SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: AB 2015 (Author:Eggman)

Version: August 6, 2020

Hearing Date: August 13, 2020

Fiscal: Yes

Urgency: No

Consultant: JT

SUBJECT

Certification for intensive treatment: review hearing

DIGEST

This bill provides that a person’s medical condition may be considered in determining their mental condition for purposes of certifying them for a 14- or 30-day involuntary detention for treatment and evaluation under the Lanterman-Petris Short (LPS) Act.

EXECUTIVE SUMMARY

The parens patriae authority gives the state the power to intervene on behalf of those who cannot act in their own best interests. California’s approach to wielding this power over people with mental illnesses shifted dramatically beginning in the second half of the 20th century, as it sought to move from a heavy-handed paternalistic model to a more libertarian model that better protected civil rights. This effort culminated with the passage of the LPS Act, which established a process for imposing a conservatorship on a person found to be gravely disabled or a danger to self or others.

Because a conservatorship involves a major curtailment of liberty, the LPS Act contains several significant procedural safeguards, including a carefully calibrated series of temporary detentions for evaluation and treatment of people who may ultimately necessitate a conservatorship. This process begins with a 72-hour “5150” detention for evaluation and treatment, which may be extended by certification for 14 days of intensive treatment and an additional 30-day period for further intensive treatment, provided that at each juncture probable cause to continue the detention is found at a certification review hearing.

This bill would provide that the evidence submitted in support of the certification may include information regarding the person’s medical condition, as defined, and how that condition bears on certifying the person as a danger to self or others or as gravely disabled. The bill would require the hearing officer to consider such information.

The bill is sponsored by the California Psychiatric Association and supported by the California Judges Association, California Hospital Association, California Psychological Association, California Treatment Advocacy, Crestwood Behavioral Health, Dignity Health, Sutter Health, the Steinberg Institute, and Tenet Health. The bill is opposed by Access California, California Behavioral Health Planning Council, Disability Rights California, and the Law Foundation of Silicon Valley.

Due to the COVID-19 Pandemic and the unprecedented nature of the 2020 Legislative Session, all Senate Policy Committees are working under a compressed timeline. This timeline does not allow this bill to be referred and heard by more than one committee, as a typical timeline would allow. In order to fully vet the contents of this measure for the benefit of Senators and the public, this analysis includes information from the Senate Committee on Health.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Establishes the LPS Act, which provides for the involuntary detention for treatment and evaluation of people who are gravely disabled or a danger to self or others. (Welf. & Inst. Code § 5000 et seq.)^[1] Defines “grave disability” as a condition in which a person, as a result of a mental disorder, or impairment by chronic alcoholism, is unable to provide for the person’s basic personal needs for food, clothing, or shelter. (§ 5008(h)(1)(A),(2).)
2. Provides that, if a person is gravely disabled as a result of mental illness, or a danger to self or others, then a peace officer, staff of a designated treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, take that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention, or placement in a designated treatment facility. (§ 5150.)
3. Provides that a person who has been detained for 72 hours may be further detained for up to 14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. (§ 5250.) Provides for an additional 30 days of intensive treatment if the person remains gravely disabled and is unwilling or unable to voluntarily accept treatment. (§ 5270.15.)
4. Requires that when applying the definition of mental disorder for purposes of, among other provisions, section 5250, that the historical course of the person’s medical disorder be considered, and defines “historical course” to include evidence presented by persons who have provided, or are providing, mental health or related support services to the patient, the patient’s medical records as presented to the court, including psychiatric records, or evidence voluntarily presented by family members, the patient, or any other person designated by the patient. (§ 5008.2.)
5. Generally requires, for a person to be certified for the additional 14 days, that a notice of certification be signed by a professional person or a qualified designee in charge of the agency or facility providing evaluation services, as well as a second person who participated in the evaluation who is a physician or, if possible, a board-certified psychiatrist. (§ 5251.) The certification notice must be personally delivered to the person, their attorney or a designated advocate, and sent to anyone else the person designates. (§ 5253.)
6. Requires that the person be informed, at the time of delivery of the notification, that they are entitled to a certification review hearing, to be held within four days of the date of certification unless judicial review is requested, to determine whether probable cause exists to detain the person for intensive treatment related to the mental disorder or impairment by chronic alcoholism. Requires that the person be informed of their rights with respect to the hearing, including the right to the assistance of another person to prepare for the hearing or to answer other questions and concerns regarding their involuntary detention or both. (§ 5254.)
7. Requires that the person be informed of their right to judicial review by habeas corpus and their right to counsel, including court-appointed counsel. (§ 5254.1.)
8. Requires, when a person is certified for intensive treatment for the 14-day or 30-day hold, that, unless judicial review has been requested, a certification review hearing be held within four days of the certification unless postponed by request of the person, their attorney, or advocate. (§ 5256.)
9. Requires, at the certification review hearing, that evidence in support of the certification decision be presented by a person designated by the director of the facility. In addition, either the district attorney or the county counsel may, at their discretion, elect to present evidence at the certification review hearing. (§ 5256.2.)
10. Provides that, at a certification review hearing, a person certified has the following rights:
    1. Assistance by an attorney or advocate.
    2. To present evidence on their own behalf.
    3. To question persons presenting evidence in support of the certification decision.
    4. To make reasonable requests for the attendance of facility employees who have knowledge of or participated in, the certification decision.
    5. To make the person conducting the hearing aware if they have received medication within a specified timeframe of the hearing, and of the probable effects of the medication.
    6. To an impartial hearing conducted in an informal manner not bound by the rules of procedure or evidence applicable to judicial proceedings.
    7. Reasonable attempts must be made by the mental health facility to notify family members or any other person designated by the patient, of the time and place of the certification hearing, unless the patient requests that this information not be provided.
    8. All evidence that is relevant to establishing that the person certified is or is not as a result of a mental disorder or impairment by chronic alcoholism, a danger to self or others, or gravely disabled, must be admitted at the hearing and considered by the hearing officer.
    9. Although resistance to involuntary commitment may be a product of a mental disorder, this resistance does not, in itself, imply the presence of a mental disorder or constitute evidence that a person meets the criteria of being dangerous to self or others, or gravely disabled. (§ 5256.4.)
11. Provides that if, at the conclusion of the certification review hearing, the person conducting the hearing finds that there is not probable cause to believe that the person certified is, as a result of a mental disorder or impairment by chronic alcoholism, a danger to others or self, or gravely disabled, then the person certified may no longer be involuntarily detained. (§ 5256.5.) If, however, there is probable cause, then the person may be detained for involuntary care, protection, and treatment related to the mental disorder or impairment by chronic alcoholism for an additional 14-day or 30-day period, as provided. (§ 5256.6.)
12. Requires that a person’s involuntary 14-day or 30-day detention be terminated only if the psychiatrist directly responsible for the person’s treatment believes, as a result of their personal observations, that the person certified no longer is, as a result of mental disorder or impairment by chronic alcoholism, a danger to others or self, or gravely disabled. (§ 5257.)
13. Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend an LPS conservatorship to the county conservatorship investigator for a person who is gravely disabled and is unwilling or unable to voluntarily accept treatment, and requires the conservatorship investigator, if they concur with the recommendation, to petition the superior court to establish an LPS conservatorship. (§ 5350 et seq.)

This bill:

1. Allows for the evidence presented in support of the certification decision to include information regarding the person’s medical condition and how that condition bears on certifying the person as a danger to self or others or as gravely disabled. Requires the hearing officer to consider the information in the determination of probable cause.
2. Defines “medical condition” for these purposes as a serious chronic or acute physical ailment for which the treating physician and treating psychiatrist, as part of the certification process, document the following:
   1. A certification by the physician that all of the following apply:
      1. Without treatment, the medical condition poses a serious risk that the person, within three months, will suffer great bodily harm or death.
      2. The treatment is consistent with generally accepted standards of practice, the person will receive the treatment if further detained, and upon release, the person will be provided with a treatment plan and connected with services to continue to receive treatment.
      3. During the person’s detention pursuant to section 5150, the physician advised the person on the purpose, nature, risks, and benefits of the medical condition and the treatment, consistent with existing requirements for obtaining informed consent.
   2. A certification by the psychiatrist that all of the following apply:
      1. If the medical condition is a chronic condition that existed before the person was detained pursuant to Section 5150, the person was consistently unable to comply with treatment due to their mental health condition.
      2. If released into the community, the person, due to their mental health condition at the time of certification, is likely to remain consistently unable to comply with the treatment due to either of the following:
         1. The person remains unable to comply with the treatment because they cannot achieve a rudimentary understanding of the nature of the medical condition and continue to lack insight into the need for treatment.
         2. The person understands the nature of the medical condition and wishes to comply with the treatment, but, due to the person’s mental health condition, has a demonstrated history of being consistently unable to comply with the treatment, or a treatment for a similar medical condition, and this pattern is likely to recur if the person is released into the community.
   3. Excludes from the definition of “medical condition”:
      1. A condition that predominantly involves a substance use disorder.
      2. Exposure to potential harms resulting from the individual’s personal circumstances, including, but not limited to, lack of health care insurance, poverty, or homelessness.
      3. Medical information that is more than four years old.
3. Requires, if the person needs continuing medical treatment after the termination of the involuntary detention, that they be informed that continuing medical treatment is recommended.
4. Makes other conforming, stylistic, and clarifying changes.

COMMENTS

1. Homelessness, substance abuse, and mental illness

Between 2018 and 2019, according to the U.S. Department of Housing and Urban Development’s point-in-time count, California’s homeless population increased nearly 17 percent to 151,278. While some of this population has access to transitional housing programs or emergency shelters, 72 percent remain unsheltered, living in cars, tent encampments, or on the street.^[2] One out of every nine Americans live in California but about one in four homeless Americans, including the majority of the nation’s unsheltered people, live in California.^[3] African-Americans are disproportionately represented among the state’s unhoused population, as are LGBTQ people.^[4] Seniors are falling into homelessness at an increasing rate.^[5] These figures will likely become even grimmer as a result of the COVID-19 pandemic and ensuing economic devastation.

There are various causes of homelessness, including mental health problems, addiction, trauma, poverty, and interaction with the criminal justice system. However, the primary cause of homelessness in California is the rising cost of rent.^[6] Low-income people with serious mental illnesses are often housed in board-and-care facilities. But because state subsidies have remained stagnant while housing prices and the minimum wage have increased, several of these facilities have been shuttered.^[7] Since 2012, San Francisco has lost more than a third of licensed residential facilities serving people under 60 and more than a quarter of those serving older people.^[8] From 2018 through 2019, Los Angeles lost more than 200 beds for low-income people with serious mental illnesses.^[9]

While some people only temporarily fall into homelessness, governments and service providers generally focus their efforts on the chronically homeless. Typically, these individuals suffer from a disability and have experienced homelessness on multiple occasions or for a prolonged period. Roughly 34,000 Californians fall into this category.^[10]

Although mental illness and substance abuse contribute to homelessness, the extent is not clear. Last year, the Los Angeles Times examined more than 4,000 questionnaires and found that about 67 percent had either a mental illness or a substance abuse disorder.^[11] However, the Los Angeles Homeless Services Authority interpreted this data more strictly, finding that 14 percent had a substance use disorder and 25 percent had a serious mental illness.^[12] Confounding this issue is the fact that living without a secure home can cause mental health problems and lead to substance abuse, and these conditions may be mutually reinforcing. For example, some drugs, such as methamphetamine, exacerbate mental illness.^[13]

1. Involuntary detention for treatment and evaluation under the LPS Act

Before the 1950s, people with serious mental illnesses were typically confined in expansive state-run institutions, often for their entire lives, based on a mere finding by a physician that the person had a mental illness and was in need of treatment. Following a series of exposes^[14] and the advocacy efforts of civil rights attorneys and mental health professionals, this model gave way to an approach that instead privileged individual liberty. States like California began “deinstitutionalizing” psychiatric patients, allowing them to seek treatment in their own community, premised on the largely unrealized expectation that the resources to provide the treatment would be available.

