All of us as San Franciscans have witnessed people in severe psychiatric crisis on our streets. For most of us, it just feels wrong, and we wonder if that is really necessary. It is not, and there are true solutions to the crisis. One intervention being considered is SB 1045. Senator Scott Wiener, with support from Mayor London Breed and Supervisor Rafael Mandelman passed a law in Sacramento that is a five-year, three-county pilot that would add a new form of detaining people with mental illnesses and removing their civil liberties. While there is much talk of this in the media, there is also a great deal of confusion about how this law will work and even what a conservatorship is. Many of us have heard from these policy makers why this new law is a good idea. However, the mental health consumer and homeless community are opposing it because of serious problems with the proposed law, and it is important to understand why. In order to understand this, we outlined how we got here, what the current system looks like and how it would change.
San Francisco’s Mental Health Legacy
San Francisco has a wretched history when it comes to how our local government treats people with disabilities. During the 19th century, San Francisco was the first city in the nation to pass an “ugly law,” banning people deemed “diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person” from public spaces. The city also participated in the practice of indefinite institutionalization without due process that was occurring around the state. State hospitals were notorious for abuse, and there were many documented incidents of people spending years in those places, without any way to get out. San Francisco did have some bright spots however, we had a flourishing community mental health system in the early 1970s with plenty of family run board and care facilities in our many Victorians. However in the following decades we lost over 2,000 beds as the properties were sold off.
Our current California conservatorship laws grew out of the mental health consumer movement in the 1970s. Mental health consumers rose up against abuses and fought back. State hospitals were closed down and protections were put in place for people with mental health disabilities. Current mental health conservatorship laws were developed with extensive input from mental health consumers.
The current law is called the Lanterman-Petris-Short Act (LPS), its drafters attempted a carefully constructed balance between civil liberties and public safety. The current law may not be perfect, however, most problems with the law arise out of practical implementation issues rather than the law itself. For example, many people find the process incredibly traumatizing, and frequently it does not lead to needed housing and ongoing services. Others criticize it for being too restrictive, denying state intervention in cases where it is needed. Most of the latter complaints come from family members who are worried about their loved ones and see hospitalization as the last resort.
Current Mental Health System in San Francisco – A system reliant on Hospitalizations
While there has been a history of both divestment and underinvestment in mental health care, the most recent hit to the mental health and substance abuse system in SF happened in the great recession. Between 2007 and 2012, $40 million in city funds were cut from direct mental health and substance abuse services in San Francisco.. These reductions hit every level of care, from a dramatic reduction in hospital beds to closures of outpatient and day treatment programs. Even before those cuts occurred, the San Francisco mental health system was widely considered overly reliant on “high end” services in the most restrictive settings. Instead of offering voluntary care in the community, the system waits until folks are completely decompensated, and then they are brought to either a locked hospital ward, or are brought to jail. For many, their first experience with care comes only after a ride in the back of a police car in handcuffs. This level of service is considered the most ineffective, inhumane and expensive level of care.
Conservatorship law currently states that an individual must be a harm to self or others, or gravely disabled. The term “gravely disabled” means that a person is presently unable to provide for his or her basic needs for food, clothing, or shelter because of a mental disorder/impairment by chronic alcoholism. Juries may consider that the person will not take medication without supervision and that a mental disorder makes them unable to provide for their basic needs without such medication. They can look at evidence that they did not take prescribed medication in the past, or that they lack insight into their own mental condition.
Here are the steps in current law:
- Step 1: Police (typically) respond to call of someone in psychiatric crisis
- Step 2: Police (typically) handcuff and transport individual to psychiatric emergency services (PES)
- Step 3: PES evaluates individual to see if they meet criteria. Evaluation by psychiatrist must happen within 24 hours
- Step 4: PES can hold the individual if they determine they continue to meet criteria for up to 72 hours. In order to move people more quickly through PES, San Francisco does not offer beds, but chairs to sit in.
- Step 5: If the person refuses treatment, they may mandate a 14 day additional hold. The person has a right to a hearing first.
- Step 6: File for conservatorship. At this point, the psychiatrist in PES believes the individual should be held longer has referred the person over to the Conservator’s office. Conservator reviews the case and then sends it to court for final determination. The person can be held without conservatorship determination for a maximum of 47 days.
