by Alex V Barnard
When it was passed in 1967, California’s Lanterman-Petris-Short (LPS) Act—which sets the legal requirements for involuntary commitments to psychiatric hospitals—was hailed as the “Magna Carta of the mentally ill.” The new rights and legal protections it created helped make California a leader in the de-institutionalization of people living with mental illnesses. Now, the state is considering swinging the pendulum back towards custodial care. It should not turn back the clock lightly.
If “5150s”—the 72-hour holds that police or medical professionals can use to obligate someone deemed a risk to themselves or others to go to an emergency room for evaluation—have entered the popular lexicon, the proposed change concerns a much less know provision of LPS, “conservatorships.” Currently, if someone is hospitalized for a 72-hour 5150 and then a 14-day 5250, but remains unstable, an inpatient doctor can petition the court to allow them to keep a person longer. A court then determines whether the person is “gravely disabled”, that is, unable to meet their needs for food, clothing, or shelter.
According to state data, less than 2% of 5150s turn into conservatorships—for good reason. Once a conservator—usually a social worker in the county Department of Behavioral Health or Adult Services—is appointed, the conservator is able to determine where a person lives, to consent to have that person medicated, and to choose how their income (usually a social security check) gets spent. Most people under conservatorship are at least initially placed in locked facility.
You would think that such a serious restriction of someone’s civil rights would be sharply scrutinized, but conservatorship has been a largely invisible part of the state’s mental health system. That is, until Senator Scott Wiener introduced SB 1045. The bill, signed by Governor Brown in October, would allow San Francisco, Los Angeles, and San Diego to broaden the criteria of conservatorship to include homeless individuals with co-occurring substance abuse and mental disorders and who use a high volume of emergency services, as marked by eight 5150s in the last year.
Wiener heralded the bill as a means of “getting people off our streets and into housing and services that will help them get healthy.” It’s not clear why Wiener is confident that expanding conservatorship will help people “get healthy”, because the state collects no data on who goes into conservatorship or what the outcomes are. What I have learned as part of a research project interviewing conservators around the state is that most think that conservatorship is an extreme measure that should be reserved for the sickest of the sick, which is why many are concerned about the idea of expanding it.
In fact, SB 1045 seems to be, on many levels, mis-diagnosing the problem. The number of people conserved in California has fallen by two-thirds since the 1990s. The reason is not renegade civil rights lawyers or judges applying the standard of “grave disability” so strictly as to leave people dying in the street. Rather, conservatorship faces the same problem as everything else in our mental health system: insufficient funds. As hospital beds and supervised Board and Care facilities around the state have closed, counties have run out of places to put conserved clients. SB 1045 comes with no new funds for services, so it’s not clear how it would reverse this decline.
There are other reasons to be concerned about expanding conservatorships. Those who are conserved—especially in the most urban and the most rural counties—are often sent to other, far from their friends or family, that have more and cheaper facilities. There is no statewide agency that regulates the use of conservatorship, so that role falls to the courts. But in conversations with public defenders assigned to represent conserved clients—who, like conservators themselves, are working mightily with limited resources to help extremely vulnerable people—I have heard ongoing skepticism about the effectiveness of legal protections. One 2009 study found that, in 298 conservatorship hearings, the judge only ruled against establishing conservatorship in one case.
Advocates are rightly worried that SB 1045 will siphon funds away from voluntary and community-based services. The law does require that cities establish that “no voluntary mental health programs…may be reduced as a result of the implementation” of the bill. But San Francisco’s claim that this is the case is non-sensical. If the people targeted for expanded conservatorship—which it says number between 55 and 103—jump to the front of the queue for scarce places in permanent supportive housing, others who are trying to access housing are, obviously, bumped back. There are already two referrals for every one place available in intensive case management; the San Francisco Auditor found that, in one month, 35 people in San Francisco were referred to long-term locked facilities. Every single one only found a place on a waitlist.
In 1955 there were 550,000 people institutionalized in state hospitals; today, there are fewer than 10% that many. It’s unlikely that California will invest the billions of dollars necessary to once again hide the homeless and incarcerated mentally ill behind hospital walls. But with counties from Sonoma to San Diego flirting with building new psychiatric inpatient beds, the risk of a turn back towards forced care is real.
People rightly want to see changes to California’s mental health system, particularly to meet the needs of individuals whose severe, co-occurring mental illnesses and substance abuse disorders are aggravated by our collective failure to provide them a dignified and stable place to live. But attacking the LPS Act for going too far misses that the system that the signers of this “Magna Carta” was never built. A comprehensive system of voluntary, culturally-competent, and comprehensive services has never existed; it’s a bit premature to abandon a vision that’s never been seriously tried.