Signed into law in 1967 by Governor Ronald Reagan, the LPS Act includes among its goals “ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program.” (§ 5001.)

Under the LPS framework, “[o]ne of the principal powers which the court may grant a conservator is the right to place a conservatee in an institution.” (Conservatorship of Roulet (1979) 23 Cal.3d 219, 223 (Roulet).) A person found to be gravely disabled may be involuntarily confined for up to one year. (§ 5361.) If, at the end of that year, the conservator determines that the conservatorship is still required, the conservator may petition the superior court for reappointment (id.), a process that may repeat itself for as long as the person remains gravely disabled. “In effect, these statutes assure in many cases an unbroken and indefinite period of state-sanctioned confinement. ‘The theoretical maximum period of detention is life as successive petitions may be filed . . . .’ [Citation.]” (Roulet, supra, 23 Cal.3d at p. 224; italics in original.) “In addition to physical restraint, ‘[t]he gravely disabled person for whom a conservatorship has been established faces the loss of many other liberties …’” (Id. at 227.) “Moreover, a person suffering from a grave mental disorder is obviously in a poor position to influence or monitor counsel’s efforts on his behalf. Accordingly, the Legislature and this court have built several layers of important safeguards into conservatorship procedure.” (Conservatorship of Ben C. (2007) 40 Cal. 4th 529, 540.)

“Before a person may be found to be gravely disabled and subject to a year-long confinement, the LPS Act provides for a carefully calibrated series of temporary detentions for evaluation and treatment.” (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541.) The act limits involuntary commitment to successive periods of increasingly longer duration, beginning with a 72-hour detention for evaluation and treatment (§ 5150), which may be extended by certification for 14 days of intensive treatment (§ 5250); that initial period may be extended for an additional 14 days if the person detained is suicidal. (§ 5260.) The 14-day certification may be extended for an additional 30-day period for further intensive treatment. (§ 5270.15.)

After the initial 72-hour detention, the 14-day and 30-day commitments each require a certification hearing before an appointed hearing officer to determine probable cause for confinement unless the person has filed a petition for the writ of habeas corpus. (§§ 5256, 5256.1, 5262, 5270.15, 5275, 5276.) When two professional persons sign the certification, notice of the certification must be personally delivered to the person, their attorney or a designated advocate, and sent to anyone else the person designates. (§§ 5251, 5253.) When the notice is delivered, the person must be informed of their rights with respect to the hearing, including the right to the assistance of another person to prepare for the hearing or to answer other questions and concerns regarding their involuntary detention or both. (§ 5254.) At the hearing, which must be held within four days of delivery of the notice (§ 5256), a designee of the director of the psychiatric facility must present evidence in support of the certification decision, and the district attorney or the county counsel may present additional evidence. (§ 5256.2.) The hearing must be conducted in an impartial and informal manner to encourage free and open discussion by participants. (§ 5256.4(b).) The person has the right to assistance by an attorney or advocate, present evidence, request the attendance of facility employees, and question persons presenting evidence in support of the certification. (Id. at (a).) All evidence that is relevant to establishing that the person certified is or is not as a result of mental disorder or impairment by chronic alcoholism, a danger to others or self, or gravely disabled, must admitted at the hearing and considered by the hearing officer. (Id. at (d).)

1. Allows medical conditions to be considered in LPS certification review hearings

Over the last few years, as the state’s mental health and homelessness crises have intensified, several policy disagreements have played out in the Legislature with respect to the causes of, and solutions to, these crises. One prominent fault line centers on the state’s power to intervene on behalf of those who cannot act in their own best interests. Some argue that the LPS Act should be expanded to provide counties additional discretion to assert legal control over people who are incapable of surviving safely on their own. Others argue that this focus is misguided because many counties currently do not provide adequate community-based services to help individuals avoid deteriorating into a condition that necessitates a conservatorship.

Several bills have attempted to expand the “gravely disabled” criteria to expressly address a person’s inability to provide for their own medical treatment.^[15] Perhaps the most noteworthy is AB 1971 (Santiago, 2018), which was passed by this Committee as a pilot program applicable until 2024 in Los Angeles County. As amended in this Committee, the bill would have expanded the definition of “gravely disabled” for the purpose of the LPS Act to also include a condition in which a person, as a result of a mental health disorder, is unable to provide for their basic personal needs for medical treatment, if the failure to receive medical treatment, as defined, results in a deteriorating physical condition that a medical professional, in their best medical judgment, attests in writing, will more likely than not, lead to death within 6 months, as specified. The bill passed this Committee by a vote of 5-1 but was later ordered to the Senate inactive file.

The State Auditor recently released an audit of the implementation of the LPS Act in Los Angeles, San Francisco, and Shasta Counties. The Auditor concluded:

[…] the LPS Act’s criteria for involuntary treatment allows counties sufficient authority to provide short-term involuntary treatment to people. Expanding the LPS Act’s criteria to include additional situations in which individuals may be involuntarily treated could potentially infringe upon people’s liberties—and we found no evidence to justify such a change.

Perhaps most troublingly, many individuals were subjected to repeated instances of involuntary treatment without being connected to ongoing care that could help them live safely in their communities. […]^[16]

The Auditor further concluded that a dearth of community-based mental health treatment services is the major reason that individuals with mental health challenges deteriorate or relapse into a condition that necessitates a conservatorship.^[17]

Compared to previous bills, this bill takes a generally narrower approach to the issue of a person’s inability to provide for their own medical care. Whereas its predecessors would have applied to the LPS conservatorship itself, this bill only applies to the 14-day and 30-day detentions that are preludes to the one-year conservatorship. And instead of amending the “gravely disabled” definition, the bill expands the scope of admissible evidence that may be considered in the certification review hearing. Specifically, the bill would authorize the evidence presented in support of the certification decision to include information regarding the person’s medical condition and how that condition bears on certifying the person as a danger to themselves or to others or as gravely disabled. The bill would require the hearing officer to consider the information in the determination of whether there is probable cause that the person is gravely disabled or a danger to self or others.

Proponents of the bill note that people with severe mental illnesses who experience homelessness are subjected to harsh conditions that may create or exacerbate life-threatening medical conditions, but often they do not have access to care or are resistant to it. The sponsors offer an example of a person who had schizophrenia and diabetes. Because she was able to verbalize to the court that she was able to care for her food, clothing, and shelter needs, she was decertified. But she didn’t believe she needed any medications, including her diabetes medication. She was soon hospitalized, stabilized, and sent back to a psychiatric treatment facility.

The author writes:

When surveyed psychiatrists identified that they often felt they had to release patients that no longer met the current criteria for a hold although the patient was so disabled by a severe mental illness that they lacked the capacity to manage their health issues and seek sufficient medical care. The failure in the law to specifically address this means patients suffering from a debilitating mental illness miss the opportunity to receive adequate and extended medical care while receiving treatment for their mental health condition. There is no question that we must do more to invest in community resources and provide early intervention. This bill seeks to support individuals that face serious health risks by ensuring that they have the opportunity and resources to manage medical issues that are or can become complicated and acute without medical treatment.

1. Support

The California Psychiatric Association, the bill’s sponsor, writes:

[…] current law fails to address the needs of those individuals with a mental illness to lack the capacity to provide for their medical needs. Those individuals languish on the streets without adequate access to proper hygiene and conditions like malnutrition, wounds from accidents and altercations, diabetes and other chronic health conditions, all of which place them at risk of serious physical harm. … Many homeless refuse treatment for their mental illness or their health condition.

The Steinberg Institute argues that current law “blinds courts to the physical medical condition of a patient, no matter how serious.” They argue that this leads to circumstances in which psychiatrists “feel they have to release patients no longer meeting the criteria for a hold even though the patient is so tragically disabled by a severe mental illness that they lack the capacity to manage their co-occurring serious health issues.”

Additionally, several organizations that provide care to LPS patients support the bill. Dignity Health argues that considering a person’s medical status gives “the decision maker a more complete view of the individual’s needs.” Tenet Health argues that the bill “seeks to allow a more holistic consideration of a patient’s health in extending an involuntary hold.” Crestwood Behavioral Health argues that “[p]oor nutrition, exposure to the elements, injuries from accidents and altercations, and inadequate access to proper hygiene leave many people experiencing a severe mental disorder with serious physical ailments.”

1. Comment from the Senate Committee on Health

The Senate Committee on Health writes:

The Legislature over the years has considered numerous bills seeking to expand LPS Act criteria for involuntarily detaining individuals with mental or substance use disorders, particularly the expansion of the definition of “grave disability” to include an individual’s inability to provide for one’s medical care. The Senate Judiciary and Health Committees have been cautious in this approach given the amount of opposition such proposals invite from disability rights and behavioral health advocates, as well as a general inconclusive need to expand criteria for involuntary detention. Additionally, the California State Auditor’s recently released report on the LPS Act found no evidence for the need to expand criteria for involuntary detentions and determined that any expansion could widen the use of involuntary holds and pose significant concerns about infringement on individual rights. The Senate Judiciary Committee may wish to consider whether the provisions in this bill align with those principles.

1. Recent amendments address concerns by defining “medical condition” narrowly
   1. Concerns with the prior version of the bill

Due to time constraints, the bill was amended August 6, 2020. All registered opposition is based on the prior version of the bill. This section sets forth the concerns articulated by the opposition. The next section describes how the bill was amended to address many, if not all, of these concerns.

Access California argues that physical health conditions are not relevant to mental health conditions and that this bill creates a slippery slope in which a person with a mental health condition that does not rise to the level of gravely disabled is nonetheless subjected to an involuntary hold because of a physical health condition. They argue this “is a clear violation of the civil rights of those with serious medical conditions who may have an array of reasons for the severity of their medical condition unrelated to their mental health (no access to medication, inability to property store refrigerated medications, ineffectiveness of medication, etc.).”

The California Behavioral Health Planning Council writes that “any effort to institutionalize an individual involuntarily is counterproductive to the wellness and recovery model that California embraces, which allows an individual to choose how, when and where they are to receive services/treatment related to mental health and/or substance use.” They view the expansion of the scope of admissible evidence as tantamount to expanding the gravely disabled standard, which would “lead to more civil liberties being taken from individuals.”

