QUICK THOUGHTS ON DEFINITION OF GD
The quote[s] I'd like to focus on:
The LPS Act was a way to protect clients' rights to say you could only be detained in a psychiatric hospital under three conditions: you are a danger to yourself, a danger to others, or gravely disabled. When they created the act, they didn't have the issue with homelessness that is in place now.
… “intensive outreach and try to convince them to come to get help, they're not willing to do it because in their head they are so psychotic or delusional”.
“The current definition of gravely disabled, according to him, prevents more of these lives from being saved”.
I agree that homeless is a large issue but first we need to tackle the issue of getting more people into treatment so that they don’t end up on the streets. For the most severely ill with no insight, housing will make too little of a difference. If a psychotic person believes that their food or water is poisoned, they will move or flee from their assisted housing. If they believe that the government is out to hurt them or “rob” them of their benefits via programs, they will flee and go into hiding. I’ve been on the streets long enough to know friends and others that this is common among the most severely ill persons. Take a “famous” person Nathan Ayers who was offered housing and programs and refused them as he preferred to be on the streets and feared that others were out to get him and that these “housing” safety nets were not safe. It took involuntary treatment and a conservatorship to get him compliant and stable with treatment. These indicate that the problem is with the defining laws of the LPS system.
If you want more people to get treatment via proving grave disability, we need to change the definition of GD. According to colleagues who I know they say that is one of the biggest barriers to treatment right now.
The main issue with this is we would have to overcome stare decisis which has decided that the statutory definition is not unconstitutionally vague or overbroad. Conservatorship of Chambers (1977) 71 CA3d 277; Doe v Gallinot (CD Cal 1979) 486 F Supp 983, 991
To overcome this, we either need a new senate bill or an appeal that shows that the statute in question is so vague that any person of common intelligence must guess at its meaning and to its application. This “guessing” violates the first essential of due process of law”. Connally v. General Const. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S.Ct. 126. At this point in 2022 many mental health professionals will contend that GD as it’s presently defined, is so vague and unclear that many counties end up implementing it differently.
Personally, I’d like to direct everyone to look at all of the case law we have surrounding GD:
Conservatorship of Guerrero (1999) 69 CA4th 442
Conservatorship of Walker (1989) 206 CA3d 1572.
Conservatorship of Benvenuto (1986) 180 CA3d 1030
Conservatorship of Murphy (1982) 134 CA3d 15
Conservatorship of Carol K. (2010) 188 CA4th 123
Conservatorship of Jesse G. (2016) 248 CA4th 453.
Conservatorship of Early (1983) 35 C3d 244
Conservatorship of Neal (1987) 190 CA3d 685
Based on these I'd like to say that all of these cases and more, indicate that we need a new redrafting of GD definition and codify it so its uniform for all counties as AB 2853 intends to do.
By codifying GD to include other criteria such as anosognosia, inability or unwillingness to accept third party assistance, the issue of not being able to enforce treatment because of conflicting case law or lack of horizontal stare decisis may be bypassed and more people treated. However, in my opinion we would then need training for hospital clinicians, CLEs for lawyers, and other trainings for MH professionals so that they learn that these criteria are no longer optional when assessing someone for GD.
However, without a bill or case law that disproves or abrogates Conservatorship of Roulet(1979) 23 C3d 219, we shall still have issues with overcoming the very high burden of proof beyond a reasonable doubt needed for LPS Conservatorship. And there is a high chance that the public guardian may be unwilling to file for LPS Conservatorship as they believe that the evidence before them is not enough to over that standard of proof despite all the evidence “parents and caregivers” may present before them.
Leave a Reply.
Juvenile Dependency and