Involuntary Outpatient Commitment

Published by: The LPS Reform Task Force
203 Argonne Ave., PMB 104
Long Beach, CA 90803
562-438-4174
February 1999
2^nd Printing
March 1999
3^rd Printing
May 1999

Executive Summary

Recommendations

Introduction

Recommendation 1: Definition of Mental Illness

Recommendation 2: Criteria for Treatment

Recommendation 3: Super Gallinot Probable Cause Hearing

Recommendation 4. Community Assisted Treatment

Recommendation 5. Length of Certification

Recommendation 6: Conservatorships

Recommendation 7: Commitment Based on Demonstrated Danger

Recommendation 8: Psychiatric History

Recommendation 9: Emergency Response

Recommendation 10: Psychiatric Mobile Response Teams

Recommendation 11: Uniform Standards for Voluntary and Involuntary Hospitalization

Recommendation 12: Funding

History of LPS – Carla Jacobs

Overview

Extramural Care Program

Short Doyle Programs

History of Civil Commitment, Paul F. Stavis, MD

Continuum Theory

The Dilemma Report

Lanterman Petris Short Act

A New Dilemma

Revolving Door

The Current Legal System

Overview

Specific Provisions of LPS

The Current System

Informal Due Process

Gallinot Hearing - Probable Cause

Writ Challenges – Gallinot Hearing

Riese Hearings- Medication

Writ Challenges – Medication Hearing

Conservatorships

Commitment for Demonstrated Danger

Outpatient Committal

Summary - Jonathan Stanley, Esq.

Therapeutic Jurisprudence: The Impact of LPS On Recovery - David Stone, MD

What Is Mental Illness?

Overview

Schizophrenia - Stephen Marder, MD

Major Depressive Unipolar Disorder - Elizabeth Galton, MD

Bipolar Disorder – Manic Depression - Lori Altshuler, MD

Obsessive Compulsive Disorder (OCD) - Barbara Silver, MD

Anorexia Nervosa and Bulimia Nervosa - Barbara Silver, MD

A Consumer's View of Mental Illness - Dru Ann McCain

Is Mental Illness Treatable?

The Consequences of Lack of Treatment

Overview

Suicide

Substance Abuse

Violence

Victimization

Homelessness

Criminalization

Early Death and Other Physical Health Costs - Barbara Silver, MD

AIDS/HIV

Family Toll - Christopher Amenson, PhD

Treatment Issues

Overview

Early Intervention - Alex Kopelowicz, MD

Barrier to Treatment: Insight - June Husted, PhD

Medication - Stephen Marder, MD

Medication Compliance

In-patient Mental Health Services – Rosa Kaplan, D.S.W.

Psychiatric Rehabilitation - Robert P. Liberman, MD

Structure: The Missing Component in Community Treatment - H. Richard Lamb

Community Assisted Treatment - Jonathan Stanley, JD

Assertive Community Treatment - Gil Abdalian, MS, MBA, MFCC, CRC

Ulysses Contract Advance Directives – Carla Jacobs

Emergency Mental Health Mobile Teams - Rod Shaner, MD

LPS Reform and Patient Rights - Rod Shaner, MD

Addendum - "Mental Health laws: Is Reform Overdue"Hearing: Los Angeles County Arboretum, August 6, 1998

Introduction Mental illnesses, such as schizophrenia, bipolar disorder, obsessive compulsive disorder, and clinical depression, are neurobiological diseases of the brain. Recovery is very possible. Like most medical disorders, the earlier that treatment is initiated the better the prognosis. When the disease has progressed, a period of rehabilitation, social and vocational, may have to be completed to achieve the maximum recovery. With newer medications – and the new medications that are hoped for – people with mental illness experience fewer symptoms and fewer side effects. Thus, the next generation of people with mental illness may need to recover only from the illness and not both from the illness and the effects of the illness on their life circumstances.

But, first there must be treatment.

One of the difficulties in providing continuous treatment in the community is that since these illnesses are brain disorders that affect the ill person’s reasoning, some individuals do not recognize that they are ill or that the symptoms of their condition will respond to medication. Therefore, they do not seek treatment. If hospitalized, they may be unable or unwilling to comply with treatment plans after discharge. When this occurs, the person may require involuntary treatment to protect their lives and avoid tragic social and personal consequences.

The current California law regarding involuntary treatment for mental illness -- the Lanterman, Petris, Short Act (LPS Act) -- was written 30 years ago before scientific knowledge advanced recognizing mental illness as a physical disorder of the brain. Its purpose was to depopulate state hospitals. It was not full realized at the time of its enactment the structure and support some people with mental illness would require to successfully participate in community life. Furthermore, over the years the act has been piecemeal amended to make it one of the most adversarial, costly and difficult to administer involuntary treatment systems in the United States. Lack of clear definition and common misinterpretation of its provisions have caused inconsistent application from county to county.

The law must be revised to incorporate modern scientific knowledge regarding the nature and treatment of mental illness in the community and to streamline its efficiency in today’s managed care environment.

It is important to understand the diverse backgrounds of the attendees. Some came from the point of view of having tried unsuccessfully to get treatment for a family member; others from the frustration of having tried unsuccessfully to provide such treatment. Still others felt strongly that a system which produced so much clearly evident suffering was wrong. Some had recovered from mental illness, but were frustrated at how long it had taken to get to that point. What all had in common was a sense that it was the California laws which had contributed to the tragedy of homelessness and criminalization of people with mental illness caused by lack of needed treatment.

Monthly meetings were held. We obtained the equivalent laws from all 50 states and read much literature on the subject of involuntary commitment. Discussions took place on a wide range of subjects from the newest scientific knowledge regarding brain function to criminal justice interaction to definitions of mental illness to effective methods of rehabilitation. Many professional people and organizations advised us and provided us with the educational structure necessary to undertake the project. We particularly would like to thank Dr. Stephen Marder; Dr. Robert Liberman, Dr. H.R. Lamb, the American Psychiatric Association Council on Psychiatry and Law and the Treatment Advocacy Center and as well as our guest speakers: David Meyer, JD, on commitment law; Dr. David Stone, on the results of an outcome study on patients impacted by the LPS procedures; and Gloria Nabrit, M.P.A., who spoke to us about Medi-Cal and financial considerations.

During the time of our meetings, on August 6, 1998, Los Angeles County Supervisor Mike Antonovich held a public hearing on whether LPS Laws should be changed. Nearly 400 residents of Los Angeles County and neighboring vicinities packed the Los Angeles County Arboretum. This forum was the first time many people had the opportunity to discuss in public their frustration with the involuntary treatment laws and their pain at watching their loved one deteriorate without any help. One participant described the system as an upside down funnel: very hard to get into and easy to fall out of. The room was filled with the sorrow of past tragedy, but strengthened by the hope of reform. A synopsis of the testimony is included in the appendix of this report.

The Recommendations This report includes recommendations of revision to the LPS Act that are the results of three years of study. In addition to the recommendations, briefing papers have been prepared on the major mental illnesses, medication advances, the consequences of lack of treatment, the current legal system, treatment issues and a history of the implementation of the LPS Act itself. The focus of this report is the involuntary treatment law as it pertains to adults with severe persistent mental illness. There are also provisions in the codes for involuntary treatment of juveniles with mental illness and people impaired by chronic alcoholism, but those populations and procedures are beyond the scope of our current study.

