SENATE COMMITTEE ON HEALTH

Senator Dr. Richard Pan, Chair

BILL NO: SB 640

SUBJECT: Mental health services: gravely disabled persons

SUMMARY:

Adds to the definition of “gravely disabled” for those who are being detained in a hospital that is not a county-designated facility, as specified, a condition in which the person is incapable of making informed decisions about, or providing for, one’s own basic personal needs, as specified.

Existing law:

1. Establishes the Lanterman-Petris-Short (LPS) Act 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. [WIC §5000, et seq.]

1. 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 his or her basic personal needs for food, clothing, or shelter, or a condition in which a person has been found mentally incompetent, as specified, for purposes of detaining the person for assessment, evaluation, and treatment; providing a court-ordered evaluation, as specified; certifying the person for intensive treatment; or, placing the person under conservatorship. [WIC §5008]
2. Requires the phrase “a danger to himself or herself or others, or gravely disabled” throughout the LPS Act to refer also 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. [WIC §5342]
3. Prohibits licensed general acute care hospitals or licensed acute psychiatric hospitals that are not county-designated facilities (NDFs) for purposes of involuntarily detaining a person; licensed professional staff of those hospitals; or, any physician providing emergency medical services in those hospitals from being civilly or criminally liable for involuntarily detaining a person for more than eight hours but less than 24 hours who is gravely disabled, which is defined as an inability to provide for one’s basic personal needs for food, clothing, or shelter. [HSC §1799.111]
4. Authorizes a person to be involuntarily detained for a period of up to 72 hours (“5150”) by a peace officer or other authorized person for assessment, evaluation, and crisis intervention, when, as a result of a mental disorder, chronic alcoholism, or use of controlled substances, as specified, the person is a danger to self or others, or is gravely disabled. [WIC §5150]
5. Requires a peace officer or other authorized person, when determining if probable cause exists to involuntarily detain or place a person on a 5150 hold, to consider available relevant information about the historical course, as specified, of a person’s mental disorder if the authorized person determines that the information has a reasonable bearing on the determination as to whether a person is a danger to self or others, or is gravely disabled as a result of the mental disorder. [WIC §5150.05]
6. Permits any individual to apply to the person or agency designated by the county for a “prepetition screening,” as defined, alleging that there is in the county another person who is, as a result of mental disorder or the use of controlled substances, a danger to self or others, or is gravely disabled, and requesting that an evaluation of the person’s condition be made. [WIC §5201]
7. Permits a person to be certified for not more than 14 days of intensive treatment related to a mental health disorder or impairment by chronic alcoholism after being placed on a 5150 hold if professional staff of an agency or facility providing evaluation services has found the person to be a danger to self of others, or gravely disabled; the facility providing intensive treatment is designated by the county to provide intensive treatment, as specified, and agrees to admit the person; and, the person has been advised of the need for treatment but has not been willing or able to accept treatment voluntarily. [WIC §5250]
8. Permits a conservator of a person, or the estate, or of both the person and the estate, to be appointed for someone who is gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism. [WIC §5350]
9. Permits, until January 1, 2024, San Francisco, Los Angeles, and San Diego counties to place in a conservatorship, as specified, a person who is chronically homeless and incapable of caring for his or her own health and well-being due to serious mental illness and substance use disorder, as specified. [WIC §5450, et seq.]
10. Deems a person not to be gravely disabled, for purposes of up to 14-day intensive treatment and appointing 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. [WIC §5250]
11. Defines a “designated facility” or “facility designated by the county for evaluation and treatment” as a facility that is licensed or certified as a mental health treatment facility or a hospital, as specified, by the Department of Public Health, and includes a licensed psychiatric hospital, a licensed psychiatric health facility, and a certified crisis stabilization unit. [WIC §5008]
12. Defines “evaluation” as a multidisciplinary professional analyses of a person’s medical, psychological, educational, social, financial, and legal conditions as may appear to constitute a problem. Requires persons providing evaluation services to be properly qualified professionals and may be full-time employees of an agency providing face-to-face evaluation services, which includes telehealth, or may be part-time employees or may be employed on a contractual basis. [WIC §5008]

This bill:

1. Adds to the definition of “gravely disabled,” in counties that have opted in, for those who are being detained in hospitals that are NDFs, as a condition in which the person is incapable of making informed decisions about, or providing for, basic personal needs 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.
2. Permits a person’s condition of being gravely disabled to be demonstrated by both the person’s treatment history and recent acts or omissions.
3. Makes other technical, nonsubstantive changes.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, California is failing its seriously mentally ill. Current law states that a person is gravely disabled if, as a result of a mental health disorder, he or she cannot provide for their basic needs for food, clothing, and shelter. This law was intended to serve as a protection to individual liberties but has created a system that, instead of helping the most seriously mentally ill, relegates them to the streets, jails, and emergency rooms. Better metrics are needed to help seriously mentally ill individuals that are simply powerless to provide for their own personal well-being. This is especially important when the absence of significant supervision and assistance leaves the individual at risk of substantial bodily harm. Clarifying the definition of “gravely disabled” will be a step towards repairing a system that is failing to serve those who need it most.
2. LPS Act. The LPS Act 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 grave disability criteria. Typically one first interacts with the LPS Act through a 5150 hold, which allows a designated facility to involuntarily commit a person for 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 person who detains the individual must determine and document that the individual meets this standard. When making the determination or determining that a person should be placed on a 5150 hold, the peace officer or other authorized person may consider information about an individual’s historical course of a mental disorder, 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.

Following an initial 5150 hold, a person may be certified for intensive treatment, which initially permits a person to be held for an additional up to 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 detention, 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. 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 he or she 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 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 he or she 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.

1. Recent legislative actions. SB 1045 (Wiener and Stern, Chapter 845, Statutes of 2018) and SB 40 (Wiener and Stern, Chapter 467, Statutes of 2019) established, under a five-year pilot project in San Francisco, Los Angeles, and San Diego Counties, a housing conservatorship process for individuals who are incapable of caring for their own health and well-being due to a serious mental illness and substance use disorder as evidenced by “frequent detention” for evaluation and treatment. Frequent detention is defined as having eight or more 5150 holds in the preceding 12 months. This pilot requires a county, in consultation with representatives of disability rights advocacy groups, permanent supportive housing services, the county health department, law enforcement, labor unions, and staff from hospitals in the county to develop a plan for implementing this conservatorship process and to attest that a myriad of services for the conserved person are available in the county, such as supportive housing, outpatient mental health counseling, medications, and substance use disorder services. Counties are also required to establish a working group to evaluate the effectiveness and outcomes of the housing conservatorship process, with preliminary reports due to the Legislature no later than January 1, 2021, and final reports due no later than January 1, 2023.

Additionally, the Joint Legislative Audit Committee approved an audit in June 2019 to be conducted by the California State Auditor (CSA) on county implementation of the LPS Act. The audit will generally focus on three counties’ definitions of the criteria for a 5150 and criteria for conservatorship, and whether the counties have consistently followed those criteria; differences in approaches among the counties; funding sources and whether funding is a barrier to implementing the LPS Act; and the availability of treatment resources in each county. The audit will include Los Angeles County and two other counties to be selected by the CSA. The CSA estimates the report will be released in April 2020.