The Law Foundation of Silicon Valley argues: “By allowing hearing officers to consider medical conditions in determining whether patients are gravely disabled for purposes of 5250 commitment, it conflates a person’s medical condition with their unrelated mental health condition. This is a troubling concern for their civil rights.” They argue that California law ensures that people have the right to make their own health care decisions. They assert that the bill will result in people being held in psychiatric hospitals due to medical conditions regardless of whether the hospital can treat the condition, and that the patient will have the additional burden of showing they are able to seek health care treatment for the condition in order to avoid involuntary commitment.

Disability Rights California (DRC), which initially did not take a position on the bill, writes: “In light of the findings and recommendations of the [State Auditor’s] report we now opposed AB 2015. We believe that this bill and related policy issues raised in the audit should undergo a thorough vetting of the audit findings and recommendations and the implications for the broader mental health delivery system before making piecemeal changes in LPS.” DRC argues that “[e]ven though this bill poses the additional criteria of considering a person’s medical conditions in a certification hearing as evidentiary it is still, in effect, an expansion of the danger to self, others or gravely disabled standard since the court is required to consider the evidence.” They assert that the term “medical condition,” which was not defined in the prior version of the bill, was unclear and overbroad and was not limited to serious or persistent conditions. DRC also points out that “the bill does not include any provisions to distinguish between informed and uninformed rejection of care nor does it include a requirement that the held individual have a basic understanding of the medical condition or a lack of insight into the need for treatment.”

Of these opponents, only DRC has confirmed their continued opposition despite the amendments described below.

• 1. Recent amendments substantially narrow the bill’s scope

The California Supreme Court has admonished that “[the] law must still strive to make certain that only those truly unable to take care of themselves are being assigned conservators under the LPS Act and committed to mental hospitals against their will.” (Conservatorship of Roulet, supra, 23 Cal.3d at p. 225.) The prior version of the bill placed no limitations on the medical conditions that can be entered into evidence to help determine if there is probable cause that a person is gravely disabled or a danger to self or others. This risked the possibility that the bill could be applied in a manner that results in the detention of people who do not have an imminent, life-threatening ailment, which, in turn, could disproportionately impact people who have medical conditions arising from hardships associated with poverty or homelessness. Additionally, the previous version of the bill could have been construed to apply to people who make informed, albeit unusual or even unwise, decisions to forgo medical treatment.

To address such concerns, the author recently amended the bill to narrow the definition of “medical condition” to serious medical conditions that the person is incapable of treating due to their mental illness. This determination would be made jointly by the physician and psychiatrist who treat the person during their initial 5150 hold. The physician must confirm the seriousness of the medical ailment—specifically, a condition that poses a serious risk of great bodily harm or death within three months—as well as the appropriate treatment, and a plan for administering that treatment during and after the person’s subsequent detention. The physician must also advise the person on the purpose, nature, risks, and benefits of the medical condition and the treatment, consistent with existing requirements for obtaining informed consent.

Against this backdrop, the treating psychiatrist must separately determine whether the person’s mental illness renders them incapable of managing their own treatment of the medical condition. This determination is based on a finding that (1) the person is incapable of forming a rudimentary understanding of the nature of the medical condition and lacks insight into the need for treatment, or (2) has a demonstrated history of being unable to comply with the treatment, or a treatment for a similar medical condition, as a result of their medical condition, and this pattern is likely to recur. To ensure that a person is not deemed unable to provide for their own care due to their station in life, the bill, as it relates to chronic conditions that existed before the person was detained, requires the psychiatrist to find that the person was consistently unable to comply with the treatment due to their mental health conditions. This forecloses the possibility that a prior inability to provide for one’s care was not principally due to lack of access to care.

Finally, the bill expressly excludes from the definition of medical condition (1) a condition that predominantly involves a substance use disorder,^[18] (2) exposure to potential harms resulting from the individual’s personal circumstances, including lack of health care insurance, poverty, or homelessness, and (3) medical information that is more than four years old.

While these limitations on the scope of medical evidence that may be considered under the bill’s provisions are likely to assuage many of the concerns described above, some concerns linger in light of the State Auditor’s conclusion that there is no evidence that justifies expanding the LPS Act to include additional situations in which individuals may be involuntarily treated.

SUPPORT

California Psychiatric Association (sponsor)

California Judges Association

California Hospital Association

California Psychological Association

California Treatment Advocacy Coalition

Crestwood Behavioral Health

Dignity Health

Steinberg Institute

Sutter Health

Tenet Health

OPPOSITION

Access California—Cal Voices

California Behavioral Health Planning Council

Disability Rights California

Law Foundation of Silicon Valley

RELATED LEGISLATION

Pending Legislation:

AB 1976 (Eggman, 2020) would remove the sunset on the assisted outpatient treatment program under Laura’s law and would make it so that counties must opt out of the program instead of opting in. The bill is pending in the Senate Appropriations Committee.

AB 3242 (Irwin, 2020) would authorize the use of telehealth technology to conduct an evaluation under section 5150. The bill is pending on the Senate floor.

Prior Legislation:

SB 1251 (Moorlach, 2020) would have authorized any county to adopt the “housing conservatorship” program established by SB 40, which is described below. SB 1251 was referred to this committee but was not heard.

SB 1254 (Moorlach, 2020) would have provided for the establishment of a guardian ad litem for a person who, upon petition to a court, is determined to lack the capacity to make rational informed decisions regarding medical care, mental health care, safety, hygiene, shelter, food, or clothing with a rational thought process due to a mental illness, defect, or deficiency. The bill would have provided that a guardian may make medical care, mental health care, safety, hygiene, shelter, food, or clothing decisions on behalf of the person lacking capacity. SB 1254 was referred to this committee but was not heard.

AB 1946 (Santiago & Friedman 2020) would have expanded the definition of “gravely disabled” for the purpose of the LPS Act to also include a condition in which a person, as a result of a mental health disorder, is unable to provide for their basic personal needs for medical treatment, if the failure to receive medical treatment, as defined, results in a deteriorating physical condition that a medical professional, in their best medical judgment, attests in writing, will more likely than not, lead to death within 6 months, as specified. AB 1946 was referred to the Assembly Health Committee but was not heard.

AB 2679 (Gallagher, 2020) would have expanded authorized the County of Butte to adopt the “housing conservatorship” program under SB 40, which is described below. AB 2679 was referred to the Senate Health Committee but was not heard.

SB 40 (Weiner, Ch. 467, Stats. 2019) refined a pilot program, established by SB 1045 (Weiner, Ch. 845, Stats. 2018), applicable in Los Angeles, San Diego, and San Francisco counties, which provides for the appointment of a conservatorship for a person who is incapable of caring for their own health and well-being due to a serious mental illness and substance use disorder, which is initially evidenced by eight detentions under a section 5150 hold for treatment and evaluation within a 12-month period.

SB 640 (Moorlach, 2019) would have expanded the “gravely disabled” standard to apply to a person who, as a result of a mental health disorder, is incapable of making informed decisions about, or providing for, the person’s own basis personal needs for food, clothing, or shelter without significant supervision and assistance from another person and, as a result of being incapable of making these informed decisions, the person is at risk of substantial bodily harm, dangerous worsening of concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of the person’s essential needs. The bill failed passage in the Senate Health Committee.

AB 1572 (Chen, 2019) was virtually identical to SB 640 and also would have created a grant program to fund conservatorship cases. The bill was referred to the Assembly Health Committee but was not heard.

AB 1971 (Santiago, Chen, & Friedman, 2018) was similar to AB 1946 (2020) but would have been limited to a pilot program in the County of Los Angeles until 2024. The bill was ordered to the inactive file on the Senate floor.

AB 2156 (Chen, 2018) would have changed the definition of “gravely disabled” for LPS Act purposes to read, in part, a condition in which a person, as a result of a mental health disorder, is incapable of making informed decisions about, or providing for, their own basic personal needs for food, clothing, shelter, or medical care without significant supervision and assistance from another person and, as a result of being incapable of making these informed decisions, the person is at risk of substantial bodily harm, dangerous worsening of a concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of their essential needs that could result in bodily harm. The bill was held in the Assembly Health Committee.

PRIOR VOTES:

Assembly Floor (Ayes 76, Noes 0)

Assembly Appropriations Committee (Ayes 18, Noes 0)

Assembly Health Committee (Ayes 15, Noes 0)

**************

1. All further statutory references are to the Welfare and Institutions Code, unless otherwise specified. ↑

2. The 2019 Annual Homeless Assessment Report to Congress https://files.hudexchange.info/resources/documents/2019-AHAR-Part-1.pdf (as of July 31, 2020). ↑

3. California’s homelessness crisis—and possible solutions—explained. Calmatters (Jan. 8, 2020) https://calmatters.org/explainers/californias-homelessness-crisis-explained/ (as of July 31, 2020). ↑

4. Id. ↑

5. Id. ↑

6. Id. ↑

7. Vanishing board-and-care-homes leave residents with few options, Calmatters (Apr. 15, 2019) https://calmatters.org/projects/board-and-care-homes-closing-in-california-mental-health-crisis/ (as of July 31, 2020). ↑

8. Id. ↑

9. Id. ↑

10. Id. ↑

11. Are many homeless people in L.A. mentally ill? New findings back the public’s perception (Oct. 7, 2019) https://www.latimes.com/california/story/2019-10-07/homeless-population-mental-illness-disability (as of July 31, 2020). ↑

12. 2019 Greater Los Angeles Homeless Count—Los Angeles Continuum of Care https://www.lahsa.org/documents?id=3422-2019-greater-los-angeles-homeless-count-los-angeles-continuum-of-care.pdf (as of July 31, 2020). ↑

13. California’s homelessness crisis—and possible solutions—explained. Calmatters (Jan. 8, 2020) https://calmatters.org/explainers/californias-homelessness-crisis-explained/ (as of July 31, 2020). ↑

14. One journalist described “the frightful squalor these unfortunates live in--beds jammed against one another, holes in the floor, gaping cracks in the wall, long rows of hard, unpainted benches, dirty toilets, dining halls where the food is slopped out by unkempt patient attendants and, above all, the terrifying atmosphere of hopelessness in institutions where thousands of patients are penned in day after day and night after night endlessly staring at blank walls.” Another author described mental hospitals as “buildings swarming with naked humans herded like cattle and treated with less concern, pervaded by a fetid odor so heavy, so nauseating, that the stench seemed to have almost a physical existence of its own.” (Gordon, Sara, The Danger Zone: How the Dangerousness Standard in Civil Commitment Proceedings Harms People with Serious Mental Illness (2016) 66 Case W. Res. 657, 660, fn. 30.) ↑

15. See “Related Legislation” section below for additional details. ↑

16. Lanterman-Petris-Short Act: California Has Not Ensured That Individuals With Serious Mental Illnesses Receive Adequate Ongoing Care (July 28, 2020) Report 2019-119, Public Letter, available at https://www.auditor.ca.gov/reports/2019-119/index.html (as of Jul. 28, 2020). ↑

17. Id. ↑

18. The issue of conservatorships for individuals with co-occurring and mutually-exacerbating substance abuse disorders and mental illnesses was painstakingly addressed in recent legislation that created a pilot program that establishes a novel type of conservatorship known as a “housing conservatorship.” SB 1045 (Weiner, Ch. 845, Stats. 2018) and the follow-up bill, SB 40 (Weiner, Ch. 467, Stats. 2019), established a pilot program, applicable in Los Angeles, San Diego, and San Francisco counties, that provides for the appointment of a conservatorship for a person who is incapable of caring for their own health and well-being due to a serious mental illness and substance use disorder, as evidenced by eight detentions under a section 5150 hold for treatment and evaluation within a 12-month period. The program is in the early stages of implementation in San Francisco and information is being gathered as to its effectiveness. Arguably, legislation that touches on this issue is premature. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2015

Author:(Eggman)

As Amended Ver:May 20, 2020

Majority vote

SUMMARY:

Authorizes the evidence presented in support of certification of an individual for involuntary detention by a determination that the individual is a danger to themselves or others or gravely disabled, under what is known as a Welfare and Institutions Code 5250 hold, for no more than 14 days of intensive treatment related to mental health disorders or impairment by chronic alcoholism, to include information regarding the person's medical condition and how that condition bears on the certification of the person as either a danger to themselves or others or gravely disabled. Requires the hearing officer to consider the information in the determination of probable cause for certification.