With all the work that this committee has done to suggest overdue corrections in our commitment laws, it must be recognized that reform will be for naught unless the State of California commits to adequate funding to provide treatment for people with severe mental illness. We have a choice: we can shut our eyes to the sight of tragedy or we can make up our minds to give people with mental illness a community structure of compassionate care.

Introduction

The California statute regarding involuntary treatment for people with mental illness as well as diagnostic and treatment practices must be re-examined, streamlined, and re-written to be more therapeutic and effective.

The proposed legislative changes are intended to maintain a necessary balance between individual liberties, therapeutic treatment and the state’s obligation to provide safety and treatment for individuals with mental illness in the least restrictive environment. The following recommendations occur after an exhaustive review of current scientific knowledge, legal investigation and discussion with a wide variety of people involved with the mental illness system about the practical application of involuntary treatment.

Recommendation 1: Definition of Mental Illness

Discussion: Mental health and mental disease are concepts of great importance to the twentieth century legislator. The content and meaning of these terms are also matters of concern to judges and attorneys and treating professionals. The Continuum Theory of the 50s and 60s, which postulated that mental illness was the far extreme of a degeneration from a state of mental health, contributed greatly to the debate. Today, the debate is over: mental health and mental illness are not part of a continuum. Mental illnesses, such as schizophrenia, bipolar disorder, OCD, are brain-based biological diseases which impact the cognitive and affective functions of their victims’ brains. They are as medical in nature as Alzheimer’s, Multiple Sclerosis and Parkinson’s disease.

The current LPS ACT does not define mental illness; indeed the enactment was intentionally nonspecific in terms of definition. At the time of its codification, beliefs regarding the source of mental illness were in social flux. As a result, California law provides for involuntary treatment if a person shows certain behaviors resulting from nonspecific "mental disorders." A goal of the LPS was to prevent inappropriate commitment. California’s involuntary treatment laws require revision in order to insure the achievement of that goal. Behaviors of choice must be differentiated from behavioral by-products caused by symptoms of an underling "no-fault-of-the sufferer" illness.

Recommendation: A definition of mental illness be added to the LPS Act. The recommended definition is: "Mental illness includes disorders that produce psychotic symptoms, such as schizophrenia, schizoaffective disorder, manic-depression, pervasive developmental disorders as well as severe forms of other disorders such as major depression, anxiety and panic disorder, obsessive-compulsive disorder and other organic, affective or cognitive disorders which manifest as major dysfunction in the individual’s behavior or personality. Except for the purposes of this act the term does not include retardation or developmental disability, simple intoxication or conditions manifested to be antisocial behavior not caused by any of the conditions listed above."

Recommendation 2:  Criteria for Treatment

No one advocates a return to unnecessary long-term placement; our dilemma is how to provide treatment to people who do not have the medical capacity to accept or access it themselves, but who live in an open community environment.

The criteria in California’s LPS laws must be updated to incorporate current medical science regarding mental illness, correspond more closely with the Medi-Cal definition of "medical necessity", provide treatment before tragic social and medical detriments occur and help to de-stigmatize mental illness by giving recognition that people need the community support of necessary treatment when symptoms of a medical illness render them unable to obtain or utilize such treatment for themselves.

Recommendation:Criteria for involuntary treatment and hospitalization be revised to include the following: "Because of a mental illness, the individual is either a passive or an active danger to self or others; or gravely disabled, which means that the person is unable to provide for his/her basic needs (i.e., food, clothing, shelter, health or safety), or to take advantage of such resources when they are provided; or has recently substantially deteriorated from a former level of functioning, or is likely to substantially deteriorate if not provided with timely treatment and the person is unable to appreciate, or understand, or lacks consistent judgment to make informed decisions about his/her need for treatment, care or community living structure."

Recommendation 3:  Super Gallinot Probable Cause Hearing

The principle governing a person with mental illness’ right to participate in every step of their treatment path is sound. In responding to a court case known as Riese vs. St. Mary’s (1987, 209 C.A.3d 1303), the legislature attempted to codify this principle into statute by allowing an involuntary patient to refuse medication short of a quasi-judicial finding of his/her incompetency to refuse. The application of the statute has turned the question of an involuntary patient’s right to refuse medication into an administrative nightmare as well as making treatment more adversarial than therapeutic: the doctor can be fighting the patient’s lawyer in front of the patient with whom he is still expected to build a trusting relationship.

Separation of the Riese hearing from the probable cause hearing has pushed more people with mental illness into the hell of the streets and prisons. People who truly do not have the capacity to refuse medication may end up going without community help as hospitals, operating under the triage of managed care, simply release the patient who is not immediately dangerous to avoid entering the procedural labyrinth. Patients further deteriorate as they await the application for the medication hearing.

Furthermore, since the decision to allow involuntary medication is made separately and in a different hearing than the probable cause hearing -- and then only at the hospital’s request--a person who rightfully has the capacity to make competent decisions regarding medication may be detained involuntarily without treatment if the hospital does not apply for the hearing. This is a serious abridgement of that patient’s civil rights. Treatment and detention should not be considered a separate issue: to solely detain a person for whom treatment is available without providing him/her with that treatment deprives the individual of more rights than a decision requiring medication. Unable to provide treatment, hospitals become merely institutions of social control.

Recommendation:During the initial 72-hour period for evaluation and treatment, the treating physician should be required to evaluate whether or not the patient who is refusing medication has the medical capacity to do so. If the patient has previously signed a Ulysses Contract/Advance Directive assigning substitute decision making for treatment to a professional or family member of choice in the event that his or her judgement becomes impaired, and a copy of that directive has been provided to the treatment facility, medication will be administered only under the terms of the Ulysses Contract unless the person is imminently dangerous to self or others. If the person has not assigned a substitute decision-maker through a Ulysses Contract/Advance Directive, and in the treating physician’s opinion the patient does not have the capacity to make medication decisions, would benefit with medication, and would most likely deteriorate further without medication, medication may be administered. Before any administration of medication, the treating clinician will make reasonable attempts to obtain the patient’s agreement. Treating staff should be sensitive to all input given by the patient or his/her family regarding complaints of side effects, previous medications used, or problems with the prescribed medication.

Both issues--detention and capacity to refuse medication should be reviewed through a "Super Gallinot" probable cause hearing. The hearing should be nonadversarial and automatic, utilizing the same standards of proof and procedures of the current "Gallinot" hearing. The statute should be clear to specify that determination of capacityto refuse medication should consider more than the patient’s ability to convey information about side effects of medication. The capacity determination should consider whether the person has recognition of their illness as well as the consistent judgment to weigh the benefits and detriments of medication as well as the consequences of refusal. Subsequent certification hearings and conservatorship hearings should again consider the issue of medical capacity to make an informed consent, if the patient indicates he/she wishes to change or discontinue his medication against the treating physician’s advice. The patient may appeal the certification decision through a one writ entitlement which may be filed any time during the certification period. That writ can address the validity of the detention and/or the medication refusal capacity of the individual. The facility should also have a right to appeal to the Superior Court in the event the certification hearing determines the patient has met the criteria necessary for certification, but has the capacity to refuse medication and the facility and the treating clinician disagree.