1. Other states’ definitions. An August 2016 document by the Treatment Advocacy Center, “State Standards for Civil Commitment,” lists the definitions for every state that has inpatient commitment laws for people with mental health disorders and those states’ definitions for terms like “gravely disabled” and “danger to self.” Some examples include:
2. Arizona: “Grave disability” means a condition evidenced by behavior in which a person is likely to come to serious physical harm or serious illness because the person is unable to provide for his or her own basic physical needs;
3. Colorado: “Grave disability” means a condition in which a person is incapable of making informed decisions about or providing for his or her essential needs without significant supervision and assistance from other people, and is at risk of substantial bodily harm, dangerous worsening of any concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of his or her essential needs that could result in substantial bodily harm;
4. Hawaii: “Dangerous to self” means the person is unable, without supervision and assistance from others, to satisfy the need for nourishment, essential medical care, shelter, or self-protection, so that it is probable that death, substantial bodily injury, or serious physical debilitation or disease will result unless adequate treatment is afforded;
5. Nevada: “Clear and present danger to self” means the person will be unable to satisfy his or her need for nourishment, personal or medical care, shelter, self-protection or safety, and if there exists a reasonable probability that the person’s death serious bodily injury or physical debilitation will occur within the nest following 30 days unless he or she is admitted to a mental health facility and adequate treatment is provided to the person;
6. Washington: “Gravely disabled” means the failure to provide for one’s essential human needs of health or safety; and,
7. Kentucky, Michigan, and Utah define “gravely disabled” or “danger to self” similar to California, as the inability to provide for one’s food, clothing, or shelter.
8. Insufficient inpatient psychiatric beds. According to a 2018 psychiatric bed annual report by the California Hospital Association (CHA), since 1995 the state has lost 37 facilities, either through the elimination of psychiatric inpatient care, or complete hospital closure, representing a nearly 20% drop in facilities statewide. CHA states that the recommended number of psychiatric beds for the state is 50 per 100,000 individuals, which is contingent upon the availability of appropriate outpatient services in the community. Data from 2016 indicates that California has 17.05 psychiatric inpatient beds per 100,000 people, representing a gap of nearly 4,000 beds and a loss of more than 42% of the beds per capita since 1995. A County Behavioral Health Directors Association of California Governing Board Policy Brief from November 2015 cites specific challenges that contribute to the lack of crisis and inpatient care capacity, including:
   1. The federal Medicaid Institution for Mental Disease exclusion, which prohibits states from receiving federal matching funds for mental health inpatient services they provide to adult Medicaid enrollees aged 18-65 years in a hospital, nursing home, or other inpatient care setting with more than 16 beds;
   2. Stigma and discrimination, due to negative attitudes and myths about the dangerousness of people with mental illness. Counties and providers often face substantial community opposition when attempting to construct or repurpose a facility intended to be used for individuals in psychiatric crisis or in need of inpatient care; and,
   3. Divestment in acute psychiatric care and competing demands on hospitals, as, according to a report by the California Health Care Foundation, hospitals have focused more in the last decade on general acute care services (both adult and newborn intensive care capacity) over skilled nursing and acute psychiatric services. According to the American Hospital Association, hospitals have been closing psychiatric units because of low payments from public and private payers, uncompensated care for uninsured patients, and a dearth of psychiatrists willing to work in hospitals.
9. Double referral. This bill is double referred. If it passes out of this Committee, it will be referred to the Senate Judiciary Committee.
10. Related legislation. AB 1275 (Santiago) requires the Department of Health Care Services, to establish a three-year pilot project whereby specified counties create outreach teams to provide services to those with a history of mental illness or substance use disorders who are unable to provide for needed medical care and who are homeless or at risk of experiencing homelessness. AB 1275 is on the Senate Floor inactive file.

AB 1550 (Bonta) permits a certified crisis stabilization unit designated by a county mental health plan to provide medically necessary crisis stabilization services to individuals beyond 24 hours if the individual needs inpatient psychiatric care or outpatient care and those services are not reasonably available, when certain requirements are met. AB 1550 is on the Senate Floor inactive file.

SB 590 (Stone) adds a person who is impaired by chronic alcoholism to the existing prepetition screening process in the LPS Act, which 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 is pending in the Assembly Appropriations Committee.

1. Prior legislation. SB 40 (Wiener and Stern, Chapter 467, Statutes of 2019) and SB 1045 (Wiener and Stern, Chapter 845, Statutes of 2018) establish, under a five-year pilot project in specified counties a housing conservatorship process for individuals who are incapable of caring for their own health and well-being due to a serious mental illness and substance use disorder as evidenced by frequent detention for evaluation and treatment.

AB 1971 (Santiago, Friedman, and Chen of 2018) would have expanded the definition of “gravely disabled” until January 1, 2024, as implemented in the County of Los Angeles, to include a person’s inability to provide for his or her basic personal needs for medical treatment, as specified, and contained specified reporting requirements. AB 1971 died on the Senate Floor inactive file.

AB 2099 (Gloria, Chapter 258, Statutes of 2018) requires a copy of the application required under existing law that states the circumstances under which a person’s condition was called to the attention of an authorized person to place a 5150 hold to be treated as the original.

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.

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.

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.

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 that the individual shall not be limited to consideration of the danger of imminent harm.

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.

AB 1800 (Thompson and Perata of 2000) would have, among other things, expanded the definition of “gravely disabled” to include when, as a result of a mental disorder, a person has an acute risk of physical or psychiatric harm to self in the absence of treatment. AB 1800 was held in the Senate Rules Committee, and the subject matter of the bill was referred to the Joint Committee on Mental Health Reform.

