Op-Ed

Liberty at Risk: Community Assistance, Recovery and Empowerment Act

By Steven Bruce, PWDF Legal Director

1. INTRODUCTION AND BACKGROUND

California Governor Gavin Newsom signed the Community Assistance, Recovery, and Empowerment Act (CARE Act) in an attempt to overhaul California’s mental health care system.  The Governor signed this new law on September 28, 2022.  This law targets individuals diagnosed with schizophrenia and other psychotic disorders and is an attempt to force homeless people to obtain psychiatric treatment.

Today, in many states, such as Florida and California, there is a long history of having due process rights so that an individual can be held in a psychiatric hospital for 72 hours at first and then can be extended for a longer period of time. In California, this is based on the Lanterman-Petris-Short Act (LPS) § 5150 & § 5250.  In the state of Florida, the Baker Act, Chapter 394 of the Florida Statutes, is the law that allows police, doctors, and family members to have someone committed involuntarily for 72 hours for a mental health examination. A hearing by a judicial officer is then held to determine if the individual must be released or may be detained for a longer period of time, specifically, if a police officer or doctor has reason to believe a person has a mental illness that requires an involuntary hold.  The following criteria apply to place an individual on an involuntary hold:

(1)  The person’s refusal of voluntary examination.

(2)  They are unable to determine for themselves whether the examination is necessary.

(3)  General refusal of care would result in neglect and substantial harm to their well-being without treatment. This considerable likelihood could cause serious bodily injury to themselves or others, as evidenced by their recent behaviors.

In California, § 5150 of the Welfare and Institutions Code allows an adult experiencing a mental health crisis to be placed on a 72-hour psychiatric hospitalization to determine if they are a danger to themself or others or gravely disabled. The term “gravely disabled” is meant for stabilization to be obtained, where the individual meets with a mental health professional, including a psychiatrist.

The conditions for a Baker Act in Florida and LPS Act (§ 5150) in California are similar, requiring a specific person to take the patient to a hospital.  The individual transporting the patient is usually a licensed social worker, police officer, or medical professional for hospitalization in a psychiatric ward for observation. In California, if the individual is determined at the end of their 72-hour hold that they are a danger to themselves or others or are gravely disabled, they can be deprived of their liberty for 14 days. In the case of minors, the terms for confinement are similar, and post-discharge planning is completed.

The term “gravely disabled” has greatly concerned many people and is not a criterion in most states.  Most states have the other two criteria: the individual is a danger to themselves or others as a requirement for hospitalization.  Gravely disabled individuals may have plausible reasons for not taking psychotropic medication, and there is more room for dispute in the “gravely disabled” criteria in California that is applied for violating individuals’ due process rights in depriving them of their liberty. In Florida and California, just like the state can petition for a longer period of time, the patient can petition for immediate release.

In Florida, the petition for the Writ of Habeas Corpus and the immediate release of the individual is demanded before a circuit (state) judge.  In Florida, under the Baker Act, the patient has the right to refuse medication; however, the refusal of medication is used as evidence that the individual is non-compliant and should be held longer.  Within 72 hours, the facility must make one of three decisions:

(1) Ask the patient to admit voluntarily,

(2) Release the person, or

(3) Petition the court to admit the patient for a longer period of mental health treatment.

In Florida, the facility can obtain an additional five days before they hold a hearing in front of a judge or magistrate.  This is an adversarial process between the state and the patient and is usually held at the hospital.  Each individual is entitled to a lawyer or a public defender at the hearing as opposed to the initial 72 hours of confinement.  The criteria for further involuntary placement are the same as for the initial 72-hour hold under the Baker Act: (1) whether they are a harm to themselves or (2) a danger to others. The third criterion is that the placement must be in the least restrictive environment (LRE), allowing for the person’s improvement.  If a petition is granted, a patient can stay as long as 90 days or six months in extreme circumstances.

It should be pointed out the LRE comes from Title II of the Americans with Disabilities Act (ADA) of 1990.  The criteria for applying the LRE was outlined in the Supreme Court case of Olmstead v. LC, et al. 527 U.S. 581 (1999).  That court stated that the State of Georgia violated Title II of the ADA by not offering lesser restricted community environments in the case; however, the Supreme Court opinion added what they considered to be reasonable defenses, including the availability of community settings and how many people were waiting for the community settings. The two women in the Olmstead case had been confined in an institutional setting for several years. In writing for the majority, Justice Ginsburg outlined a set of defenses that apply to all 50 states. Once this case was decided, all 50 states were out of compliance.  Psychiatric patients were not being treated in the least restrictive environment and needed to be transitioned to a legally required placement.

2. ANALYSIS

Gavin Newsom, Governor of California, has gone too far in mandating the CARE Act, which provides that individuals who do not have permanent housing could be forced into psychiatric facilities. As stated in a San Francisco PBS/KQED article, there will be an adverse impact on certain populations, such as Black residents, who are more likely to be homeless than whites per capita and, therefore, are at greater risk of losing their liberty. (“Newsom signs ‘Care Court’ Plan…”[1])  This new law has not been sorted out in terms of the training and the start-up costs that will have to be provided for the participants of this new statute so that its underlying intent is realized. It, at least initially, will put California out of compliance with Olmstead.

The CARE Act allows family members and first responders to petition a court to approve a treatment plan. Governor Newsom states he is not interested in the status quo, which presumably includes the due process rights required for involuntary treatment. Moreover, family members’ interests are not always consistent with what is best for the individual who is forced into “treatment,” which has been said to work 25% of the time, not make a difference 50%, and to cause an individual to be worse 25%. Some studies say the number of people becoming worse is 15%. (Citations omitted.[2])

There is no empirical evidence that involuntary treatment is more beneficial than voluntary treatment or no treatment. Although the KQED article states that a judge will design a treatment plan, this would on its face appear to be false as judges are not psychiatrists, let alone doctors who know the “patient;” a court presides over an adversarial process.  A public defender or advocate may be appointed to represent a homeless person, but a government official represents the other side in court. It is not far-fetched to believe the government’s prosecutor would often want the homeless victim to be put away for as long as possible so as not to be back on the street.

The KQED article points out that this new law does not “…provide the necessary health and housing resources,” quoting sources that “We are tens of thousands of beds short in the Bay Area of the permanent housing we need. … And we are woefully short on voluntary treatment programs.”

Per the article “…Continued refusal could be used as a justification for conservatorship, where people could be forced into care against their will,” thus a serious violation of Constitutional due process.

[1] Erin Baldassari, Newsom Signs ‘CARE Court’ Plan, Overhauling Mental Health Care in California, Sept. 14, 2022, updated “Weds.”

[2] There is a myriad of studies which include different factors and, therefore, are in conflict with each other.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.