Recommendation 4:  Community Assisted Treatment

Recommendation:An "aftercare" program, Community Assisted Treatment, be legislatively required for people who are stable enough to leave the hospital with adequate community support and supervision but who have in the past failed to thrive evidenced by not maintaining in treatment services, housing or medication compliance/efficacy when previously released from involuntary hospitalization. The standards for placement in the program should be (1) the patient has received due process through the probable cause hearing that he/she meets the criteria for involuntary hospitalization because of mental illness; (2) the treating physician believes, at any time during the certification period, the patient is sufficiently stable to benefit from community placement, but needs continuing treatment and care under supervised conditions to maintain and improve his/her recovery; (3) the patient agrees, and desires to participate in such a program and is willing to be placed on "on leave" status from his/her current involuntary hold certification and be released from the hospital to a lower level of care; (4) The patient is not an immediate harm to self or others; (5) the community mental health system (county or private) agrees with the patient and the doctor’s decision, and agrees to provide services necessary to the patient as directed by the treatment plan including, but not limited to, housing placement, support treatment services, medication supervision for compliance, efficacy, and side effects, and application for any necessary fiscal supports and entitlements. An aftercare expediter responsible for helping to implement and supervise the after care plan will be appointed to act as a substitute decision-maker for the patient and named in the treatment plan to which the patient has agreed. The treatment plan will be filed with and ordered by the county Superior Court. In the event, the patient does not or cannot abide by the terms of the agreed upon treatment plan, including medication compliance or efficacy, and the person is in danger of deteriorating from his released level of functioning, or if in the expediter’s view the patient will best benefit from re-hospitalization, the expediter may cause the person to be returned to a more intensive level of treatment for the remaining days of the underlying involuntary treatment certification. If the returned "on leave" patient is not expected to recovery sufficiently during the remaining period of time of their previously certified hold, the treating physician may apply for a new certification and subsequent conservatorship. The "on-leave" status may be renewed annually upon agreement by all parties and re-order by the court. If the "on leave" patient has not required treatment in an intensive setting for a one year period from their initial certification date, he/she may be unconditionally discharged from the ‘on leave’ status.

Recommendation 5:  Length of Certification

Today these tiered lengths of stay are empty gestures geared at preventing inappropriate long term hospitalization in state hospitals. State hospitals are virtually a thing of the past for civil patients. There is now an initial up front due process in the Gallinot hearing. By law, the physician is required to discharge any patient who no longer meets the criteria for hospitalization. Additionally, third party payers act as a fiscal incentive to rapid release through "medical necessity" definitions. Furthermore, the patient is entitled to a writ to appeal his treatment and detention to the Superior Court. Indeed the tiered system of differing tracts for certification can be nontherapeutic to the recovering patient who is taken from treatment many times and placed into an adversarial position with the treating clinician who must testify "against" the patient with whom he/she is attempting to develop a good doctor/patient relationship.

Recommendation: After the 72 hour period, certification for treatment should be for 28 days regardless of the criteria under which the patient was initially certified.

Recommendation 6:  Conservatorships

Recommendation: Conservatorships be available for any person who, due to mental illness, continues to fit the criteria for involuntary treatment and is in continuing need of treatment after the initial certification period regardless of the criteria used for the original detention unless that person is a demonstrated danger to others. The standard of proof for a conservatorship should be clear and convincing evidence.

Recommendation 7:  Commitment Based on Demonstrated Danger

The person detained under WIC 5300 must be brought to trial within 10 days unless his public defender applies for an extension, granted a jury trial (if so desired) and found to be a demonstrated danger beyond a reasonable doubt. During the 180 days, which is renewable, the person may be placed in a locked psychiatric facility or placed on outpatient commital status, if the professional in charge of the facility and the county mental health director advise the court that the person will no longer be dangerous, will benefit from outpatient status, and will participate in an appropriate program of supervision and treatment. The limit of commitment -- 180 days -- may not allow sufficient time for inhospital stabilization and successful reintegration to the community through supervised outpatient committal.

Recommendation: If the person has proven to be a demonstrated danger to others during the initial certification, an additional certification period of 90 days be allowed. The patient should have the right to appeal this additional certification through a writ to the Superior Court. If at the end of 60 days of the additional certification period, the person is thought to be a continuing demonstrated danger to others, notification should be given the County District Attorney’s office and Public Defender’s Office of impending commitment in order to allow adequate time to prepare for trial. The finding should be based on clear and convincing evidence. Actual commitment should be extended from 180 days to 1 year to conform with the current conservatorship length of time and allow sufficient time for stability and community reintergration. Commitment should be renewable annually.

Recommendation 8:  Psychiatric History

It is also not uncommon for an individual to minimize or fail to disclose the severity of his/her symptoms during the actual hearing. This is especially true of the individual who is paranoid and cautious in disclosing information to strangers. While nothing in the LPS Act precludes a hearing officer or judge from considering the past history of an individual’s illness, common interpretation by some hearing officers is that they must only consider the person’s presentation "at that moment in time." Without reasonable consideration of the person’s psychiatric history, the individual may be inappropriately and prematurely released without sufficient stabilization. A grave disservice is thus done to the person who requires a period of stability in order to gain recovery from his/her disease.

Recommendation: Certification, conservatorship, and commitment hearings and renewals take into account not only the mental status of the patient at the time of the hearing, but also the recent and past psychiatric history of the patient including number and frequency of hospitalizations or emergency room visits, history of treatment compliance and living conditions such as repeated homelessness as well as prodromal warning signs of decompensation as may be provided by treatment professionals, friends or family.

Recommendation 9:  Emergency Response

Several vicinities in California are developing successfully law enforcement/mental health collaboratives to ascertain that appropriate disposition occur when people with mental illness are in desperate need. Examples include the Los Angeles County MET/SMART program and San Jose’s developing CIT (Police Crisis Intervention Team). These projects have proven to provide humane compassionate response to the individual in a manner that assures public safety and decreases the chance of violence.

Recommendation:Each county develop an emergency response capability under a legislative framework which requires law enforcement and mental health interagency collaboration, increased law enforcement training regarding mental illness, and standardized training for response teams.

Recommendation 10:  Psychiatric Mobile Response Teams (PMRT)

Discussion:Psychiatric mobile response teams (PMRT) have recently become an essential part of mental health systems. Also known as PET (psychiatric emergency teams), these teams consist of mental health workers who are empowered by the LPS laws to place individuals on involuntary holds. They generally respond to emergent situations rather than immediate situations which are more likely to be handled by law enforcement. Current LPS legislation does not adequately regulate their operations. As a result, there is now an extraordinary variation in availability and function of teams throughout California, leaving mental health stakeholders confused and frustrated.

Current LPS statutes give no guidance as to obligations of public mental health systems to provide structure, resources, and monitoring of PMRT. Especially worrisome is the growth of relatively unregulated private PMRT composed of members of the attending staffs of various private hospitals. While these teams may augment strapped county resources, private teams may have undue financial incentives to involuntarily hospitalize individuals at their facilities.

