federal and state law, when there are special circumstances where “the rule favoring treatment services is overruled by a legislative assumption that offering services would be an unwise use of governmental resources” (due to patient’s long history of noncompliance, severity of illness, and lack of insight) bypass of outpatient services may be recommended. Drawing from Welf. & Inst. Code, § 361.5(b)(1)–(15);
If we were to bypass services akin to Welf & I C § 361.5(b)(1), at the initial CARE/AOT court hearing the health department would need to make a showing by clear and convincing evidence that the patient suffers from a severe mental illness that renders him incapable of utilizing CARE/AOT services. These services may be denied to a patient who is currently gravely disabled as a result of their mental disability and if competent evidence from mental health professionals establishes that the patient is unlikely to with services provided, to be able to adequately care for his or her own basic needs as described under Welf & I C § 5008 (h), the CARE court may bypass and move to establish LPS Conservatorship. Given the restrictive nature of normal LPS Conservatorships, we’d be looking at something akin to a housing conservatorship.
Juvenile Dependency and