1. Support. Supporters of this bill, largely local governments, law enforcement, and family advocates, argue that although the current definition of gravely disabled was intended to protect individuals from inappropriate, indefinite, and unnecessary involuntary commitments, it has created a system that often relegates those who are gravely disabled to the streets, jails, and emergency rooms, and has failed to deliver care that is desperately needed. Supporters state that this bill would clarify “gravely disabled” to more closely align with the original intent of the LPS Act and to provide care that the current system has failed to deliver.
2. Support if amended. Tenet Healthcare recommends that this bill be amended to pilot modernization of conservatorship programs in counties that have also adopted specific, voluntary community mental health and sheltering programs. Tenet states that ultimately the state must have resources to expand the continuum of care for behavioral, medically fragile and homeless patients. Tenet notes, for example, that Orange County has availed itself of two very appropriate tools: Laura’s Law/Assisted Outpatient Treatment and whole person care pilot programs. Tenet argues that without county support, wrap-around services, and vested community partnerships, simply transporting the gravely disabled population to a hospital emergency department (ED) will likely only exacerbate present bottlenecks in EDs. Tenet would support a pilot program with improved use of updated tools for court review and placement of conservators.
3. Opposition. Disability Rights California (DRC) states that while the author argues the current definition of “gravely disabled” is broad, the definition proposed in this bill is substantially longer, ill-constructed, and filled with numerous undefined terms that would significantly confuse and confound those charged with determining whether a person fits criteria. DRC is concerned that this bill leaves the adoption of an expanded definition to the discretion of a county’s Board of Supervisors and would create an alternate basis throughout the state for involuntarily holding individuals for a mental disorder. DRC cites the pilot project enacted by SB 40 and SB 1045, which while it created a variance, has strict confines of a time-limited project subject to extensive evaluation and data requirements. DRC argues that nothing in this bill expands services or creates more housing or physical or mental health care, which is what the real problem is. The County Behavioral Health Directors Association of California (CBHDAC) echoes DRC’s concerns regarding the expanded definition and its potential to increase confusion, specifically when dealing with a person who may be conserved and placed in a county that has not opted in to using the expanded definition. CBHDAC is reluctant to support changes to the LPS Act prior to the release of the CSA audit. CBHDAC states that conservatorship programs across the state are seriously understaffed and underfunded today, on average by 20%, and have seen rising caseloads. Mental Health America of Northern California (MHA NorCal) argues that efforts to institutionalize people with mental health conditions is not only counterproductive to the recovery model embraced by California but may also be a violation of civil rights. MHA NorCal also notes that Laura’s Law has been implemented in various counties, which consists of court-ordered coercive treatment with appropriate conditional elements that promote opportunities to remain in community services. SEIU California argues that this bill would not assist the state with a more uniform application of conservatorships. Instead, it would create a more confusing set of criteria which will be newly reinterpreted and tested throughout California’s various jurisdictions in myriad ways. SEIU California states that by opening the definition up to include individuals who need help with providing for their basic needs, it fears it would be even harder to provide help on a voluntary basis to our most in-need populations.
4. Oppose unless amended. CHA states if this bill were enacted, EDs and inpatient beds would be filled with patients who cannot legally be released but also, in cases where medical services are refused, cannot legally be treated, and hospitals would be forced to go through lengthy court processes to seek authorization to treat patients, release them, or appoint a conservator. CHA argues that the “opt-in” option for counties to use an expanded definition would exacerbate the already inconsistent application of LPS laws and create a system of unclear and inconsistent civil rights varying based on a person’s physical location, leading to confusion for patients, their families, and providers. CHA argues that broader policy changes and investment need to be made, such as: standardization of involuntary commitment laws; mandated assisted outpatient treatment in all counties; and adequately funding California’s overburdened court and public conservatorship system.
5. Policy comment. The author’s office confirmed with Committee staff that this bill contains a drafting error, and the expanded definition of “gravely disabled” is intended to apply in any county that elects to use it, not just in situations where a person is being involuntarily detained in a NDF. Recently enacted legislation seeks to assist those with chronic mental health and substance use disorders by creating a housing conservatorship process, and the CSA is conducting an audit that is expected to give insight as to how counties interpret the current “gravely disabled” definition; how they apply LPS Act criteria; and whether funding is a barrier to the consistent application of LPS Act criteria. The Committee may wish to consider whether permitting counties to use an expanded definition is premature given the pilot and pending CSA report.

SUPPORT AND OPPOSITION:

Support: California District Attorneys Association

California Police Chiefs Association

City of Fullerton

City of Santa Monica

MentalIllnessPolicy.org

NAMI Sacramento

Schizophrenia and Related Disorders Alliance of America

Westside Council of Chambers of Commerce

Two individuals

Oppose: California Hospital Association (unless amended)

County Behavioral Health Directors Association of California

Disability Rights California

Mental Health America of Northern California

SEIU California

-- END --

SENATE COMMITTEE ON HEALTH

Senator Dr. Richard Pan, Chair

BILL NO: SB 640

SUBJECT: Mental health services: gravely disabled

SUMMARY:

Clarifies the definition of “gravely disabled” for those who, as a result of a mental disorder and for purposes of being detained in hospitals that are not county-designated facilities, as specified, are incapable of making informed decisions about basic personal needs for food, clothing, and shelter without significant supervision and assistance from another person, and, as a result, the person is at risk of worsening mental and physical conditions, as specified.