Recommendation:Each county develop a system to ensure that psychiatric mobile response teams (PMRT) operate within a legislative framework that requires a specific administrative entity to be responsible for oversight and accountability of such operations, and that requires standardized and uniform training, credentialling, designation, and monitoring of all public and private PMRT personnel.

Recommendation 11:  Uniform Standards for Voluntary and Involuntary Hospitalization

Currently, since the implementation of managed care, a new problem has arisen. Much concern has been perceived among voluntary patients that they must now be "5150-able" to be hospitalized. "Medical Necessity" under Medi-Cal consolidation may not be defined consistently county to county. Real "medical necessity" does not vary between the person who voluntarily accepts hospitalization and those who need treatment involuntarily because they do not recognize their brain dysfunction. It is based on the severity of symptoms. Treatment, whether voluntarily or involuntary, must be provided to people before their conditions deteriorate to the point of danger.

Recommendation: The standards for both voluntary and involuntary hospitalization be uniformly implemented and monitored statewide. A person who is willing to be hospitalized voluntarily must not be required to be hospitalized involuntarily to receive services.

Recommendation 12:  Funding

Discussion:There is no doubt that California’s public mental health system is under funded. Yet the cost of untreated mental illness does not stay within neat budgetary lines. There are many indirect costs to society resulting from untreated mental illness including lost productivity, increased use of general medical services, crime/incarceration, and use of social welfare benefits. In 1990, the indirect cost to U.S. society because of mental illness in the United States was conservatively estimated at $75 billion including lost productivity and earnings due to illness and premature death. If only 80% of people with mental illness obtained treatment, two thirds of premature deaths attributable to mental illness would be averted and there would be at least a 10% reduction in use of general medical care by people with mental illness. (Source NAMI Science and Treatment kit) A 1996 study by Pacific Research Institute showed that California spends between $1.2 to $1.8 billion a year in criminal justice costs related to untreated mental illness. The human tragedy is incalculable.

California has already recognized that mental health care is a basic human service and that a system of care for adults, as envisioned under WIC 5801, can provide greater benefit to people with severe and persistent mental illness at a lower cost than the current practices within the state. Yet, we have not directed the funding necessary for an adult system of care. While avoidance in costs is conceivable through the streamlining of procedures within the LPS Act and through the utilization of Community Assisted Treatment, for every one person now receiving treatment in California, another is not. California’s mental health system will remain seriously fragmented and unable to convey recovery to individuals, as well as save the overall societal cost associated with lack of treatment, until a real dedication to the needs of mentally ill individuals is funded.

Recommendation: California fund the Adult System of Care with components to assure prioritization of services to the most seriously disabled mentally ill adults whether services are needed by them on an involuntary or voluntary basis. The recognition that some people, due to the severity of their illness, will require treatment involuntarily must be incorporated into the Adult System of Care legislation and recognized as a form of community assistance.

History of LPS - Carla Jacobs

Overview:

The human dimensions of the problem facing reformers were stunning. In California, 26,567 people lived in an antiquated and fragmented state hospital system.² Patients included people with mental illness, public inebrients, children with behavioral problems and old folks with nowhere else to go. Sixty percent of all people in state hospitals were on nonvoluntary status.³ California, however, had already pioneered some of the best practices in the nation for care of its committed patients.

Extramural Care Program

In 1939, Department of Mental Health Director Dr. Aron Rosanoff initiated an "extramural care program" to "break down the walls between the hospital and the community" and to help patients to re-integrate into the community. Patients could be either unconditionally discharged from in-patient hospitalization or placed "on leave," if it seemed that they might require help and supervision during community re-entry. The Division of Adult Protective Social Services (known as the Bureau of Social Work prior to July 1, 1966) helped patients "on leave" to find employment and to obtain welfare assistance and housing. Convalescent leave psychiatrists, working in regional bureau offices, provided consultation and dispensed medication. Workers conducted "home visits" with former patients in order to make sure that they were managing satisfactorily on their own. In 1966, approximately 20,000 people were "on leave" from state hospitals.⁴

Dr. Rosanoff's extramural care program was credited with having forestalled a far worse wartime deterioration of state hospitals than that which actually occurred. But, during the 1950s, California's population spiraled; state hospital populations grew exponentially, overtaxing existing facilities. In some hospitals, two patients shared a single bed and surplus army cots filled every nook and cranny. Poorly paid nursing staff were wont to keep up with the vast numbers of patients. Community-based services were seen as the solution for patients who might otherwise have been sent to overcrowded, and, generally, remote, hospitals. It was also thought that the provision of community-based services might reduce the need for capitol outlay for construction and reduce the expense of hospital maintenance and staffing.

Short Doyle Programs

In 1958, a community-based mental health system was established under the Short Doyle Act, a state-county matching program initially funded on a 50-50 cost sharing basis. In 1963, the matching formula was revised to the counties' advantage to 75-25 for newly-initiated programs. During 1966-67, Short Doyle programs were authorized to spend $34 million in public money, two-thirds of which came from the state and one-third of which was provided by counties. Short Doyle programs were controlled, for the most part, by counties. (Exceptions included three programs -- one in Berkeley, one in San Jose, and one in the Greater Los Angeles area). In 1966, 41 Short Doyle programs operated in 38 of California's 58 counties, representing 96 percent of the state's total population.

Over half of these programs included both inpatient and outpatient services. In 1966, approximately 115,000 people received services from Short Doyle programs, closing the year with a caseload of nearly 33,000 people. Ten percent of Short Doyle patients were inpatients in community hospitals. The Short Doyle system, however, was not acting as a deterrent to the state hospital system; during that same year, state hospitals admitted 28,834 patients, 60% of which were first-time inpatients, while the balance were re-admits or court-ordered admissions.⁵

Continuum Theory

The failure of the Short Doyle system to deter entry to state hospitals can be attributed, in part, to a post war shift in psychiatric thinking toward a psychodynamic and psychoanalytical model that emphasized life experience and the role of socioenvironmental factors as key in the development of mental illness. This is known as the "Continuum Theory." The Continuum Theory postulated that mental illness was the result of social degeneration and that if social and environmental conditions were ameliorated before degeneration, mental illness could be prevented.⁶

People in Short Doyle programs, generally of higher socioeconomic status than state hospital patients, were thought to have "problems in living." Community mental health care providers, guided by the Continuum Theory, sought to prevent mental illness by intervening in such problems while the individuals were still "mentally healthy." Less generously explained, Short Doyle programs were notorious for accepting "easy" patients; people who were poor, black or psychotic generally went directly to state hospitals.⁷ Ironically, the community mental health care system is still accused by many as "putting away" more difficult patients -- this time in jails and prisons.