Major Provisions

COMMENTS:

The Lanterman-Petris-Short (LPS) Act was signed into law in 1967 and provides for involuntary commitment for varying lengths of time for the purpose of treatment and evaluation, provided certain requirements are met. Additionally, the LPS Act provides for LPS conservatorships, resulting in involuntary commitment for the purposes of treatment if an individual is found to meet the criteria of being a danger to themselves or others or is gravely disabled as defined. The LPS Act provides for a conservator of the person, of the estate, or of both the person and the estate for a person who is gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism or use of controlled substances. The person for whom such a conservatorship is sought has the right to demand a court or jury trial on the issue of whether they meet the gravely disabled requirement. The purpose of an LPS conservatorship is to provide individualized treatment, supervision, and placement for the gravely disabled person. Current law also deems a person as not being gravely disabled for purposes of a conservatorship if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. The LPS Act, along with the provisions allowing for a court ordered outpatient service available through what is known as Laura's Law, provides a robust system for mandating intensive inpatient and outpatient care, along with general oversight, for those who may not be able to care for themselves.

1. 5150's: Typically one first interacts with the LPS Act through what is known as a 5150 hold, which allows a peace officer or other authorized individual as specified to commit a person for an involuntary detention of up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a threat to self or others, or gravely disabled. The peace officer or other authorized individual who initially detains the individual must determine and document that the individual meets this standard. When making the determination, the peace officer or other authorized person may consider the individual's historical course, which includes evidence presented by a person who has provided or is providing mental health or related support services to the person on the 5150 hold; evidence presented by one or more members of the family of the person on the 5150 hold; and, evidence presented by the person on the 5150 hold, or anyone designated by that person, if the historical course of the person's mental disorder has a reasonable bearing on making a determination that the person requires a 5150 hold.
2. 5250's. Following the 72-hour hold under a 5150, a person may be certified for intensive treatment, which initially permits a hold for an additional period not to exceed 14-days, without court review, if they are found to still be a danger to self or others, or gravely disabled. When determining whether the person is eligible for a 14-day hold, the professional staff of the agency or facility providing evaluation services must find that the person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis. A notice of certification is required for all persons certified for intensive treatment, and a copy of the notice for certification is required to be personally delivered to the person certified, the person's attorney, or the attorney or advocate, as specified.
3. 5270's. If, after the initial 14 days, a person is still found to remain gravely disabled and unwilling or unable to accept voluntary treatment, the person may be certified for an additional period of not more than 30 days of intensive treatment. A person cannot be found at this point to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. 
4. 5350's. At the expiration of the 14 days period (or subsequent 30 day period) of intensive treatment, a person may be confined for further treatment under the LPS for an additional period, not to exceed 180 days if one of the following exists:
   1. They have attempted, inflicted, or made a serious threat of substantial physical harm to either themselves or another after having been taken into custody, and while in custody, and who, as a result of mental disorder, presents a demonstrated danger of inflicting substantial physical harm upon others;
   2. They have attempted, or inflicted physical harm to themselves or another that resulted in them being taken into custody, and who presents, as a result of mental disorder, a demonstrated danger of inflicting substantial physical harm upon others; and,
   3. They have made a serious threat of substantial physical harm to themselves or another within seven days of being taken into custody, that threat having at least in part resulted in their being taken into custody, and they present, as a result of mental disorder, a demonstrated danger of inflicting substantial harm to others.

According to the Author:

According to the author, psychiatrists identified that they often felt they had to release patients that no longer met the current criteria for a hold although the patient was so disabled by a severe mental illness that they lacked the capacity to manage their health issues and to seek sufficient medical care. The failure in the law to specifically address this means patients suffering from a debilitating mental illness miss the opportunity to receive adequate and extended medical care while receiving treatment for their mental health condition. Unfortunately, those experiencing severe mental illness in our communities cycle through a revolving door of crisis intervention, stabilization, incarceration or hospitalization, and release. A shortage of services has resulted in a rise of more mentally ill persons in jails than hospitals or parked in emergency rooms awaiting an available bed. County jails and emergency rooms are not equipped with the proper resources nor were they designed to evaluate and treat the mentally ill. Short-term involuntary treatment is available only to stabilize the individual and often does not provide an ample amount of time for a patient to get treatment. There is no question that we must do more to invest in community recourses and provide early intervention. This bill seeks to support individuals that face serious health risks by ensuring that they have the opportunity and resources to manage medical issues that are or can become complicated and acute without medical treatment.

Arguments in Support:

The California Psychiatric Association (CPA), sponsor of this bill, states that when an individual with a mental disorder lacks the capacity to provide for their basic human needs of food, clothing, and shelter, the law considers them gravely disabled and allows treatment over objection of the patient in order to stabilize their mental illness, restore their capacity, and reduce the risk of harm the individual exposes themselves to. However, current law fails to address the needs of those individuals with a mental illness who lack the capacity to provide for their medical needs. Many of these individuals will be admitted to a psychiatric inpatient unit under a 72-hour, 5150 hold. Subsequently, the patient may be certified for a further 14-day period of intensive treatment under a 5250 hold if the treatment team feels like the individual cannot be safely released into the community after 72 hours. The 5250 certification is subject to court scrutiny. The certification may be upheld by a hearing officer, or the officer may find insufficient evidence justifying the certification and the patient will be ordered released. Psychiatrists will often certify a severely mentally ill patient with serious health issues for a 5250 and provide evidence of the seriousness of their health condition and their inability to care for it. In conclusion, CPA states current law prevents the hearing officer from considering that evidence resulting in unsafe release because it creates a blindness relative to the physical health condition of the patient. This bill would correct this situation by allowing evidence of a person's medical condition to be introduced into evidence and considered in the release determination.

Arguments in Opposition:

Access California, in opposition, states that the LPS Act specifically limits involuntary commitment to those who are gravely disabled due to a severe mental health condition and not physical health. This bill would create a slippery slope where persons with a medical condition, who also happen to have a mental health condition, would be subject to involuntary confinement in a mental health facility, which is a clear violation of the civil rights of those with serious medical conditions who may have an array of reasons for the severity of their medical condition unrelated to their mental health. In conclusion, Access California states that this bill is an unreasonable expansion of California's involuntary commitment laws to a population which would not be appropriately served under the LPS Act.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, the overall effect of this bill on state trial courts is unknown. If the bill leads to a higher number of case filings for subsequent 14-day holds, 30-day holds and conservatorships, there could be additional General Fund cost pressure on trial courts. If granting additional 14-day holds allows for more successful treatment at an earlier stage, as the author intends, and leads to fewer subsequent hearings, pressure on trial courts could be reduced.

VOTES:

ASM HEALTH: 15-0-0

YES: Wood, Mayes, Aguiar-Curry, Bigelow, Bonta, Burke, Carrillo, Flora, Limón, McCarty, Nazarian, Ramos, Rodriguez, Santiago, Waldron

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

UPDATED:

VERSION: May 20, 2020

CONSULTANT: Judith Babcock / HEALTH / (916) 319-2097 FN: 0002816

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2015

Author:(Eggman) – As Amended Ver:May 20, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill allows individuals presenting evidence at a certification review hearing for a 14-day involuntary mental health hold to include information regarding the medical condition of the person subject to the hold and how that condition bears on certifying the person as a danger to themselves or to others or as gravely disabled.

It also requires this information to be considered by the hearing officer in the determination of probable cause for an involuntary hold.

FISCAL EFFECT:

The overall effect of this bill on state trial courts is unknown. If the bill leads to a higher number of case filings for subsequent 14-day holds, 30-day holds and conservatorships, there could be additional GF cost pressure on trial courts. If granting additional 14-day holds allows for more successful treatment at an earlier stage, as the author intends, and leads to fewer subsequent hearings, pressure on trial courts could be reduced.

COMMENTS:

1. Purpose. According to the author, psychiatrists say they often felt they had to release patients who no longer met the current criteria for a hold although the patient was disabled by a mental illness so severe that they lacked the capacity to manage their health issues and to seek sufficient medical care. The author notes those experiencing severe mental illness cycle through a revolving door of crisis intervention, stabilization, incarceration or hospitalization, and release. This bill will allow information about a person’s medical condition to be presented and inform whether the person is certified for an involuntary hold as a danger to themselves or others.
2. Background. An officer or clinician may involuntarily detain a person who, as the result of a mental disorder , is a danger to themselves or a danger to others, or is gravely disabled. Current law defines "gravely disabled" for these purposes as a condition in which a person, as a result of a mental health disorder, is unable to provide for their basic personal needs for food, clothing or shelter.  The law also creates a series of processes for individuals to receive mental health treatment while being held involuntarily through what is commonly known as a 72-hour "5150 hold," after the Welfare and Institutions Code (WIC) section 5150.

A person may be released after the 72-hour 5150 hold or, depending upon the condition of the person and whether they continue to pose a danger to themselves or others, they could be held for two additional 14-day holds (pursuant to WIC section 5250 or 5260), a 30-day hold or a 180-day hold. The court can also compel a Lanterman-Petris-Short (LPS) conservatorship, whereby a conservator is appointed to make legal decisions for the person. This lasts for one year and is renewable.

These processes attempt to balance individual liberty with the need to protect both individuals themselves and the community from behaviors that may endanger life. There are reviews at each step of the process to ensure appropriateness of continued involuntary detention.

This bill amends the “5250 hold” process for an initial involuntary 14-day hold, directly subsequent to the initial 72-hour hold. Under WIC section 5250 and related statutes a person can be held for an additional 14 days if they are a danger to self or others, if they are admitted into a facility designated for such holds by the county and if they are unwilling to accept voluntary treatment. A certification for such a hold must be signed by two specified medical or mental health professionals and a certification review hearing must be conducted unless judicial review is requested.

The certification review hearing is conducted by a court-appointed commissioner or referee or a certification review hearing officer who meets specified qualifications. At this hearing, the director of the designated facility presents evidence in support of the certification and a district attorney or county counsel may also elect to present evidence. This bill would allow any of those persons to present as evidence information regarding the person’s medical condition and how that condition bears on the certification of the person as either a danger to themselves or others or gravely disabled.

By explicitly allowing the presentation of additional evidence and requiring it to be considered, this bill is intended to increase the number of successful holds in situations where an individual’s medical condition poses a danger to themselves or others and the individual is unable to properly care for the condition as a result of a mental health disorder.