Existing law:

1. Establishes the Lanterman-Petris-Short (LPS) Act 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. [WIC §5000, et seq.]

1. 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 his or her basic personal needs for food, clothing, or shelter, or a condition in which a person has been found mentally incompetent, as specified, for purposes of detaining the person for assessment, evaluation, and treatment; providing a court-ordered evaluation, as specified; certifying the person for intensive treatment; and, placing the person under conservatorship. [WIC §5008]
2. Requires the phrase “a danger to himself or herself or others, or gravely disabled” throughout the LPS Act to refer also 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. [WIC §5342]
3. Prohibits licensed general acute care hospitals or licensed acute psychiatric hospitals that are not county-designated facilities for purposes of involuntarily detaining a person; licensed professional staff of those hospitals; or, any physician providing emergency medical services in those hospitals from being civilly or criminally liable for involuntarily detaining a person for more than eight hours but less than 24 hours who is gravely disabled, which is defined as an inability to provide for one’s basic personal needs for food, clothing, or shelter. [HSC §1799.111]
4. Authorizes a person to be involuntarily detained for a period of up to 72 hours (“5150”) by a peace officer or other authorized person for assessment, evaluation, and crisis intervention, when, as a result of a mental disorder, chronic alcoholism, or use of controlled substances, as specified, the person is a danger to self or others, or is gravely disabled. [WIC §5150]
5. Requires a peace officer or other authorized person, when determining if probable cause exists to involuntarily detain or place a person on a 5150 hold, to consider available relevant information about the historical course, as specified, of a person’s mental disorder if the authorized person determines that the information has a reasonable bearing on the determination as to whether a person is a danger to self or others, or is gravely disabled as a result of the mental disorder. [WIC §5150.05]
6. Permits any individual to apply to the person or agency designated by the county for a “prepetition screening,” as defined, alleging that there is in the county another person who is, as a result of mental disorder or the use of controlled substances, a danger to self or others, or is gravely disabled, and requesting that an evaluation of the person’s condition be made. [WIC §5201]
7. Permits a person to be certified for not more than 14 days of intensive treatment related to a mental health disorder or impairment by chronic alcoholism after being placed on a 5150 hold if professional staff of an agency or facility providing evaluation services has found the person to be a danger to self of others, or gravely disabled; the facility providing intensive treatment is designated by the county to provide intensive treatment, as specified, and agrees to admit the person; and, the person has been advised of the need for treatment but has not been willing or able to accept treatment voluntarily. [WIC §5250]
8. Permits a conservator of a person, or the estate, or of both the person and the estate, to be appointed for someone who is gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism. [WIC §5350]
9. Permits, until January 1, 2024, San Diego, San Francisco, and Los Angeles Counties to place in a conservatorship, as specified, a person who is chronically homeless and incapable of caring for his or her own health and well-being due to serious mental illness and substance use disorder, as specified. [WIC §5450, et seq.]
10. Deems a person not to be gravely disabled, for purposes of up to 14-day intensive treatment and appointing 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. [WIC §5250]
11. Defines a “designated facility” or “facility designated by the county for evaluation and treatment” as a facility that is licensed or certified as a mental health treatment facility or a hospital, as specified, by the Department of Public Health, and includes a licensed psychiatric hospital, a licensed psychiatric health facility, and a certified crisis stabilization unit. [WIC §5008]
12. Defines “evaluation” as a multidisciplinary professional analyses of a person’s medical, psychological, educational, social, financial, and legal conditions as may appear to constitute a problem. Requires persons providing evaluation services to be properly qualified professionals and may be full-time employees of an agency providing face-to-face, which includes telehealth, evaluation services or may be part-time employees or may be employed on a contractual basis. [WIC §5008]

This bill:

1. Clarifies the definition of “gravely disabled” for those who, as a result of a mental disorder and for purposes of being detained in hospitals that are not county-designated facilities, are incapable of making informed decisions about basic personal needs for food, clothing, and 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.
2. Permits a person’s condition of being gravely disabled to be demonstrated by both the person’s treatment history and recent acts or omissions.
3. Makes other technical, nonsubstantive changes.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, California is failing its seriously mentally ill. Current law states that a person is gravely disabled if, as a result of a mental health disorder, he or she cannot provide for their basic needs for food, clothing, and shelter. This law was intended to serve as a protection to individual liberties but has created a system that, instead of helping the most seriously mentally ill, relegates them to the streets, jails, and emergency rooms. Better metrics are needed to help seriously mentally ill individuals that are simply powerless to provide for their own personal well-being. This is especially important when the absence of significant supervision and assistance leaves the individual at risk of substantial bodily harm. Clarifying the definition of “gravely disabled” will be a step towards repairing a system that is failing to serve those who need it most.
2. LPS Act. The LPS Act 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 grave disability criteria. Typically one first interacts with the LPS Act through a 5150 hold, which allows a designated facility to involuntarily commit a person for 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 person who detains the individual must determine and document that the individual meets this standard. When making the determination or determining that a person should be placed on a 5150 hold, the peace officer or other authorized person may consider information about an individual’s historical course of a mental disorder, 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.

Following an initial 5150 hold, a person may be certified for intensive treatment, which initially permits a person to be held for an additional up to 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 detention, 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. 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 he or she 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 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 he or she 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. SB 1045 (Wiener and Stern, Chapter 845, Statutes of 2018) established, under a five-year pilot project in San Francisco, Los Angeles, and San Diego Counties, a conservatorship process for individuals who are incapable of caring for their own health and well-being due to a serious mental illness and substance use disorder as evidenced by “frequent detention” for evaluation and treatment under 72-hour involuntary holds. Frequent detention is defined as having eight or more 5150 holds in the preceding 12 months.

1. Other states’ definitions. An August 2016 document by the Treatment Advocacy Center, “State Standards for Civil Commitment,” lists the definitions for every state that has inpatient commitment laws for people with mental health disorders and those states’ definitions for terms like “gravely disabled” and “danger to self.” Some examples include:
2. Arizona: “Grave disability” means a condition evidenced by behavior in which a person is likely to come to serious physical harm or serious illness because the person is unable to provide for his or her own basic physical needs;
3. Colorado: “Grave disability” means a condition in which a person is incapable of making informed decisions about or providing for his or her essential needs without significant supervision and assistance from other people, and is at risk of substantial bodily harm, dangerous worsening of any concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of his or her essential needs that could result in substantial bodily harm;
4. Hawaii: “Dangerous to self” means the person is unable, without supervision and assistance from others, to satisfy the need for nourishment, essential medical care, shelter, or self-protection, so that it is probable that death, substantial bodily injury, or serious physical debilitation or disease will result unless adequate treatment is afforded;
5. Nevada: “Clear and present danger to self” means the person will be unable to satisfy his or her need for nourishment, personal or medical care, shelter, self-protection or safety, and if there exists a reasonable probability that the person’s death serious bodily injury or physical debilitation will occur within the nest following 30 days unless he or she is admitted to a mental health facility and adequate treatment is provided to the person;
6. Washington: “Gravely disabled” means the failure to provide for one’s essential human needs of health or safety; and,
7. Kentucky, Michigan, and Utah define “gravely disabled” or “danger to self” similar to California, as the inability to provide for one’s food, clothing, or shelter.
8. Insufficient inpatient psychiatric beds. According to a 2018 psychiatric bed annual report by the California Hospital Association (CHA), since 1995 the state has lost 37 facilities, either through the elimination of psychiatric inpatient care, or complete hospital closure, representing a nearly 20% drop in facilities statewide. CHA states that the recommended number of psychiatric beds for the state is 50 per 100,000 individuals, which is contingent upon the availability of appropriate outpatient services in the community. Data from 2016 indicates that California has 17.05 psychiatric inpatient beds per 100,000 people, representing a gap of nearly 4,000 beds and a loss of more than 42% of the beds per capita since 1995. A County Behavioral Health Directors Association of California Governing Board Policy Brief from November 2015 cites specific challenges that contribute to the lack of crisis and inpatient care capacity, including:
   1. The federal Medicaid Institution for Mental Disease exclusion, which prohibits states from receiving federal matching funds for mental health inpatient services they provide to adult Medicaid enrollees aged 18-65 years in a hospital, nursing home, or other inpatient care setting with more than 16 beds;
   2. Stigma and discrimination, due to negative attitudes and myths about the dangerousness of people with mental illness. Counties and providers often face substantial community opposition when attempting to construct or repurpose a facility intended to be used for individuals in psychiatric crisis or in need of inpatient care; and,
   3. Divestment in acute psychiatric care and competing demands on hospitals, as, according to a report by the California Health Care Foundation, hospitals have focused more in the last decade on general acute care services (both adult and newborn intensive care capacity) over skilled nursing and acute psychiatric services. According to the American Hospital Association, hospitals have been closing psychiatric units because of low payments from public and private payers, uncompensated care for uninsured patients, and a dearth of psychiatrists willing to work in hospitals.
9. Double referral. This bill is double referred. If it passes out of this Committee, it will be referred to the Senate Judiciary Committee.
10. Related legislation. AB 1055 (Levine) requires a person who is released from a 72-hour involuntary detention to also be referred for further care and treatment on a voluntary basis, and would require a psychiatrist, psychologist, or medical director approving the release, to, prior to that release, ensure that an initial outpatient appointment with a psychiatrist or psychologist within five business days of the release is scheduled. AB 1055 is pending in the Assembly Health Committee.