The Dilemma Report

By 1966, state appropriations for state hospitals totaled $111.5 million. Overall the appropriations for the Department of Mental Health was $190 million with a portion going to facilities and services under its auspices and the Short Doyle matching funds. The state hospital system was almost completely financed by the State General Fund. The Department was second only to the University system in terms of outlay and staffing.⁸

The dilemma posed in California was how to stem entry into the state hospital by encouraging the community system to accept more patients, hopefully improving quality of care while allowing state expense to be alleviated by the newly available federal funds. Jerome Waldie, democratic majority leader of the California Assembly, and his chief aide, Art Bolton, started searching for a conduit. Earlier that year, a Special Fact Finding Committee on the Judiciary had produced a lengthy report concluding that while commitment laws were in scattered disarray throughout the Welfare and Institutions Code, existing legislation ensured sound medical practice and adequately protected the fundamental legal rights of patients.⁹ Waldie and Bolton thought differently. In January 1965 the California Medical Association had published a report on conditions within state hospitals. The report found that without adequate staff, equipment, and space, most state hospitals were unable to provide state-of-the-art treatment. Waldie and Bolton recognized that the linchpin to the entry of the state hospital system was through the commitment process.¹⁰

To focus public and legislative interest on mental illness is a daunting task, but a necessary one in order for major legislative reform to take place. The Assembly Subcommittee on Mental Health, which Waldie chaired, set out to develop a working knowledge of contemporary thinking about mental illness and commitment. They reviewed the legal and scientific mental health research literature available to them at that time and conducted public hearings. The Subcommittee contracted with a private research firm, Social Psychiatry Research Associates of San Francisco, which defined itself as "researchers engaged in a series of social surveys generally focused on the community careers of people labeled as deviant." The mandate of the research firm was to assist in designing and completing a survey of the courts and to process and analyze the data collected. The findings were then synthesized into a document known as "The Dilemma Report."^{11 12}

The research leader was Dorothy Miller, an adherent of Erving Goffman who postulated a phenomenological argument that denied mental illness as anything more than a condition caused by institutionalization. Goffman's theories permeated the Dilemma Report, just as they had flooded popular imagination through Ken Kesey's One Flew over the Cuckoo's Nest.

Another popular sociologist used as reference for the investigation was Thomas Scheff, a professor of sociology at the University of California at Santa Barbara, who esoterically promulgated a theory that while many people might exhibit symptoms of mental illness, these people are no more than residual rule breakers and mental illness only exists as a label -- or a definition -- by group culture for its "social losers." He later became known as the "father of the labeling theory."

Other influences included R.D. Laing, who argued that mental illness is a socio-political event and once compared schizophrenia to a self-enlightening acid trip, and Thomas Szasz, who published, in popular magazines, his flamboyant argument that mental illness is a myth used by totalitarian governments to gain social control.

The sociological confusion surrounding the nature of mental illness in the 1960s was well stated in The Dilemma Report which said, "The term 'mental illness' is a nonscientific, generalized popular label used to describe a wide range of behavior which is considered 'peculiar' or 'sick' or objectionable . . . it does not reveal the cause of any individual's difficulty. . . . It is also evident that when a person's behavior is labeled 'mental illness,' those who do the labeling are guided by their own concepts of what is normal and abnormal. Madness, like beauty, may exist in the eye of the beholder. . . .Despite all these uncertainties the general public, its elected representatives and civil servants have perpetuated the commitment court and mental hospital system as a means of disposing of a variety of disagreeable social problems."^{13 14}

The Dilemma Report proposed doing away with the entire commitment scheme, removing reference to "need for treatment" and replacing the criteria with strictly limited behavioral standards. However, the report observed, "Most people who believe themselves to be mentally ill, or whom others believe to be mentally ill, do have some kind of problem and may benefit from some kind of assistance."¹⁵

An Emergency Services Unit (ESU), envisioned as a replacement to the former commitment process, was proposed as a place where people could come, both voluntarily or "through the help of others," for evaluation and services. Another sociological theory popular at the time was that mental illness was a reflection of poverty biased by middle class standards which could be "cured" by financial aid. The ESU recipient would therefore be given a wide choice of community services while the ESU staff investigated and clarified the financial resources available in each case.¹⁶ Additionally, the ESU would provide short-term suicide prevention counseling and other such emergency medical, legal or social services the authors believed would ameliorate crises situations. All ESU services would be voluntary, subject to termination by the individual at any time.¹⁷

A one-day commitment court survey was conducted for the Mental Health Sub-committee by volunteers from the California Mental Health Association. Surveyors reported that only 8 percent of all people appearing before the court on that day appeared to be "dangerous to others" while 18 percent constituted some manner of "danger to themselves." The others were committed because the court found them in "need for supervision, treatment, care, or restraint."¹⁸

It was concluded that few people would require help on a nonvoluntary basis and that if community services were offered, they would be accepted. The paper acknowledged that there would be some exceptional emergency cases where individuals might be too disabled or uncontrolled to participate in planning for their own needs.¹⁹ For these people, the plan proposed non-voluntary crisis placement for a maximum of 14 days. Certification for such placement required a written affirmation by a physician, after ESU staff agreed that all other alternatives had been exhausted, that: (1) the person was gravely disabled; or (2) he\she was exhibiting destructive behavior and appeared to be an immediate threat to other people; and (3) the individual had refused voluntary treatment. There would be no due process, other than the ESU's review for this period of time, unless the individual requested a court hearing. In spite of this certification, however, the patient would be allowed to leave after 14 days if he/she did not wish to remain for voluntary treatment. If after 14 days the person remained "gravely disabled," as evidenced by his/her inability to provide food, shelter, or clothing, guardianship could then be initiated through the courts. The "dangerous" would simply be released; to keep them longer, in the minds of the authors, was simply a case of preventative jailing.

The Dilemma Report also suggested that suicidal patients should not be involuntarily treated, but should, instead, be given preventative counseling at the ESU. The Report states: "Even if the state were to hospitalize suicidal patients for their own protection, there is no evidence that it is possible to prevent people from killing themselves if they are determined to do so." The report noted that even "on leave" patients had a ten times greater suicide rate than that of the normal population and that trying to prevent suicide, when attempting to teach responsibility to the patient, might be the worse possible therapy. Suicide was not, after all, a violation of California law.²⁰

"When these steps have been taken," the Report's section on civil commitment ends, "state hospitals as we now know them, will no longer exist."²¹

In May 1966, Waldie won a special election called to fill the congressional seat vacated by death of its incumbent. His co-chairs on the subcommittee, Nicholas Petris and Frank Lanterman assumed operational responsibility for the project. Because of an election bid to the Senate for Petris, captainship fell to Lanterman.

Lanterman Petris Short Act

The Dilemma Report was released on November, 28 1966. Its draft legislation got off to a flowery start, only to be met with the usual support/opposition based on ideologies and turf wars. At a early public hearing, Dr. Warren Vaughn set the tone of both opposition and support to the bill when he praised its emphasis on community services, but gave qualm to the limitation of seventeen days (three days of observation and fourteen days commitment) for involuntary commitment. He strongly recommended that suicidal people also be included for potential nonvoluntary treatment, and that the definition of gravely disabled be broadened.

Maurice Rodgers, spokesman for the California State Psychological Association, called the plan the "Magna Carta of the Mentally Ill," while the American Civil Liberties Union (ACLU), officially in support of the legislation, raised objection to the fact that the patient had to personally petition for a due process hearing at the initial point in the commitment. (The current probable cause hearing at 72 hours was legislated after a court case in 1978, known as Doe v. Gallinot.)