- Step 7: Courts determine individual should be conserved. The person’s civil liberties removed and care is transferred to state. The person can be conserved in a locked or alternative facility or housing for up to one year, with ability to extend with court approval.
In the fiscal year 2016-2017 there were 6,704 cases of individuals brought to Psychiatric Emergency Services – a locked ward where people are typically brought by police. Of these patients, 4,666 were homeless. Almost 40 percent left without any follow up services at all – released back to streets without care, due to low capacity in the system. Because of extreme competition for voluntary beds in the community, the city assigns community residential treatment beds to those who have racked up the most in costs at SFGH, and they don’t even bother with wait lists or with tracking those turned away. In terms of ongoing care, that is typically through intensive case management, where a case manager has a small caseload and spends a lot of time with each client. The need for intensive case management exceeds capacity by 2:1. Of course, the lack of housing greatly exacerbates mental illnesses – episodes are more frequent, longer and more debilitating. Lack of housing makes recovery almost impossible. If the person is lucky enough to get residential treatment, they are frequently discharged back to the streets after a time limited stay.
SB 1045 – How this proposed new law would work
Unlike the Lanterman-Petris-Short Act (LPS), the new SB-1045 was developed without input from mental health consumers. The Board of Supervisors are currently considering implementing this law, which requires their approval and will go to hearing sometime in January. What it would do is change the eligibility for who gets conserved, or who gets their civil liberties removed and given to the state. It changes the language for who gets an appointment of a conservator to “a person who is incapable of caring for their own health and well-being due to severe mental illness and substance abuse disorders” which is a much broader standard than “gravely disabled” or “harm to self or others”, and specifically adds addiction wording. Although the bill does require the most clinically appropriate placement including behavioral health treatment, supportive housing and wrap-around services for people who meet certain criteria, it fails to allocate any state money for services or housing. Because of this, SB 1045 does not address the systemic lack of community based care that lead to people’s mental health deteriorating so severely in the first place.
There are some things in this new form of conservatorship that are close to the same as LPS law. Similar to existing law, a petition must be filed with the superior court to conduct an investigation and the Conservator must make a recommendation for conservatorship. They must also make a determination that the person’s needed services are available. The individual does have access to due process and is assigned a public defender. However, there are critical differences in who is eligible for the loss of liberties. The criteria for this new conservatorship or trauma detention under this bill are far broader. The way it works is if a person has had eight or more involuntary detentions for evaluation and treatment in past 12 months and the person is rejected for assisted outpatient treatment (Laura’s Law); and no other least restrictive alternatives exist, then they qualify for 1 one year trauma detention or conservatorship with court approval.
The eight or more detentions criteria is particularly troubling. It is important to remember that it is police that do that initial detention, called a “5150.” They bring people in handcuffs, and they decide who to bring in. They could easily detain someone who does not meet the criteria, either to harass the person or in response to a complaint, and then magically they will meet the criteria once they have been detained more than eight times. That puts a great deal of decision making power in police, who are not psychiatrists, and do not have professional training.
Even if the people in charge, are careful and only end up conserving 20 people as the Department of Public Health is promising or 100 as the Mayor is promising, it will potentially traumatize thousands more who are brought in repeatedly by police, lose their belongings in the process, and find themselves in worse shape. There is no capacity in the system, and this just increases the trauma of churning people through a system and wastes valuable resources without notable positive outcomes. The potential for abuse is staggering. The likelihood of this having a negative impact on mental health and further traumatizing people is definitive.
We believe this law should be rejected. The state needs to go back to the drawing table.
But that doesn’t mean we say do nothing. We have an alternative vision that is not fueled by political posturing. This vision will be funded by Prop. C, and eliminates the need for SB 1045 altogether:
- A peer and professional response to mental health issues that does not include police unless weapons are involved.
- A diverse and robust community system that meets the individual needs of people with behavioral health issues.
- A system where homeless people receive intensive care on the streets, and that care follows them through the system – from crisis, residential, into outpatient care and housing.
- A system that has the capacity to care for people when they need it, not one that waits until they are decompensated to get care.
- A system that does not enhance trauma by churning people from streets to programs to streets again, but instead a system that not only is trauma informed but addresses trauma in its very design.
Stay tuned! To get involved in the struggle against trauma detentions to fight for a decent mental health system go to our website and sign up for alerts or email jfriedenbach@cohsf.org