AB 1275 (Santiago) requires each county to establish an outreach team to provide outreach services to individuals with a history of mental illness or substance use disorders who are unable to provide for urgently needed medical care and who are homeless or at risk of experiencing homelessness. AB 1275 is set to be heard in the Assembly Health Committee on April 23, 2019.

AB 1550 (Bonta) authorizes a certified crisis stabilization unit designated by a mental health managed care plan, at the discretion of the mental health managed care plan, to provide medically necessary crisis stabilization services to individuals beyond the service time of 24 hours, as specified. Requires a person who is placed under, or who is already under, a 72-hour involuntary hold to be credited for the time detained at a certified crisis stabilization unit. AB 1550 is set to be heard in the Assembly Health Committee on April 23, 2019.

AB 1572 (Chen) is substantially similar to this bill and also appropriates $20 million to the Department of Health Care Services to establish a four-year grant program to assist local jurisdictions to maintain appropriate caseloads for individuals who manage conservatorship cases, as specified. AB 1572 is set to be heard in the Assembly Health Committee on April 9, 2019.

SB 40 (Wiener) authorizes a court to establish a temporary conservatorship for individuals who are incapable of caring for their own health and well-being due to a serious mental illness and substance use disorder for a period of 30 days or less if the court is satisfied of the necessity, as specified. Makes conservatorships for those individuals subject to a finding by the court that the behavioral health director or the director’s designee has previously attempted to obtain the above-described court order and that the petition was denied, as specified; has evaluated whether assisted outpatient treatment is appropriate for the person; and concluded that the person is not eligible for that treatment or that the treatment would be insufficient to treat the person in lieu of a conservatorship. SB 40 is set to be heard in the Senate Judiciary Committee on April 9, 2019.

SB 590 (Stone) adds a person who is impaired by chronic alcoholism to the existing prepetition screening process in the LPS Act, which 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 was heard in this Committee on April 3, 2019, and passed out by a vote of 8-0.

1. Prior legislation. AB 1971 (Santiago, Friedman, and Chen of 2018) would have expanded the definition of “gravely disabled” until January 1, 2024, as implemented in the County of Los Angeles, to include a person’s inability to provide for his or her basic personal needs for medical treatment, as specified, and contained specified reporting requirements. AB 1971 was placed on the Senate Floor inactive file.

AB 2099 (Gloria, Chapter 258, Statutes of 2018) requires a copy of the application required under existing law that states the circumstances under which a person’s condition was called to the attention of an authorized person to place a 5150 hold to be treated as the original.

SB 1045 establishes a five-year pilot project for a conservatorship process for individuals incapable of caring for themselves as evidenced by “frequent detention,” as specified.

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.

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.

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.

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 that the individual shall not be limited to consideration of the danger of imminent harm.

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.

AB 1800 (Thompson and Perata of 2000) would have, among other things, expanded the definition of “gravely disabled” to include when, as a result of a mental disorder, a person has an acute risk of physical or psychiatric harm to self in the absence of treatment. AB 1800 was held in the Senate Rules Committee, and the subject matter of the bill was referred to the Joint Committee on Mental Health Reform.