Some Short Doyle administrators objected to the ESU which would have been funded through MediCal. They viewed the ESU as a potentially competing community mental health system to their own, which was limited by the amount of match given by the counties. The bill was subsequently redrafted to make it difficult for the county supervisors to bypass Short-Doyle directors for evaluation and treatment services. The California State Association of Counties (CSAC) thought the bill would add extra financial burden on the counties.²²

Frank Lanterman himself noted the inadvisability of releasing people who were potentially dangerous after the 14 days hold.

Perhaps the most colorful support came from ninety-one year old Mr. Simpson who said he had once spent seven months in Agnews State Hospital as a "political prisoner." Raising a paperback copy of Ken Kesey's One Flew over the Cuckoo’s Nest, he said it told the truth about mental hospitals.

The commitment bill was amended nearly 300 times, and was as good as dead during the legislative process until Frank Lanterman refused to allow another bill out of a committee he chaired unless the commitment bill was amended into it. The bill which accepted the amendment was a popular piece of legislation authored by Senator Short, which called for an increase in state financial participation in the Short Doyle system to a 90/10 ratio. As a result the new commitment scheme became known as Lanterman, Petris, Short Act (LPS).

LPS was signed into law in 1967 by Governor Ronald Reagan, the same year in which his budget act abolished 1700 hospital staff positions and closed several of the state-operated aftercare facilities. Reagan promised to eliminate even more hospitals if the patient population continued to decline. Year-end population counts for the state hospitals had been declining by approximately 2000 people per year since 1960. The LPS Act became effective January 1, 1969 giving the system a year to reconstitute itself to the new procedures.²³

The LPS Act was a seminal doctrine. Its goal was the end of inappropriate lifetime commitment for people with mental illness. The memorialization of this doctrine remains excellent. It firmly established in the mind of the state and the public that people with mental illness are entitled to civil rights, nondiscrimination, treatment and community life. However, like Dorthea Dix's good intent when she first proposed state hospitals, implementation of the act has become threadbare.

A New Dilemma

Consensus does not exist on whether most long term placements in state hospitals would have not ceased naturally with the advent of more effective medications and monetary incentives toward community placements.²⁴ An unwritten goal of the LPS Act was to prevent the Short-Doyle community system from "dumping" difficult, seriously mentally ill patients.²⁵ After the statue's passage, the community mental health system reconstituted itself to accommodate additional patients who previously had been placed in hospital because of financial or social dependence and who could accept treatment voluntarily. But, the new stringent behavioral criteria for involuntarily committing a patient to treatment applied to both state and community hospitals. How to handle the serious, hard to reach patients -- who clearly needed treatment but did not fit the new criteria or who recycled through short term stays -- became a community dilemma. For them, there was nowhere to go.²⁶

Frank Lanterman would say days before his death, "I wanted the LPS Act to help the mentally ill. I never meant for it to prevent those who need care from receiving it. The law must be changed."²⁷

Revolving Door

By the late 1970s, papers about the "new chronic patient" began to be presented at psychiatric conferences. These individuals were often referred to as "revolving door" and "treatment resistant" patients because of their frequent admissions to, and rapid discharges from, psychiatric hospitals. This generally occurred because these patients failed to follow through with outpatient care recommendations, and suffered relapses.²⁸

Early on Senator Frank Lanterman recognized serious missing links in the system of care he envisioned through the LPS Act, which seemed to contribute to the rising number of patients recycling through short-term hospitalization. He convened a wide-spectrum task force, including law enforcement, defense attorneys, prosecutors, psychiatrists and other treatment professionals. As a result, he introduced a bill in 1974, allowing "outpatient committal" of these patients on parens patriae basis. The bill became subjected to the beliefs of the era which considered any form of commitment by the State for mental illness an undue use of totalitarian control and therefore suspect. The legislation was subsequently amended to allow such proceedings only if the person was an "immediate danger to others," and passed the procedural rigors of the 180-day commitment judicial process. Thus, effectively what was intended as a "safety net" for seriously ill individuals was still unavailable to the "chronic patient" -- who, like the majority of people with mental illness was not dangerous, just very ill.²⁹

By 1982, it was clearly established in the literature that California's county jails had become de facto institutions for people who didn't succeed in the increasingly short-term hospitalization and voluntary community treatment environment.³⁰

California is still experiencing the reality of recycling patients, a costly situation both in terms of human suffering and economic impact. Typically what happens with revolving door patients is that they stabilize during a hospital stay, but only continue their medication and outpatient therapy for a short time after discharge, if at all.³¹ Most relapses in people with mental illness who have been hospitalized occur because of medication noncompliance; noncompliance rates are significantly higher during the first few months after discharge than at any other time.³² Between July 1, 1997 and June 30, 1998, Los Angeles County had a total of 12,208 unduplicated patients who were involuntarily hospitalized. Of this group, 90% were admitted to the hospital only once or twice (9,213 and 1,844 respectively). There were 1,151 patients admitted three or more times -- ranging from 594 people admitted three times to one person who was hospitalized 20 times in that year.³³

The expense of this recidivism is shocking. If the approximate cost was $434 per hospital day, involuntary treatment cost Los Angeles County $86,333,450 for fiscal year 1997-1998. This figure does not include auxiliary costs, such as law enforcement and judicial expenses. The 10% of patients who recycled through the system used 25% of its involuntary hospital budget. Patients who were admitted to involuntary treatment three or more times cost the County $20,695,724.³⁴ Significantly, the average length of stay for those who only had one or two admissions was 11.8 days; those with three or more admissions averaged 7.79 days, just slightly more than the time normally used for the evaluation period and the probable cause hearing.

No study is available indicating how many times these recycling patients have been in jail, or on the streets on their way to rehospitalization. A study by an ad hoc group of psychiatric residents in Los Angeles, however, found that patients with schizophrenia released from nonvoluntary hospitalization by legal hearing because they did not meet the stringent behavioral criteria for involuntary treatment were likely to spend 28 days in jail mental health treatment over the next year. Those who were allowed to remain until medical decision determined release averaged one day in jail.

Over the last 30 years, the number of patients who once might have been in State hospitals, but are now on the streets, or in our jails and prisons, has risen significantly. In 1968, the year before LPS was implemented, the year-end population in State hospitals was 35,739.³⁵ Today, state hospitals are primarily forensic and house fewer than 4,000 mentally ill patients. Between 20,000 and 30,000 people with mental illness are in our jails and prisons. At least an equal number are homeless on the streets.

A significant number of people with mental illness need more structure and support than the community service system currently provides. Instead, they revolve from the hospital to the streets, and to jail. For them, we have replaced one inadequate system of care -- keeping people institutionalized for long periods of time -- with another inadequate system of care.

The Current Legal System

Overview

Specific Provisions of LPS

The statute regulating the authority of the state is codified in the  Lanterman-Petris-Short Act (LPS). Beginning in the California Welfare and Institutions Code Section 5000, the LPS Act covers a wide range of topics including voluntary and involuntary treatment, patients rights, confidentiality, and conservatorship. The heart of LPS -- the rules that govern involuntary treatment -- is the topic of this discussion.

