“This story says it all. Left-of-center lawmakers who block efforts to rescue the SMI of the world, in the name of protecting "rights," are the mirror image of thoughts-n-prayers conservatives who block any effort to stem the carnage of gun violence”
takes treatment advocates to task for allegedly abandoning patient’s due process rights in favor of a purportedly overly vague, discriminatory, and invasive standard. However, as the preponderance of evidence standard set forth under Welf. & Inst. Code, § 5150 [subdiv] indicates, CA has always recognized the inherent limits on the detention powers. NAMI and DRC’s unfounded claim cites that expanded criteria is without judicially enforceable boundaries and disregard the patient’s rights recognized in (People v. Triplett (1983) 144 Cal.App.3d 283); as NAMI cites these expanded provisions will effectually obliterate the distinction between treating seriously decompensated gravely disabled mental illness and lesser degrees of mental illness. Their contention that these expanded provisions irrationally strike at the very nature of being homeless or indigent, is without merit, given that mental health laws in practice generally shy away from involuntary detention, relying on any shred of evidence of the patient’s ability to care for his or her trifecta of needs per Welf. & Inst. Code, § 5008 et seq. The mere fact that the LPS Act does permit a finding of grave disability, in part on said patient’s ability to find any form of shelter, is not constitutionally violative.
So lets dissect what NAMI’s official statement and see how as legal advocates we can fight this:
From the outset, NAMI asserts that “However, the Administration’s expanded use of Kendra’s Law or AOT to people with SMI who “cannot meet their basic needs” is beyond problematic”. This indicates that NAMI will not go further to defend AOT/CARE court or expanding the GD definition. NAMI further doubles down and states that “Instead of using the least restrictive approach, we are defaulting to an extreme that takes away basic human rights. We need to meet people where they are, not forcibly remove them. The City has the power to provide onsite treatment, as well as treatment in homeless shelters or supported housing, but has chosen not to”.
These statements clearly reflect that NAMI considers that pursuing NY’s new law/AOT/ CARE would be akin to “stepping into the shoes” of the [mental health department] to prosecute involuntary treatment petitions. NAMI through more rigorous advocacy and increased legal presence (through serving as amici) would not suddenly become “the prosecutor”. Rather, by providing mental health education and advocacy services to families involved in mental health proceeding, NAMI ensures they and by extension patients fully know the extent of mental health laws and have all the relevant and important evidence that may not make it into the record otherwise. Furthermore, endorsing CARE/AOT would not signal to the public that NAMI is asking that CA implement reductionist aggregating categorical standards that reduces all mentally ill patients into one uniform category destined for involuntary detention no matter what; rather, NAMI would explain that it understands that within CA’s current mental health legal authority, case law has upheld that a grave disability finding is not a rubber stamp decision; it requires a multitude of factors such as serious decompensation, history of illness, third party assistance, noncompliance, and anosognosia. (Conservatorship of Guerrero (1999) 69 Cal.App.4th 442, 444)
In contrast with DRC’s and NAMI’s assertions, most treatment advocates aver that Welf. & Inst. Code, § 5008 et seq. definition of grave disability is still far too narrow a definition and its burden of proof too great to often overcome (controverting Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 279) This assertion is supported by numerous findings regarding the serious impact that “non-treatment” carries on patients, families, and the public [citation].
Simply because the most vocal voices opine that CARE/AOT substantially impacts civil liberties does not necessarily make it so. In these cases, NAMI’s and DRC’s claims are substantially weakened by the fact that they rely so heavily on a simplified claim of “easy” involuntary commitment standards that actual case law disproves (Conservatorship of Roulet (1978) 20 Cal.3d 653) and medical professionals disagree as they cite a high burden of proof for involuntary commitment makes detainment and treatment unworkable.
“As a peer-led, peer-run organization, we know that peer-led non-police response to mental health crisis, such as CCIT-NYC model can be effective”.