1. Related Legislation. AB 1976 (Eggman), pending in this committee, modifies existing law related to the Assisted Outpatient Treatment Demonstration Project (AOT, also known as Laura’s Law).

AB 2679 (Gallagher), pending in the Assembly Health Committee, and SB 1251 (Moorlach), pending in the Senate Judiciary Committee, both authorize additional counties to establish a “housing conservatorship” process.

AB 2899 (Jones-Sawyer), pending in the Assembly Health Committee, authorizes the extension of time a person may be certified for intensive treatment following an initial 72 hour hold for a period longer than the existing 14 days.

1. Prior Legislation. Many bills related to the topic addressed by AB 2015 has been introduced in recent years. The most closely related include the following:

AB 1971 (Santiago, Friedman, and Chen), of the 2017-18 Legislative Session, would have expanded the definition of “gravely disabled” in the county of Los Angeles until January 1, 2024, to include a person’s inability to provide for their basic personal needs for medical treatment, as specified, and contained specified reporting requirements. AB 1971 died on the Senate inactive file.

AB 1572 (Chen) and SB 640 (Moorlach), of the current Legislative Session, change the definition of “gravely disabled” to include the risk of harm as a result of inability to make informed decisions because of a mental disorder. AB 1572 and SB 640 failed passage in Senate Health Committee and AB 1572 was referred to Assembly Health Committee and never heard.

SB 1045 (Weiner), Chapter 845, Statutes of 2018, and SB 40 (Weiner), Chapter 467, Statutes of 2019, each established a pilot program, until January 1, 2024, for Los Angeles and San Diego Counties, and the City and County of San Francisco, respectively, upon authorization by their respective boards of supervisors, to implement a “housing conservatorship” procedure for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and substance us disorder, as evidenced by eight or more 5150 detentions in a 12-month period for evaluation and treatment.

AB 1194 (Eggman), Chapter 570, Statutes of 2015, requires, for purposes of determining whether a person is a danger to self or others, an individual making that determination to consider available relevant information about the historical course of the person’s mental disorder if the individual concludes that the information has a reasonable bearing on the determination, and prohibits the individual from being limited to consideration of the danger of imminent harm.

SB 364 (Steinberg), Chapter 567, Statues of 2014, made several reforms and updates to the LPS Act.

1. Support. The California Psychiatric Association (CPA), sponsor of this bill, states that current law fails to address the needs of those individuals with a mental illness who lack the capacity to provide for their medical needs. They say psychiatrists will often certify a severely mentally ill patient with serious health issues for a 5250 hold and provide evidence of the seriousness of their health condition and their inability to care for it, but current law prevents the hearing officer from considering that evidence. CPA contends this restriction results in unsafe release because it creates a blindness relative to the physical health condition of the patient. Other supporters include the California Psychological Association, California Treatment Advocacy Coalition, and individual health care provider organizations.
2. Opposition. Opponents include the California Behavioral Health Planning Council and Cal Voice (formerly NorCal MHA). They express concern about institutionalization at the expense of individual civil liberties and express the belief that any effort to institutionalize an individual involuntarily is counterproductive to the wellness and recovery model that California embraces, which allows an individual to choose how, when and where they are to receive services and treatment related to mental health and substance use.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: May 18, 2020

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 2015

Author:(Eggman) – As Amended Ver:March 10, 2020

SUBJECT: Certification for intensive treatment: review hearing.

SUMMARY: Authorizes the evidence presented in support of certification of an individual for involuntary detention by determination as a danger to themselves or others or gravely disabled, under what is known as a 5250 hold, for no more than 14 days of intensive treatment related to mental health disorders or impairment by chronic alcoholism, to include information regarding the person’s medical condition and how that condition bears on the certification of the person as either a danger to themselves or others or gravely disabled. Requires the hearing officer to consider the information in the determination of probable cause for certification.

EXISTING LAW:

1. Establishes the Lanterman-Petri-Short Act (LPS) to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. (See Background section for a more comprehensive description of the LPS process.)
2. Defines “gravely disabled” as a condition in which a person, as a result of a mental disorder or impairment by chronic alcoholism, is unable to provide for their basic personal needs for food, clothing, or shelter, or a condition in which a person has been found mentally incompetent, as specified.
3. Defines “a danger to himself or herself or others, or gravely disabled” to also refer to the condition of being a danger to self or others, or gravely disabled, as a result of the use of controlled substances rather than by mental disorder.
4. Provides that if a person is gravely disabled as a result of mental illness, or a danger to self or others, then a peace officer, staff of a designed treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, place that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention or placement in a designated treatment facility.
5. Allows a person who has been detained for 72 hours to be detained for up to an additional 14 days of intensive treatment if the person continues to pose a danger to self or others, or is gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. Allows a person who has been detained for 14 days of intensive treatment to be detained for up to 30 additional days of intensive treatment if the person remains gravely disabled and is unwilling or unable to voluntarily accept treatment.
6. Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend an LPS conservatorship to the county conservatorship investigator for a person who is gravely disabled and is unwilling or unable to voluntarily accept treatment, and requires the conservatorship investigator, if the investigator concurs with the recommendation, to petition the superior court to establish an LPS conservatorship. Grants to the person for whom the LPS conservatorship is sought the right to demand a court or jury trial on the issue of whether they are gravely disabled.
7. Allows, under the LPS Act, a court to order an imminently dangerous person to be confined for further inpatient intensive health treatment for an additional 180 days, as provided.
8. Deems a person not gravely disabled, for purposes of an involuntary hold for up to an additional 14-day intensive treatment and appointment of a conservator, if the person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide the person’s basic personal needs for food, clothing, or shelter.
9. Requires that a conservator under an LPS conservatorship place the conservatee in the least restrictive alternative placement, as provided. Gives the LPS conservator the right, if specified in the court order, to require the conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatees being gravely disabled.

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, psychiatrists identified that they often felt they had to release patients that no longer met the current criteria for a hold although the patient was so disabled by a severe mental illness that they lacked the capacity to manage their health issues and to seek sufficient medical care. The failure in the law to specifically address this means patients suffering from a debilitating mental illness miss the opportunity to receive adequate and extended medical care while receiving treatment for their mental health condition. Unfortunately, those experiencing severe mental illness in our communities cycle through a revolving door of crisis intervention, stabilization, incarceration or hospitalization, and release. A shortage of services has resulted in a rise of more mentally ill persons in jails than hospitals or parked in emergency rooms awaiting an available bed. County jails and emergency rooms are not equipped with the proper resources nor were they designed to evaluate and treat the mentally ill. Short-term involuntary treatment is available only to stabilize the individual and often does not provide an ample amount of time for a patient to get treatment. There is no question that we must do more to invest in community recourses and provide early intervention. This bill seeks to support individuals that face serious health risks by ensuring that they have the opportunity and resources to manage medical issues that are or can become complicated and acute without medical treatment.
2. BACKGROUND.
   1. LPS Act. The LPS Act was signed into law in 1967 and provides for involuntary commitment for varying lengths of time for the purpose of treatment and evaluation, provided certain requirements are met. Additionally, the LPS Act provides for LPS conservatorships, resulting in involuntary commitment for the purposes of treatment if an individual is found to meet the criteria of being a danger to themselves or others or is gravely disabled as defined. The LPS Act provides for a conservator of the person, of the estate, or of both the person and the estate for a person who is gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism or use of controlled substances. The person for whom such a conservatorship is sought has the right to demand a court or jury trial on the issue of whether they meet the gravely disabled requirement. The purpose of an LPS conservatorship is to provide individualized treatment, supervision, and placement for the gravely disabled person. Current law also deems a person as not being gravely disabled for purposes of a conservatorship if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. The LPS Act, along with the court ordered outpatient services available through Laura’s Law provides a robust system for mandating intensive inpatient and outpatient care, along with general oversight, for those who may not be able to care for themselves.
      1. 5150’s. Typically one first interacts with the LPS Act through what is known as a 5150 hold, which allows a peace officer or other authorized individual as specified to commit a person for an involuntary detention of up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a threat to self or others, or gravely disabled. The peace officer or other authorized individual who initially detains the individual must determine and document that the individual meets this standard. When making the determination, the peace officer or other authorized person may consider the individual’s historical course, which includes evidence presented by a person who has provided or is providing mental health or related support services to the person on the 5150 hold; evidence presented by one or more members of the family of the person on the 5150 hold; and, evidence presented by the person on the 5150 hold, or anyone designated by that person, if the historical course of the person’s mental disorder has a reasonable bearing on making a determination that the person requires a 5150 hold.
      2. 5250’s. Following the 72-hour hold under a 5150, a person may be certified for intensive treatment, which initially permits a hold for an additional period not to exceed 14-days, without court review, if they are found to still be a danger to self or others, or gravely disabled. When determining whether the person is eligible for a 14-day hold, the professional staff of the agency or facility providing evaluation services must find that the person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis. A notice of certification is required for all persons certified for intensive treatment, and a copy of the notice for certification is required to be personally delivered to the person certified, the person’s attorney, or the attorney or advocate, as specified.
      3. 5270’s. If, after the initial 14 days, a person is still found to remain gravely disabled and unwilling or unable to accept voluntary treatment, the person may be certified for an additional period of not more than 30 days of intensive treatment. A person cannot be found at this point to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. 
      4. 5350’s. At the expiration of the 14 days period (or subsequent 30 day period) of intensive treatment, a person may be confined for further treatment under the LPS for an additional period, not to exceed 180 days if one of the following exists:
         1. They have attempted, inflicted, or made a serious threat of substantial physical harm to either themselves or another after having been taken into custody, and while in custody, and who, as a result of mental disorder, presents a demonstrated danger of inflicting substantial physical harm upon others;
         2. They have attempted, or inflicted physical harm to themselves or another that resulted in them being taken into custody, and who presents, as a result of mental disorder, a demonstrated danger of inflicting substantial physical harm upon others; and,
         3. They have made a serious threat of substantial physical harm to themselves or another within seven days of being taken into custody, that threat having at least in part resulted in their being taken into custody, and they present, as a result of mental disorder, a demonstrated danger of inflicting substantial harm to others.
      5. 5450’s. Enacted through the passage of AB 1045 (Weiner) Chapter 845, Statutes of 2018 and AB 40 (Weiner), Chapter 467, Statutes of 2019, the counties of San Francisco, San Diego and Los Angeles, with approval from respective county board of supervisors, may establish a five-year pilot program creating a new “housing conservatorship” for individuals who are unable to care for themselves due to serious mental illness and substance use disorder (SUD) and who could not be sufficiently helped under previously existing law. If the board of supervisors of a designated county elects to participate and meets specified criteria for establishing the pilot, a conservator for a person, who is incapable of caring for their own health and well-being due to a serious mental illness and SUD, as evidenced by at least eight detentions in a 12 month period for evaluation and treatment under a 72 involuntary hold (a 5150 hold), may be established, if specified requirements are met.
   2. Joint Legislative Audit Committee (JLAC). At its June 26, 2019, hearing, JLAC approved a request by Senator Henry Stern to conduct a comprehensive audit of the LPS Act. Expected to be released in late April 2020, the goal of the audit is to examine application of the LPS Act throughout the state to determine if any updates, clarifications or improvements are needed to ensure the equal application of California’s mental health commitment procedures. Because each county has its own administrative infrastructure, budget, and significantly different levels and types of mental health services available, this audit should ultimately result in a better understanding of how California’s involuntary patient population is being determined and how they are receiving care.