Under Section 5150 of LPS, only certain individuals may place a person into involuntary hospitalization to initiate the first 72-hour period for evaluation and treatment. These individuals include law enforcement officers, members of the attending staff of an evaluation facility designated by the county, members of a designated mobile crisis team, or other professional persons designated by the county. A person may not be involuntarily hospitalized by family or friends.

Section 5150 of LPS also defines the circumstances under which an adult may be involuntarily placed in a psychiatric hospital designated by the county. There are two requirements for involuntary hospitalization: First that the individual has a mental disorder and second, as a result of that disorder the individual is a danger to self or others or gravely disabled. Gravely disabled is defined as an inability to take care of one's basic needs, such as those for food, clothing or shelter. The law does not define mental disorder nor does the law define what constitutes a danger.

Many professionals who place a person into involuntary treatment assume that danger must be active: the person is actively suicidal or making threats thereof, or threatening or actually physically injuring another party. This is not true. Danger comes in many forms, including passive danger such as endangering one's child or own health & safety through behaviors caused by untreated symptoms of mental illness. Such passive danger could include, not taking needed medication for a serious medical condition or exposing oneself to violent elements on the streets. As a result of this misinterpretation of danger, many people who don’t fit the "boxed" view of grave disability or danger but who need and would benefit from medical treatment for their mental illness are unable to receive it. In other cases, the complex procedures within the LPS Act weed out people who are genuinely suffering and in need of treatment.

The Current System

If a person is considered to be a danger to self or others, or gravely disabled due to mental disorder, WIC Section 5150 allows 72 hours of hospitalization in a designated facility for evaluation and treatment. If at any time an individual who is involuntarily hospitalized no longer meets the criteria under LPS, he/she must be released. If at the end of the 72-hour period the person is still dangerous to self or others, or gravely disabled, Section 5250 allows certification for a 14-day period of involuntary hospitalization. Prior to certification, the patient must be given the opportunity to accept treatment on a voluntary basis. If after the initial 14-day certification, the patient continues to be dangerous or gravely disabled, additional extensions may occur, but the extended hospitalization requires stronger showing of dangerousness than the original 14-day certification. Stays beyond the 14-day certification are sometimes referred to as postcertification holds. In the case of the gravely disabled, a temporary conservatorship might be filed to extend the length of stay pending a permanent conservatorship.

After the original 17 days (the initial 72-hour hold and the additional 14-day hold) the length of extended hospitalization depends upon which criteria the involuntary hold is based. Under Section 5260 of the Welfare and Institutions Code, individuals who threaten or attempt to take their own life during the 14-day intensive treatment period may be held for a second 14-day intensive treatment. The criteria for the second 14-day hold requires suicidal behavior (threats are considered behavior) rather than just general dangerousness to self. After the second 14 day certification, if the person remains suicidal, they must be released.

Individuals who pose a demonstrated danger of inflicting substantial physical harm on others may be confined for up to 180 days for further treatment after the initial 14-day period. Proof of danger must be based on actual infliction, attempt, or serious threat of harm during, or just prior to, the initial hold. Rarely are people in California placed on 180-day holds because of the procedures and costs necessary to obtain one. Additionally, danger of this level frequently requires arrest. Thus, unless a person who has been brought in as a danger to others can be "made to fit" the gravely disabled or danger to self criteria due to suicidal behavior, they will be released after 17 days unless showing demonstrated danger.

Finally, a person who is gravely disabled may be certified for an additional 30 days of intensive treatment or placed on a temporary conservatorship. The additional 30-day hold is used in only a few counties. Most often a temporary conservatorship is appointed. The temporary conservator has the authority to authorize an additional 30 days of hospitalization. Following a temporary conservatorship and a full investigation considering conservatorship, a conservatorship for one year may be established by the court. This conservatorship is renewable at the end of each one-year period.

Informal Due Process

An informal due process occurs during the initial 72-hour evaluation period in that only designated persons can place the person in hospital, and the designated person must have a reasonable belief that the person fits the criteria of the statute. Furthermore, at any time the treating physician believes the person no longer fits the criteria, the patient is to be released.

Gallinot Hearing - Probable Cause

If, at the end of the 72 hour evaluation, the person who has been detained appears to continue to fulfill the criteria, the person can be placed on a 14 day hold. A certification review hearing is conducted within 4 days of the beginning of the 14 day hold. Also known as a "Gallinot" hearing after the court case which required its legislation (Doe v. Gallinot, 657 F.2d. 1017 (9th Cir. 1981)), this procedure is sometimes referred to as a ‘probable cause’ hearing. It is an automatic hearing and does not have to be applied for by the patient. Certification review hearings are non-judicial proceedings that usually take place at the treatment facility. Either a court-appointed commissioner or referee, or a certification review hearing officer, conducts the hearing. During the hearing the treating psychiatrist or his designee presents information regarding the need for continued hospitalization. The patient is entitled to assistance by an advocate. The patient or his advocate may present evidence and cross-examine opposing witnesses. Additionally the patient may request attendance of any facility staff who participated in or has knowledge of the 14-day certification.

Writ Challenges - Gallinot Hearing

Section 5275 of the Welfare and Institutions Code gives the patient possibility to challenge the Gallinot hearing decision and any additional holds by means of a judicial review known as a writ. A hearing on a writ must be conducted by a judge and held within two days of the request of the patient. In the writ proceedings, the government bears the burden of proof by a standard of preponderance of evidence.

Riese Hearings - Medication

Although Section 5152 was written to provide detention and treatment, currently under California statute medication may not be given an involuntarily hospitalized person who refuses it, except in emergency situations. An emergency is defined in WIC 5008 (m) as a situation in which action to impose treatment over the person’s objection is necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first to gain consent. Thus, a person with mental illness may be involuntarily detained in a hospital for "evaluation" and "treatment", but not receive treatment.

To provide pharmacological treatment for such a patient, the treating physician must petition the court to have the patient declared unable to consent for such treatment. This petition, the Riese petition, can only be filed after the psychiatrist has made repeated efforts to obtain the patient’s consent. After the petition is filed, a "Riese" or capacity hearing is held, the goal being the determination of whether or not the patient has the capacity to consent or refuse the administration of medication. During the hearing, the treating psychiatrist must present evidence to prove the patient’s lack of capacity. The patient is represented by an advocate, who along with the patient, can argue for the patient’s capacity. The court-appointed hearing officer, who must be an attorney, determines the patient’s capacity or lack thereof. If the patient is found to lack capacity to provide informed consent, the patient can be required to take the psychotropic medication prescribed by the treating physician.

Writ Challenges - Medication Hearing

Either the patient or the hospital may appeal the hearing decision to Superior Court If an appeal is requested by a physician whose patient is in a private facility, that facility must provide an attorney to be present on the hearing date. County Counsel generally presents cases for appeals requested by physicians in a county facility. A medication capacity hearing remains in effect only for the duration of a specific hold upon which the person is currently detained. A change in legal status necessitates a new medication capacity hearing if the person continues to refuse. Each capacity hearing has a subsequent right to appeal.

Due to the cumbersomeness of the medication hearing procedures, many hospitals and physicians working under near triage conditions in extreme budgetary and time restraints, are wont to call for a medication hearing unless the person is in extremely dire straits.