1. Support. The City of Santa Monica states that although the current definition of gravely disabled was intended to protect individuals from inappropriate, indefinite, and unnecessary involuntary commitments, it has created a system that often relegates those who are gravely disabled to the streets, jails, and emergency rooms, and has failed to deliver care that is desperately needed. The City of Santa Monica argues that this bill would clarify gravely disabled to more closely align with the original intent of the LPS Act and to provide care that the current system has failed to deliver.
2. Support if amended. Tenet Healthcare recommends that this bill be amended to pilot modernization of conservatorship programs in counties that have also adopted specific, voluntary community mental health and sheltering programs. Tenet states that ultimately the state must have resources to expand the continuum of care for behavioral, medically fragile and homeless patients. Tenet notes, for example, that Orange County has availed itself of two very appropriate tools: Laura’s Law/Assisted Outpatient Treatment and whole person care pilot programs. Tenet argues that without county support, wrap-around services, and vested community partnerships, simply transporting the gravely disabled population to a hospital emergency department (ED) will likely only exacerbate present bottlenecks in that ED caused in part by patients that we are unable to discharge by the hospital.
3. Opposition. Disability Rights California, the American Civil Liberties Union, and the Western Center on Law and Poverty write as a coalition to argue that this bill needlessly expands LPS to permit an undefined standard by which to impose involuntary care for individuals in a restrictive and confined environment; proposes a solution that does not meet the stated goals of addressing homelessness; and, does nothing to ensure that those proposed to be conserved under the expansion will be provided with adequate food, clothing, shelter, or medical and behavioral health care. The coalition states that many terms in the expanded definition are undefined and expansively broad and that the bill does nothing to promote uniformity between the counties and, to the contrary, substitutes a vastly more confusing standard for every stakeholder in the LPS system to attempt to learn and attempt to consistently apply. The coalition further states that involuntary treatment means the county has the duty to treat and house conservatees, which includes making physical and mental health services actually available, and this bill puts the cart before the horse since the counties are already unable to provide services and supportive housing for this population. The coalition states that they do not believe this bill has specified a clear or factual underpinning to support moving away from the current gravely disabled standard that has served for decades to balance the needs of individuals with behavioral illnesses and the protection of their own and others safety. Mental Health America of Northern California (MHA NorCal) shares similar concerns as the coalition. MHA NorCal also argues that efforts to institutionalize people with mental health conditions is not only counterproductive to the recovery model embraced by California but may also be a violation of civil rights. MHA NorCal also notes that Laura’s Law has been implemented in various counties, which consists of court-ordered coercive treatment with appropriate conditional elements that promote opportunities to remain in community services. SEIU California shares similar concerns as the coalition and argues that this bill would not assist the state with a more uniform application of conservatorships. Instead, it would create a more confusing set of criteria which will be newly reinterpreted and tested throughout California’s various jurisdictions in myriad ways. SEIU California states that by opening the definition up to include individuals who need help with providing for their basic needs, it fears it would be even harder to provide help on a voluntary basis to our most in-need populations.
4. Oppose unless amended. CHA states that this bill will only make it more challenging for hospitals to meet the needs of an increasing volume of patients with behavioral health needs. Over a six-year period, data shows that ED utilization increased by a staggering 47% for people with behavioral health conditions, while overall ED use increased only 14%. CHA argues that this bill expands criteria for 5150s and causes an unintended ripple effect that will negatively impact patient care such that under the expanded definition many patients with mental health disorders could be involuntarily detained simply because they do not follow a doctor’s recommended treatment; patients on 5150s would linger in EDs; and hospitals could not forcibly treat patients but would need to keep them. CHA argues that broader policy changes and investment need to be made, such as: standardization of involuntary commitment laws; mandated assisted outpatient treatment in all counties; and adequately funding California’s overburdened court and public conservatorship system.
5. Policy comments.
   • 1. According to the author, the term “gravely disabled” is being clarified in this bill to address a failure to treat people most in need due to inconsistencies in its application across counties and to address its broadness. However, the clarifications proposed in this bill could be interpreted just as broadly, as they do not identify who is making determinations that a person is in danger of worsening physical or mental conditions, or that a person risks mismanagement of his or her essential needs that could result in bodily harm. The author may wish to specify that these determinations would be made through an assessment and evaluation performed by county-designated entities and verified by licensed mental health or medical professionals.
     2. This bill contains a provision that permits a person’s grave disability to be demonstrated by both the person’s treatment history and recent acts or omissions. This provision also appears to be overly broad, and current LPS Act provisions permit information about the historical course of a person’s mental disorder to be considered when determining whether probable cause exists in order to involuntarily detain a person or place a person on a 5150 hold. The author may wish to instead reference the existing LPS Act provision.

SUPPORT AND OPPOSITION:

Support: California District Attorneys Association

California Police Chiefs Association

City of Santa Monica

NAMI Sacramento

One Individual

Oppose: American Civil Liberties Union

California Hospital Association (unless amended)

Disability Rights California

Mental Health America of Northern California

SEIU California

Western Center on Law and Poverty

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