Under the audit, three counties, including Los Angeles County and two counties chosen by the State Auditor, will be reviewed as follows:

• • 1. A review and evaluation of the laws, rules, and regulations significant to the audit objectives;
    2. A review of the statewide oversight of the implementation of the LPS Act;
    3. Collection of specific LPS data for each of the counties for the most recent three years, including the following:
       1. Number of individuals placed under involuntary holds, referral sources for those holds and number of individuals placed under consecutive initial holds;
       2. The number of individuals placed under subsequent holds;
       3. The number of individuals placed into new and renewed conservatorships;
       4. The average length of conservatorships; and,
       5. The number of terminated conservatorships and the reasons for the termination;
    4. An assessment of the counties’ implementation of the LPS Act for the last three years and comparison of the counties to one another by reviewing at least the following:
       1. The counties’ definition of the criteria for involuntary treatment holds (probable cause, mental disorder, and danger to self or others, grave disability) and whether each county has consistently applied its definitions; and,
       2. The counties’ criteria for placing individuals into conservatorship and making least restrictive environment determinations, and whether the counties have consistently followed those criteria.
    5. A determination of how the counties fund their implementation of the LPS Act and whether access to funding is a barrier to LPS implementation;
    6. An assessment of the availability of treatment resources in each county and to the extent possible determination of whether there are barriers to achieving the intent of the LPS Act; and,
    7. A review and assessment of any other issues that are significant to the audit.
  1. Administration and Legislative Focus on Mental Health. Governor Newsom’s 2020 State of the State address focused almost entirely on how California can better serve its constituents – particularly, the homeless, the mentally ill and those suffering from other behavioral health issues such as substance use abuse. Governor Newsom stated, “Let’s call it what it is, a disgrace that the richest state in the richest nation – succeeding across so many sectors is failing to properly house, heal, and humanely treat so many of its own people.” As with any complex issue, there is no single solution. A multi-faceted approach to address the systemic problems of homelessness, mental health and SUD must be considered. To that end, there are a number of efforts underway within both the administration and the Legislature.

The Governor’s administration is evaluating the Mental Health Services Act (MHSA) and LPS Act, both of which were established decades ago. The Administration is expected to release recommendations for reform or modification of both these landmark programs later this spring, some of which may necessitate ballot initiatives. Additionally, a California Health and Human Services Agency Behavioral Health Task Force has been established for the purpose of addressing the urgent mental health and SUD needs across California. The Task Force will advise the Administration’s effort to advance statewide behavioral health services, prevention, and early intervention to stabilize conditions before they become more severe. The Department of Health Care Services through its multi-year initiative, California Advancing and Innovating Medi-Cal (CalAIM), is breaking new ground in efforts to revise the existing Medi-Cal program to improve the quality of life and health outcomes of our population by implementing broad delivery system, program and payment reform. Significant efforts within CalAIM are aimed at behavioral health reform promoting a more patient centric model of care for individuals suffering from mental illness and/or SUDs.

The Legislature is evaluating the effectiveness of the LPS system, through the above referenced JLAC audit. Once the audit is released there are no fewer than a dozen bills poised and ready to serve as vehicles aimed at addressing provisions of the LPS identified in the audit as needing reform. Additionally, several bills have been introduced that seek to broaden the locales and types of mental health services which may be provided under the MHSA beyond that which the original initiative authorized.

1. SUPPORT. The California Psychiatric Association (CPA), sponsor of this bill, states that when an individual with a mental disorder lacks the capacity to provide for their basic human needs of food, clothing, and shelter, the law considers them gravely disabled and allows treatment over objection of the patient in order to stabilize their mental illness, restore their capacity, and reduce the risk of harm the individual exposes themselves to. However, current law fails to address the needs of those individuals with a mental illness who lack the capacity to provide for their medical needs. Many of these individuals will be admitted to a psychiatric inpatient unit under a 72-hour, 5150 hold. Subsequently, the patient may be certified for a further 14-day period of intensive treatment under a 5250 hold if the treatment team feels like the individual cannot be safely released into the community after 72 hours. The 5250 certification is subject to court scrutiny. The certification may be upheld by a hearing officer, or the officer may find insufficient evidence justifying the certification and the patient will be ordered released. Psychiatrists will often certify a severely mentally ill patient with serious health issues for a 5250 and provide evidence of the seriousness of their health condition and their inability to care for it. In conclusion, CPA states current law prevents the hearing officer from considering that evidence resulting in unsafe release because it creates a blindness relative to the physical health condition of the patient. This bill would correct this situation by allowing evidence of a person’s medical condition to be introduced into evidence and considered in the release determination.

1. SUPPORT, IF AMENDED. The California Hospital Association (CHA) in a support if amended position, states that this bill proposes allowing information about a person’s medical status and how it bears on their ability to survive safely without involuntary detention to be considered by the officer presiding over a certification hearing. Under existing law, a patient on a psychiatric hold retains their right to consent to or refuse medical care. Freestanding, acute psychiatric hospitals, where many of these patients are treated, specialize in providing acute psychiatric, not medical, health care. If patients are detained because of a medical condition, hospitals would be forced to go through a separate, lengthy court process to seek authorization to treat the refusing patient’s medical condition, release them, or to appoint a conservator. Not only would this delay access to medically necessary care, but it is time and cost prohibitive. CHA concludes by stating the bill should be amended to: a) clarify that the information about medical status may be presented to support involuntary detention to treat the mental health disorder or chronic alcoholism and that treating the behavioral health issue is key to eventually resolving any medical issues; b) allow the patient to be detained while being transferred to or receiving services at a facility that can provide diagnosis or treatment of the medical condition; and, c) require the patient receive a referral for continuing medical treatment upon discharge release from the involuntary detention.
2. OPPOSE. Access California in opposition states that the LPS Act specifically limits involuntary commitment to those who are gravely disabled due to a severe mental health condition and not physical health. This bill would create a slippery slope where persons with a medical condition, who also happen to have a mental health condition, would be subject to involuntary confinement in a mental health facility, which is a clear violation of the civil rights of those with serious medical conditions who may have an array of reasons for the severity of their medical condition unrelated to their mental health. In conclusion, Access California states that this bill is an unreasonable expansion of California’s involuntary commitment laws to a population which would not be appropriately served under the LPS Act.
3. RELATED LEGISLATION.
   1. AB 1976 (Eggman) modifies existing law related to the Assisted Outpatient Treatment Demonstration Project (AOT or also known as Laura’s Law) by authorizing a county to offer the mental health programs in combination with one or more counties. Requires a county or group of counties to offer those mental health programs unless a county opts out by a resolution passed by the governing body stating the reasons for opting out and any facts or circumstances relied on in making that decision. Repeals the expiration of Laura’s Law, thereby extending it indefinitely. AB 1976 is pending hearing in the Assembly Health Committee.
   2. AB 2679 (Gallagher) adds the County of Butte to those counties authorized until January 1, 2024, through the passage of SB 1045 (Weiner) and SB 40 (Weiner), to establish a “housing conservatorship” process, if the board of supervisors authorizes the application of these provisions subject to specified requirements, for the appointment of a conservator for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and SUD, as specified. AB 2679 is pending hearing in the Assembly Health Committee.
   3. AB 2899 (Jones-Sawyer) authorizes the extension of time a person may be certified for intensive treatment following an initial 72 hour hold for a period longer than the existing 14 days, as determined by the professional staff providing the evaluation related to the mental health disorder or impairment by chronic alcoholism and that the professional staff providing the evaluation has analyzed the person’s condition and has found the person is, as a result of a mental health disorder or impairment by chronic alcoholism, a danger to others, or to self, or gravely disabled, and that the person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis. AB 2899 is pending hearing in the Assembly Health Committee.
   4. SB 1251 (Moorlach) authorizes the expansion of the housing conservatorship pilot project process authorized through passage of SB 1045 (Weiner) and SB 40 (Weiner) for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and SUD, to any county or city and county to adopt these conservatorship provisions within their jurisdictions. SB 1251 has been double referred to Senate Committees on Judiciary and Public Safety.
4. PREVIOUS LEGISLATION.
5. AB 1275 (Santiago) of 2019, would have required each county to establish an outreach team to provide outreach services to individuals with a history of mental illness or SUD who are unable to provide for urgently needed medical care and who are homeless or at risk of experiencing homelessness. AB 1275 died on the Senate inactive file.
6. AB 1572 (Chen) and SB 640 (Moorlach) of 2019, would have changed the definition of “gravely disabled” to mean a condition in which a person, as a result of a mental health disorder, is incapable of making informed decisions about, or providing for, the person’s own basic personal needs for food, clothing, shelter without significant supervision and assistance from another person and, as a result of being incapable of making these informed decisions, the person is at risk of substantial bodily harm, dangerous worsening of a concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of the person’s essential needs that could result in bodily harm. AB 1572 and SB 640 died pursuant to Joint Rules 56.
7. SB 590 (Stone) of 2019, would have added persons with chronic alcoholism to the existing prepetition screening process in the LPS Act that permits any individual to request a county-designated entity to provide a comprehensive screening to determine if the person impaired by chronic alcoholism is a danger to self or others, or gravely disabled. SB 590 died in the Assembly Appropriations.
8. AB 1971 (Santiago, Friedman, and Chen) of 2018, would have expanded the definition of “gravely disabled” in the county of Los Angeles until January 1, 2024, to include a person’s inability to provide for their basic personal needs for medical treatment, as specified, and contained specified reporting requirements. AB 1971 died on the Senate inactive file.
9. SB 1045 (Weiner) and SB 40 (Weiner), established a pilot program, until January 1, 2024, for Los Angeles and San Diego Counties, and the City and County of San Francisco, upon authorization by their respective boards of supervisors, to implement a “housing conservatorship” procedure for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and substance us disorder, as evidenced by eight or more 5150 detentions in a 12 month period for evaluation and treatment.
10. SB 565 (Portantino), Chapter 218, Statutes of 2017, requires a mental health facility to make reasonable attempts to notify family members or any other person designated by the patient at least 36 hours prior to a review hearing for certification to be held involuntarily for an extended 14 days or 30 days, after an initial 5150 hold, as specified.
11. AB 191 (Wood), Chapter 184, Statutes of 2017, adds licensed marriage and family therapists and licensed professional clinical counselors to the list of authorized health providers permitted to sign a notice of certification when a patient is certified as needing intensive treatment pursuant to a 5150 hold.
12. AB 1539 (Chen) of 2017, would have expanded the definition of “gravely disabled” to include an individual who is unable to provide for his or her basic need for medical care as a result of a mental health disorder or chronic alcoholism. AB 1539 was not heard in the Assembly Health Committee.
13. AB 1194 (Eggman), Chapter 570, Statutes of 2015, requires, for purposes of determining whether a person is a danger to self or others, an individual making that determination to consider available relevant information about the historical course of the person’s mental disorder if the individual concludes that the information has a reasonable bearing on the determination, and prohibits the individual from being limited to consideration of the danger of imminent harm.
14. SB 364 (Steinberg), Chapter 567, Statues of 2014, makes several changes to the LPS Act regarding involuntary commitment that ensures clarity and consistency in the 5150 process to enable people with a mental health disorder or chronic alcoholism to obtain assessment, referral, and treatment as appropriate in the least restrictive setting as possible; broadened the types of facilities a county can designate for 5150 purposes; and encouraged counties to provide training of personnel authorized to write and release 5150 holds.
15. AMENDMENTS: In an effort to remove opposition to the bill, the author has agreed to the following amendments.
16. Medical Treatment only for the Duration of Mental Health Hold. The author wishes to clarify that an individual receiving both mental health and physical health services under an involuntary LPS mental health hold may not be detained longer than the duration of treatment for the mental health diagnosis as follows:

“If at the conclusion of the certification review hearing the person conducting the hearing finds that there is probable cause that the person certified is, as a result of a mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled, then the person may be detained for involuntary care, protection, and treatment related to the mental disorder or impairment by chronic alcoholism pursuant to Sections 5250 and 5270.15. However, this section shall not be interpreted to allow a patient to be detained longer than otherwise allowed for diagnosis or treatment of their mental health condition.”