Despite the seemingly inherent conflict in having NAMI take a position contrary to the patient’s intentions to avoid involuntary treatment or LPS Conservatorship, the Legislature has expressly provided that the import* of the LPS Act determines the legal outcome; not just the patient and their wishes.
*(To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, developmentally disabled persons and persons impaired by chronic alcoholism, and to eliminate legal disabilities; To provide prompt evaluation and treatment of persons with serious mental disorders or impaired by chronic alcoholism; To guarantee and protect public safety)
Because of this, NAMI’s advocacy for treatment should not be viewed as an onslaught on patient rights, but rather a positive sign that they are not simply “acting as a mouthpiece” for the patient in advocating for a liberalized position evidenced to endanger patient outcomes.
NAMI states that “We need to pass the Treatment Not Jail Act to help people with SMI get health care, not experience involvement with the criminal legal system”. However, their concern like DRC’s is again misplaced as “nothing in the legislative history of the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) suggests that the Legislature intended wholesale incorporation of criminal procedure… into civil mental health commitment proceedings”. (Conservatorship of Bones (1987) 189 Cal.App.3d 1010, 1013). There are two points of contention here that NAMI raises but treatment advocates reject; one, that “LPS/MH proceedings are criminal and punitive in nature” and two, “that treatment advocates in fighting for broader criteria are in effect arguing for increased involvement with the criminal justice system”.
The theme of NAMI's press statement additionally highlights how NAMI wrongly conflates involuntary treatment and conservatorships with providing more power to the carceral state. Yes "pro" treatment advocates do acknowledge how the carceral state intimates its power into our state’s civil (mental health) and penal systems and how its effects extend far beyond the period of detention and exacerbate social inequalities post release, trapping the poor and people of marginalized demographics. We do understand that part of the work is to educate the police in working with the mentally ill and working with prosecutors to better understand SMI, but treatment advocates are very much pushing for CA's separate trained mental health diversion team that is less "aggressive" and punitive than untrained police currently are. We again state that the goal of treatment is not punishment nor decreased outcome of life post discharge citing id. Advocates emphasize how without treatment those like Linda Rippee / Catherine J Rippee-Hanson 's brother Mark become a victim of the carceral state and either spend years behind bars languishing or die due to neglect; a very intended outcome woven into the design of the carceral state. Pro treatment advocates would most likely cosign me on this, on saying that pro treatment advocates truly have the best interests of the mentally ill in mind and that via early diversion programs (CARE/AOT)/ conservatorship/ or drug tx we are advocating for a truly decreased carceral response (PERT, police, or PC § 1367 diversion) to mental health inequities thus (with better funding) improving the outcome for the SMI.
If we want to be the best advocates we can be, we need to understand the foundation of their objections’ and what legal authority we [treatment advocate legal groups] can rely on in defending and expanding involuntary treatment criteria. Ill provide an example of a recent CA supreme court opinion where rights for patients increased. Disability Rights CA has an ongoing presence in filing amicus briefs and “taking a stand” whenever key issues arise relating to LPS conservatee’s rights. It is their amicus brief in the (Conservatorship of E.B. (2020) 45 Cal.App.5th 986, 988) case that raised the specific point of how “San Francisco Found That More Than One-Third of LPS Conservatorships Last More Than A Decade” and “60% of the people conserved under the LPS Act in San Francisco were conserved for five years or more” which affirmed the sentiment expressed in (Conservatorship of Roulet (1978) 20 Cal.3d 653): “In effect, these statutes assure in many cases an unbroken and indefinite period of state-sanctioned confinement”. This amicus brief may have been fatal to Conservatorship of E.B. and thus resulted in further expansion of LPS conservatee’s rights in trials. These points that DRC et al raise may seem nominal but many times have shaped important [treatment] legal authority, changing laws to be less amiable toward "common sense" treatment. Judges can see DRC making these seemingly “cogent” legal arguments, but I have yet to see NAMI on the forefronts of defending involuntary treatment laws. Rather, I am sure many here have seen them decry the increasingly hard to win legal battles for LPS Conservatorship/treatment and write statements about the SMI crisis, but I have yet to see good amicus briefs come from them. Yes, their LPS Conservatorship class is helpful but there is still more they can do to teach (like how to fight the Welf & I C § 5354 (a) clause about suitable alternatives to involuntary tx via statutory (word) analysis. And everyone here in CA knows this is a large problem; as it was even mentioned in a federal case “The PG denied the referral for LPS on the basis that “there is no evidence beyond a reasonable doubt that conservatee has exhausted all the alternatives to LPS”. United States v. Arnette (2022).
