non LPS facilities initiating 5150s

 
 
There has been some news about non LPS facilities initiating and detaining patients under 5150 holds. Given that each county does things differently this information mainly applies to San Diego.
 
If a person is admitted to a non-LPS facility for medical treatment (not psychiatric treatment), then that person is no longer on a §5150. The designated person who wrote the §5150 may want to document why the §5150 process was not completed. The non-LPS facility does not have the ability to detain the person for care. If a person has been placed on a §5150 and has been detained and transported to a non-LPS facility, is not admitted to that non-LPS facility, and is then subsequently transported to an LPS facility, the §5150 process has been completed.
 
 
While not of controlling importance, punctuation is part of a statute and should be considered in its interpretation. § 5150 is written to lay out two separate criterion for detainment and evaluation. The use of the word “or,” in a statute, is to designate separate, disjunctive categories disjunctive In re E.A., 24 Cal. App. 5th 648, 234 Cal. Rptr. 3d 346 (2018). Welf & I C § 5150 code is written in the disjunctive meaning that the clauses separated by an “or” do not take precedent over the other.
 
Now looking at the code which mandates that:
When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment… upon probable cause, take… the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services.
 
 
 
Some advocates may see this phrasing to say either or. The evaluating person may detain them into custody for assessment, evaluation, and crisis intervention or they placement in an LPS facility designated for treatment and evaluation.
 
If the statute is read in this manner no case law currently answers the question of what "custody" means. It is unclear whether § 5150 reflects a legislative intent to have a broad applications in regards to LPS vs non-LPS facilities. The statute may not necessarily mandate an LPS facility, but most counties require detainment at a designated facility.
 
To examine this problem further San Diego county’s policy regarding LPS facilities.
 
Designated Facility vs. Non Designated Facility
The designated person is required to place the person in custody “in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services.” Welfare and Institutions Code §5150(a). Such facilities are frequently referred to as “LPS designated facilities” or “LPS facilities.” If a person has been placed on a §5150 and has been detained and transported to a facility that is not LPS designated (a non-LPS facility), the §5150 process has not been completed. Individuals brought to a non-LPS facility on a §5150 should still be assessed and transferred to an appropriate facility, as necessary.
 
 
The other issue that arises out of detainment at non LPS facilities is the use of back to back 5150 holds. By statute patients are not afforded the right to court appointed counsel until their 14 day hold in which they may petition the court for writ of habeas corpus. The law does technically allow for a writ during the 72 hour detainment period, but due to time constraints it is never implemented. The purpose of a 14 day hold is to provide the patient with the right to due process (1) a right to notice and (2) a right to be heard. The patients must be afforded a hearing where they can challenge the sufficiency of the evidence mandating an involuntary hold. Without this safeguard under Doe v. Gallinot patients could be held for extended periods of time without judicial review.