1. Need for Ongoing Medical Care: The author wishes to clarify that when individuals who have been receiving both medical and mental health treatment, but are discharged from the LPS hold, they are informed of the recommendation to continue receiving medical care, as follows:

“….. Nothing herein shall prohibit the person from remaining at the facility on a voluntary basis or prevent the facility from providing the person with appropriate referral information concerning mental health services. If the person needs continuing medical treatment after the involuntary detention to treat the mental health disorder or chronic alcoholism is terminated, the facility’s medical director or designee shall inform the patient that continuing medical treatment is recommended.

REGISTERED SUPPORT / OPPOSITION:

Support

California Psychiatric Association (sponsor)

California Psychological Association

California Treatment Advocacy Coalition

Crestwood Behavioral Health, Inc.

Sutter Health

Tenet Healthcare Corporation

Opposition

California Behavioral Health Planning Council

Cal Voice (formerly NorCal MHA)

Analysis Prepared by: Judith Babcock / HEALTH / (916) 319-2097

Date of Hearing: March 17, 2020

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 2015

Author:(Eggman) – As Amended Ver:March 10, 2020

SUBJECT: Certification for intensive treatment: review hearing.

SUMMARY: Authorizes the evidence presented in support of certification of an individual for involuntary detention by determination as a danger to themselves or others or gravely disabled, under what is known as a 5250 hold, for no more than 14 days of intensive treatment related to mental health disorders or impairment by chronic alcoholism, to include information regarding the person’s medical condition and how that condition bears on the certification of the person as either a danger to themselves or others or gravely disabled. Requires the hearing officer to consider the information in the determination of probable cause for certification.

EXISTING LAW:

1. Establishes the Lanterman-Petri-Short Act (LPS) to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. (See Background section for a more comprehensive description of the LPS process.)
2. Defines “gravely disabled” as a condition in which a person, as a result of a mental disorder or impairment by chronic alcoholism, is unable to provide for their basic personal needs for food, clothing, or shelter, or a condition in which a person has been found mentally incompetent, as specified.
3. Defines “a danger to himself or herself or others, or gravely disabled” to also refer to the condition of being a danger to self or others, or gravely disabled, as a result of the use of controlled substances rather than by mental disorder.
4. Provides that if a person is gravely disabled as a result of mental illness, or a danger to self or others, then a peace officer, staff of a designed treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, place that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention or placement in a designated treatment facility.
5. Allows a person who has been detained for 72 hours to be detained for up to an additional 14 days of intensive treatment if the person continues to pose a danger to self or others, or is gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. Allows a person who has been detained for 14 days of intensive treatment to be detained for up to 30 additional days of intensive treatment if the person remains gravely disabled and is unwilling or unable to voluntarily accept treatment.
6. Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend an LPS conservatorship to the county conservatorship investigator for a person who is gravely disabled and is unwilling or unable to voluntarily accept treatment, and requires the conservatorship investigator, if the investigator concurs with the recommendation, to petition the superior court to establish an LPS conservatorship. Grants to the person for whom the LPS conservatorship is sought the right to demand a court or jury trial on the issue of whether they are gravely disabled.
7. Allows, under the LPS Act, a court to order an imminently dangerous person to be confined for further inpatient intensive health treatment for an additional 180 days, as provided.
8. Deems a person not gravely disabled, for purposes of an involuntary hold for up to an additional 14-day intensive treatment and appointment of a conservator, if the person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide the person’s basic personal needs for food, clothing, or shelter.
9. Requires that a conservator under an LPS conservatorship place the conservatee in the least restrictive alternative placement, as provided. Gives the LPS conservator the right, if specified in the court order, to require the conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee’s being gravely disabled.

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, psychiatrists identified that they often felt they had to release patients that no longer met the current criteria for a hold although the patient was so disabled by a severe mental illness that they lacked the capacity to manage their health issues and to seek sufficient medical care. The failure in the law to specifically address this means patients suffering from a debilitating mental illness miss the opportunity to receive adequate and extended medical care while receiving treatment for their mental health condition. Unfortunately, those experiencing severe mental illness in our communities cycle through a revolving door of crisis intervention, stabilization, incarceration or hospitalization, and release. A shortage of services has resulted in a rise of more mentally ill persons in jails than hospitals or parked in emergency rooms awaiting an available bed. County jails and emergency rooms are not equipped with the proper resources nor were they designed to evaluate and treat the mentally ill. Short-term involuntary treatment is available only to stabilize the individual and often does not provide an ample amount of time for a patient to get treatment. There is no question that we must do more to invest in community recourses and provide early intervention. This bill seeks to support individuals that face serious health risks by ensuring that they have the opportunity and resources to manage medical issues that are or can become complicated and acute without medical treatment.
2. BACKGROUND.
   1. LPS Act. The LPS Act was signed into law in 1967 and provides for involuntary commitment for varying lengths of time for the purpose of treatment and evaluation, provided certain requirements are met. Additionally, the LPS Act provides for LPS conservatorships, resulting in involuntary commitment for the purposes of treatment if an individual is found to meet the criteria of being a danger to themselves or others or is gravely disabled as defined. The LPS Act provides for a conservator of the person, of the estate, or of both the person and the estate for a person who is gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism or use of controlled substances. The person for whom such a conservatorship is sought has the right to demand a court or jury trial on the issue of whether they meet the gravely disabled requirement. The purpose of an LPS conservatorship is to provide individualized treatment, supervision, and placement for the gravely disabled person. Current law also deems a person as not being gravely disabled for purposes of a conservatorship if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. The LPS Act, along with the court ordered outpatient services available through Laura’s Law provides a robust system for mandating intensive inpatient and outpatient care, along with general oversight, for those who may not be able to care for themselves.
      1. 5150’s. Typically one first interacts with the LPS Act through what is known as a 5150 hold, which allows a peace officer or other authorized individual as specified to commit a person for an involuntary detention of up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a threat to self or others, or gravely disabled. The peace officer or other authorized individual who initially detains the individual must determine and document that the individual meets this standard. When making the determination, the peace officer or other authorized person may consider the individual’s historical course, which includes evidence presented by a person who has provided or is providing mental health or related support services to the person on the 5150 hold; evidence presented by one or more members of the family of the person on the 5150 hold; and, evidence presented by the person on the 5150 hold, or anyone designated by that person, if the historical course of the person’s mental disorder has a reasonable bearing on making a determination that the person requires a 5150 hold.
      2. 5250’s. Following the 72-hour hold under a 5150, a person may be certified for intensive treatment, which initially permits a hold for an additional period not to exceed 14-days, without court review, if they are found to still be a danger to self or others, or gravely disabled. When determining whether the person is eligible for a 14-day hold, the professional staff of the agency or facility providing evaluation services must find that the person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis. A notice of certification is required for all persons certified for intensive treatment, and a copy of the notice for certification is required to be personally delivered to the person certified, the person’s attorney, or the attorney or advocate, as specified.
      3. 5270’s. If, after the initial 14 days, a person is still found to remain gravely disabled and unwilling or unable to accept voluntary treatment, the person may be certified for an additional period of not more than 30 days of intensive treatment. A person cannot be found at this point to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. 
      4. 5350’s. At the expiration of the 14 days period (or subsequent 30 day period) of intensive treatment, a person may be confined for further treatment under the LPS for an additional period, not to exceed 180 days if one of the following exists:
         1. They have attempted, inflicted, or made a serious threat of substantial physical harm to either themselves or another after having been taken into custody, and while in custody, and who, as a result of mental disorder, presents a demonstrated danger of inflicting substantial physical harm upon others;
         2. They have attempted, or inflicted physical harm to themselves or another that resulted in them being taken into custody, and who presents, as a result of mental disorder, a demonstrated danger of inflicting substantial physical harm upon others; and,
         3. They have made a serious threat of substantial physical harm to themselves or another within seven days of being taken into custody, that threat having at least in part resulted in their being taken into custody, and they present, as a result of mental disorder, a demonstrated danger of inflicting substantial harm to others.
      5. 5450’s. Enacted through the passage of AB 1045 (Weiner) Chapter 845, Statutes of 2018 and AB 40 (Weiner), Chapter 467, Statutes of 2019, the counties of San Francisco, San Diego and Los Angeles, with approval from respective county board of supervisors, may establish a five-year pilot program creating a new “housing conservatorship” for individuals who are unable to care for themselves due to serious mental illness and substance use disorder (SUD) and who could not be sufficiently helped under previously existing law. If the board of supervisors of a designated county elects to participate and meets specified criteria for establishing the pilot, a conservator for a person, who is incapable of caring for their own health and well-being due to a serious mental illness and SUD, as evidenced by at least eight detentions in a 12 month period for evaluation and treatment under a 72 involuntary hold (a 5150 hold), may be established, if specified requirements are met.
   2. Joint Legislative Audit Committee (JLAC). At its June 26, 2019, hearing, JLAC approved a request by Senator Henry Stern to conduct a comprehensive audit of the LPS Act. Expected to be released in late April 2020, the goal of the audit is to examine application of the LPS Act throughout the state to determine if any updates, clarifications or improvements are needed to ensure the equal application of California’s mental health commitment procedures. Because each county has its own administrative infrastructure, budget, and significantly different levels and types of mental health services available, this audit should ultimately result in a better understanding of how California’s involuntary patient population is being determined and how they are receiving care.