As already address, NAMI through more open and rigorous advocacy/ increased legal presence through serving as amici would not suddenly become “the prosecutor”. They would simply be ensuring caregivers have all the tools to ensure that the LPS court has all relevant and important evidence that may not make it into the record otherwise. Some people express concern that NAMI, by teaching caretakers how to pursue a more aggressive approach to defending mental health clients, would be “stepping into the shoes” of the Public Guardian to prosecute involuntary treatment petition and in turn be another unwanted arm of the carceral state. The LPS legislature did not intend the wholesale incorporation of criminal procedure into these special commitment proceedings; it implies that orders upholding treatment plans in the best interest of the patient, not a patient’s due process “wishes”, ought to determine the outcome of a case. Because of this NAMI would be further perpetuating its goal of “dedication to building better lives for the millions of American affected by mental illness”. The LPS act already adequately safeguards the patient’s rights (high burden of proof required, unanimous jury verdict, fifth amendment right, and hearsay provisions under (People v. Sanchez, 63 Cal. 4th 665, 374 P.3d 320) so increased treatment advocacy from NAMI would not be fatal to their cause as supportive [to] mental illness grassroots organization
So everyone has been having problems with the PG pushing for failed placement on the streets or the shelter before they will pursue full LPS Conservatorship. However, no where in the law does it state that one needs to fail placement in the streets or shelter first before LPS can be initiated (given that the patient is currently gravely disabled).
Homelessness or shelter placement is not a suitable alternative to continued detention (or LPS Conservatorship). Welf & I C § 5354 subdiv (a) dictates that “the officer providing conservatorship investigation shall investigate all available alternatives to conservatorship and shall recommend conservatorship to the court only if no suitable alternatives are available”. If the Public Guardian recommends against LPS Conservatorship, they must set forth all alternatives available in their report. The operative word “suitable” shall be the center point of this argument. The plain and ordinary meaning of suitable is the “right or appropriate [choice] for a particular person, purpose, or situation”. When determining the statutory language of the Welfare and Institutions Code, we start with the statute's words, and rely on the ordinary meanings as a reliable indicator of the legislative intent. If the words themselves are not ambiguous, we shall presume the legislature meant what it said, and the statute's plain meaning governs. If there may be confusion, we shall look to the legislative history consider the consequences of alternative interpretations, and whether its comports with public policy. The LPS Act under Welf. & Inst. Code, § 5001 et seq establishes that the “legislative intent” shall be to
(a) end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders … and chronic alcoholism, and to eliminate legal disabilities.
(b) provide prompt evaluation and treatment of persons with mental health disorders
(c) To guarantee and protect public safety.
(d) To safeguard individual rights through judicial review.
(e) To provide individualized treatment, supervision, and placement services by a conservatorship program for gravely disabled persons
(i) To provide services in the least restrictive setting appropriate to the needs of each person.
By interpreting discharge to a shelter or the streets, the hospital and doctor shall be ignoring the directives of the Welfare and Institutions Code listed ante. Almost all shelters lack empty beds, have limited treatment programmes, have frequent “fights” and combative clients. None of these are conducive to treatment or stability. Thus we argue that discharge to a “non-suitable” dangerous option; the streets or an already “full” shelter shall be an abuse of the Public Guardian’s discretion.
Juvenile Dependency and