Under the audit, three counties, including Los Angeles County and two counties chosen by the State Auditor, will be reviewed as follows:

• • 1. A review and evaluation of the laws, rules, and regulations significant to the audit objectives;
    2. A review of the statewide oversight of the implementation of the LPS Act;
    3. Collection of specific LPS data for each of the counties for the most recent three years, including the following:
       1. Number of individuals placed under involuntary holds, referral sources for those holds and number of individuals placed under consecutive initial holds;
       2. The number of individuals placed under subsequent holds;
       3. The number of individuals placed into new and renewed conservatorships;
       4. The average length of conservatorships; and,
       5. The number of terminated conservatorships and the reasons for the termination;
    4. An assessment of the counties’ implementation of the LPS Act for the last three years and comparison of the counties to one another by reviewing at least the following:
       1. The counties’ definition of the criteria for involuntary treatment holds (probable cause, mental disorder, and danger to self or others, grave disability) and whether each county has consistently applied its definitions; and,
       2. The counties’ criteria for placing individuals into conservatorship and making least restrictive environment determinations, and whether the counties have consistently followed those criteria.
    5. A determination of how the counties fund their implementation of the LPS Act and whether access to funding is a barrier to LPS implementation;
    6. An assessment of the availability of treatment resources in each county and to the extent possible determination of whether there are barriers to achieving the intent of the LPS Act; and,
    7. A review and assessment of any other issues that are significant to the audit.
  1. Administration and Legislative Focus on Mental Health. Governor Newsom’s 2020 State of the State address focused almost entirely on how California can better serve its constituents – particularly, the homeless, the mentally ill and those suffering from other behavioral health issues such as substance use abuse. Governor Newsom stated, “Let’s call it what it is, a disgrace that the richest state in the richest nation – succeeding across so many sectors is failing to properly house, heal, and humanely treat so many of its own people.” As with any complex issue, there is no single solution. A multi-faceted approach to address the systemic problems of homelessness, mental health and SUD must be considered. To that end, there are a number of efforts underway within both the administration and the Legislature.

The Governor’s administration is evaluating the Mental Health Services Act (MHSA) and LPS Act, both of which were established decades ago. The Administration is expected to release recommendations for reform or modification of both these landmark programs later this spring, some of which may necessitate ballot initiatives. Additionally, a California Health and Human Services Agency Behavioral Health Task Force has been established for the purpose of addressing the urgent mental health and SUD needs across California. The Task Force will advise the Administration’s effort to advance statewide behavioral health services, prevention, and early intervention to stabilize conditions before they become more severe. The Department of Health Care Services through its multi-year initiative, California Advancing and Innovating Medi-Cal (CalAIM), is breaking new ground in efforts to revise the existing Medi-Cal program to improve the quality of life and health outcomes of our population by implementing broad delivery system, program and payment reform. Significant efforts within CalAIM are aimed at behavioral health reform promoting a more patient centric model of care for individuals suffering from mental illness and/or SUDs.

The Legislature is evaluating the effectiveness of the LPS system, through the above referenced JLAC audit. Once the audit is released there are no fewer than a dozen bills poised and ready to serve as vehicles aimed at addressing provisions of the LPS identified in the audit as needing reform. Additionally, several bills have been introduced that seek to broaden the locales and types of mental health services which may be provided under the MHSA beyond that which the original initiative authorized.

1. SUPPORT. The California Psychiatric Association (CPA), sponsor of this bill, states that when an individual with a mental disorder lacks the capacity to provide for their basic human needs of food, clothing, and shelter, the law considers them gravely disabled and allows treatment over objection of the patient in order to stabilize their mental illness, restore their capacity, and reduce the risk of harm the individual exposes themselves to. However, current law fails to address the needs of those individuals with a mental illness who lack the capacity to provide for their medical needs. Many of these individuals will be admitted to a psychiatric inpatient unit under a 72-hour, 5150 hold. Subsequently, the patient may be certified for a further 14-day period of intensive treatment under a 5250 hold if the treatment team feels like the individual cannot be safely released into the community after 72 hours. The 5250 certification is subject to court scrutiny. The certification may be upheld by a hearing officer, or the officer may find insufficient evidence justifying the certification and the patient will be ordered released. Psychiatrists will often certify a severely mentally ill patient with serious health issues for a 5250 and provide evidence of the seriousness of their health condition and their inability to care for it. In conclusion, CPA states current law prevents the hearing officer from considering that evidence resulting in unsafe release because it creates a blindness relative to the physical health condition of the patient. This bill would correct this situation by allowing evidence of a person’s medical condition to be introduced into evidence and considered in the release determination.

1. SUPPORT, IF AMENDED. The California Hospital Association (CHA) in a support if amended position, states that this bill proposes allowing information about a person’s medical status and how it bears on their ability to survive safely without involuntary detention to be considered by the officer presiding over a certification hearing. Under existing law, a patient on a psychiatric hold retains their right to consent to or refuse medical care. Freestanding, acute psychiatric hospitals, where many of these patients are treated, specialize in providing acute psychiatric, not medical, health care. If patients are detained because of a medical condition, hospitals would be forced to go through a separate, lengthy court process to seek authorization to treat the refusing patient’s medical condition, release them, or to appoint a conservator. Not only would this delay access to medically necessary care, but it is time and cost prohibitive. CHA concludes by stating the bill should be amended to: a) clarify that the information about medical status may be presented to support involuntary detention to treat the mental health disorder or chronic alcoholism and that treating the behavioral health issue is key to eventually resolving any medical issues; b) allow the patient to be detained while being transferred to or receiving services at a facility that can provide diagnosis or treatment of the medical condition; and, c) require the patient receive a referral for continuing medical treatment upon discharge release from the involuntary detention.
2. OPPOSE. Access California in opposition states that the LPS Act specifically limits involuntary commitment to those who are gravely disabled due to a severe mental health condition and not physical health. This bill would create a slippery slope where persons with a medical condition, who also happen to have a mental health condition, would be subject to involuntary confinement in a mental health facility, which is a clear violation of the civil rights of those with serious medical conditions who may have an array of reasons for the severity of their medical condition unrelated to their mental health. In conclusion, Access California states that this bill is an unreasonable expansion of California’s involuntary commitment laws to a population which would not be appropriately served under the LPS Act.
3. RELATED LEGISLATION.
   1. AB 1976 (Eggman) modifies existing law related to the Assisted Outpatient Treatment Demonstration Project (AOT or also known as Laura’s Law) by authorizing a county to offer the mental health programs in combination with one or more counties. Requires a county or group of counties to offer those mental health programs unless a county opts out by a resolution passed by the governing body stating the reasons for opting out and any facts or circumstances relied on in making that decision. Repeals the expiration of Laura’s Law, thereby extending it indefinitely. AB 1976 is pending hearing in the Assembly Health Committee.
   2. AB 2679 (Gallagher) adds the County of Butte to those counties authorized until January 1, 2024, through the passage of SB 1045 (Weiner) and SB 40 (Weiner), to establish a “housing conservatorship” process, if the board of supervisors authorizes the application of these provisions subject to specified requirements, for the appointment of a conservator for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and SUD, as specified. AB 2679 is pending hearing in the Assembly Health Committee.
   3. AB 2899 (Jones-Sawyer) authorizes the extension of time a person may be certified for intensive treatment following an initial 72 hour hold for a period longer than the existing 14 days, as determined by the professional staff providing the evaluation related to the mental health disorder or impairment by chronic alcoholism and that the professional staff providing the evaluation has analyzed the person’s condition and has found the person is, as a result of a mental health disorder or impairment by chronic alcoholism, a danger to others, or to self, or gravely disabled, and that the person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis. AB 2899 is pending hearing in the Assembly Health Committee.
   4. SB 1251 (Moorlach) authorizes the expansion of the housing conservatorship pilot project process authorized through passage of SB 1045 (Weiner) and SB 40 (Weiner) for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and SUD, to any county or city and county to adopt these conservatorship provisions within their jurisdictions. SB 1251 has been double referred to Senate Committees on Judiciary and Public Safety.
4. PREVIOUS LEGISLATION.
5. AB 1275 (Santiago) of 2019, would have required each county to establish an outreach team to provide outreach services to individuals with a history of mental illness or SUD who are unable to provide for urgently needed medical care and who are homeless or at risk of experiencing homelessness. AB 1275 died on the Senate inactive file.
6. AB 1572 (Chen) and SB 640 (Moorlach) of 2019, would have changed the definition of “gravely disabled” to mean a condition in which a person, as a result of a mental health disorder, is incapable of making informed decisions about, or providing for, the person’s own basic personal needs for food, clothing, shelter without significant supervision and assistance from another person and, as a result of being incapable of making these informed decisions, the person is at risk of substantial bodily harm, dangerous worsening of a concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of the person’s essential needs that could result in bodily harm. AB 1572 and SB 640 died pursuant to Joint Rules 56.
7. SB 590 (Stone) of 2019, would have added persons with chronic alcoholism to the existing prepetition screening process in the LPS Act that permits any individual to request a county-designated entity to provide a comprehensive screening to determine if the person impaired by chronic alcoholism is a danger to self or others, or gravely disabled. SB 590 died in the Assembly Appropriations.
8. AB 1971 (Santiago, Friedman, and Chen) of 2018, would have expanded the definition of “gravely disabled” in the county of Los Angeles until January 1, 2024, to include a person’s inability to provide for their basic personal needs for medical treatment, as specified, and contained specified reporting requirements. AB 1971 died on the Senate inactive file.
9. SB 1045 (Weiner) and SB 40 (Weiner), established a pilot program, until January 1, 2024, for Los Angeles and San Diego Counties, and the City and County of San Francisco, upon authorization by their respective boards of supervisors, to implement a “housing conservatorship” procedure for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and substance us disorder, as evidenced by eight or more 5150 detentions in a 12 month period for evaluation and treatment.
10. SB 565 (Portantino), Chapter 218, Statutes of 2017, requires a mental health facility to make reasonable attempts to notify family members or any other person designated by the patient at least 36 hours prior to a review hearing for certification to be held involuntarily for an extended 14 days or 30 days, after an initial 5150 hold, as specified.
11. AB 191 (Wood), Chapter 184, Statutes of 2017, adds licensed marriage and family therapists and licensed professional clinical counselors to the list of authorized health providers permitted to sign a notice of certification when a patient is certified as needing intensive treatment pursuant to a 5150 hold.
12. AB 1539 (Chen) of 2017, would have expanded the definition of “gravely disabled” to include an individual who is unable to provide for his or her basic need for medical care as a result of a mental health disorder or chronic alcoholism. AB 1539 was not heard in the Assembly Health Committee.
13. AB 1194 (Eggman), Chapter 570, Statutes of 2015, requires, for purposes of determining whether a person is a danger to self or others, an individual making that determination to consider available relevant information about the historical course of the person’s mental disorder if the individual concludes that the information has a reasonable bearing on the determination, and prohibits the individual from being limited to consideration of the danger of imminent harm.
14. SB 364 (Steinberg), Chapter 567, Statues of 2014, makes several changes to the LPS Act regarding involuntary commitment that ensures clarity and consistency in the 5150 process to enable people with a mental health disorder or chronic alcoholism to obtain assessment, referral, and treatment as appropriate in the least restrictive setting as possible; broadened the types of facilities a county can designate for 5150 purposes; and encouraged counties to provide training of personnel authorized to write and release 5150 holds.
15. DOUBLE REFERRAL. This bill is double referred. Upon passage in this Committee, this bill will be referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Psychiatric Association (sponsor)

California Treatment Advocacy Coalition

Crestwood Behavioral Health, Inc.

Tenet Healthcare Corporation

Opposition

Access California – A Program of Cal Voices

Analysis Prepared by: Judith Babcock / HEALTH / (916) 319-2097