Thus, the practical application of a good idea -- allowing patients who do have medical capacity to make informed decisions regarding their medication -- becomes a procedural barrier against giving care to those who do not have capacity. At least one study found the average length of stay increased for patients for whom Riese petitions were filed, and restraints and seclusion was needed longer than for other adult inpatients.³⁶ In nearly all the cases where medication hearings were actually filed by the treating physician, the patient was found to lack capacity to refuse the prescribed antipsychotic medications.³⁷ The current application of the Riese hearings have increased the expense to the system while increasing time hospitalized and reducing the therapeutic value of hospitalization to the patient.

Conservatorships

The LPS Conservatorship application process, which generally begins during a 14 day hold, must be initiated by a professional person in a facility providing intensive treatment. It may not be applied for by a spouse, relative, friend or other nondesignated individual. Once the application is received by the Superior Court, the Court can appoint a Temporary Conservator who begins a 30 day period of investigation. The purpose of investigation is to determine the validity of the application with regard to the grave disability of the patient. During this investigation, the patient may challenge the Temporary Conservatorship through a writ proceeding. At the end of the 30 day investigation or allowed extensions, a hearing is held in Superior Court. The patient, the Temporary Conservator, and a psychiatrist involved in the treatment of the patient must attend the hearing. The patient is represented by a Public Defender. The judge, taking into account the report of the Temporary Conservator, the testimony of the psychiatrist, and the defense against the conservatorship presented by the Public Defender, makes a decision regarding the appointment of a Full Conservator. The 30 day investigation period may be extended if the patient requests a jury trial instead of the hearing. The Full Conservator may be a private party, such as a relative or friend of the patient, or a member of the Public Guardian’s office. If the psychiatrist is unable to appear or does not appear for the hearing, the Conservatorship will not be granted. The Conservatorship remains in place for one year. A conservatee may during any six month period of the conservatorship apply for re-hearing of both the issue or the terms of the conservatorship.

Renewal of the one year Conservatorship can occur. The Conservator must petition the Court for reappointment. A hearing will again be held in Superior Court with the patient represented by the Office of the Public Defender. The Court may require a treating psychiatrist or psychiatrist to appear. If the treatment professional is unable to appear or if the Conservator does not reapply, the Conservatorship may be discontinued. The Conservatee must also appear in court and the conservatorship not be renewed if he fails to appear.

It must be noted that LPS Conservatorships are not available to people who remain a passive danger to self due to inability to provide for medical or physical safety due to mental illness nor are they available to people who remain suicidal or have a past history of danger unless they also fit the criteria of gravely disabled as described in the statute.

A person with a psychiatric disability may also be conserved under the Probate Code. A Probate Conservatorship does not give the Conservator the authority to consent for the administration of psychotropic medications or to place the patient in a psychiatric treatment facility. Thus, Probate Conservatorships are rarely used in cases of disability due to mental illness.

Commitment for Demonstrated Danger

Outpatient Committal

There is only limited civil outpatient committal in California. Outpatient commitment occurs when the patient is required to comply with a treatment plan outside the walls of a psychiatric unit. Outpatient committal is the least restrictive form of involuntary commitment. Section 5305 of the Welfare and Institution Code allows outpatient commitment of individuals who had been previously placed on a 180-day hold because of demonstrated danger during their initial involuntary treatment certification. It does not allow outpatient committal for people who are passively dangerous to self, previously dangerous to others, gravely disabled, or suicidal. The person so committed may be placed on outpatient status if the professional in charge of the facility and the county mental health director advise the court the person will no longer be dangerous, will benefit from outpatient status, and will participate in an appropriate program of supervision and treatment. Because of the limit of 180 days, little time is allowed to utilize outpatient status as a successful mode of reintegration to the community and is another reason it is rarely used.

Summary - Jonathan Stanley, Esq.

Because of the tendency to make everything seem as if its judicial, California’s system for mandatory treatment is as complex as it is ineffective. The multitudes of checkpoints that must be surmounted are redundant and wasteful. The reason for multiple judicial/due process paths for those dangerous to others, suicidal and gravely disabled is unclear and unique in comparison to other state’s statutes. Judicial discretion in treatment placement and the relatively short length of treatment combined with a statutory obligation to release substantially recovered involuntary patients and a committee’s right to demand judicial review of his mandated care already provide overlapping protections against inordinately long treatment terms. To offer conservatorship as an option for the long-term care of gravely disabled individuals is understandable. To make it the sole means of extended treatment for those suffering from mental illness, unless they are proven an active threat to others, is incomprehensible. California’s system cries for a major overhaul or, ideally, a replacement: even if not to provide more treatment, then to maintain existing levels at greatly reduced costs.

Therapeutic Jurisprudence: The Impact of LPS on Recovery - David Stone, MD

As statutory and case law concerning the confinement and treatment of the mentally ill has evolved over the past thirty years, psychiatric research has responded with various attempts to quantify the impact of those legal changes on the citizen/patient. The majority of these studies have been critically reviewed by Paul S. Appelbaum, M.D. in his book Almost a Revolution: Mental Health Law and the Limits of Change.³⁸

Meanwhile, legal academia has itself responded to the law's sweeping changes. Over the past several years, a new area of enquiry in legal philosophy has emerged, namely therapeutic jurisprudence. Key thinkers in the area of therapeutic jurisprudence recognize that the weighing of only the personal and state interests is inadequate for mental health law; in addition, lawmakers and jurists must weigh the law's therapeutic impact on patient care and outcome. Refreshingly, some authors have urged legal scholars and scientists to "audit the law's success of failure" in the criminal and civil areas of mental health law, thus proposing critical, scientific assays of the law itself.

A recent large prospective study in the Los Angeles area has done just that, focusing on the Gallinot probable cause hearing and its impact on relapse and recidivism one year after discharge from inpatient care at Harbor-U.C.L.A. Medical center.³⁹ Historically, the probable cause hearing was amended into LPS statute after the California case of Doe v. Gallinot (486 F. Supp. 983). The probable cause hearing determines if the person meets the current criteria for involuntary treatment. Citing "massive curtailment of liberty", "adverse social consequences" of commitment, and the "substantial risk of erroneous application" of the grave disability standard, the District Court and Appellate Judges mandated probable cause review hearings to occur within seven days of confinement in every case of involuntary treatment.

The Harbor study followed 250 consecutive admissions to the hospital's two acute care settings. One year from the original admission date, the investigators compared the treatment outcomes of those patients for whom probable cause was found to the outcomes of those patients whose treatment was terminated when probable cause was not found. The results of this study were not only striking, but showed robust statistical significance.

Patients with major depression differed significantly in the time to enter outpatient treatment after discharge, despite standardized discharge planning in both groups: those who were allowed to complete their inpatient care entered outpatient treatment within 24 days of discharge, while those patients whose treatment was interrupted by the Gallinot hearing took over 173 days to enter the outpatient setting. Another trend emerged in the depressed: patients who completed their inpatient care averaged only 1.55 days back in the hospital over the follow-up year, while those whose treatment was curtailed by the hearing relapsed for an average of 14.25 days over the follow-up year.

Among patients with bipolar affective disorder, the completers and non-completers also differed significantly: patients whose treatment was cut short by the Gallinot hearing relapsed back to the emergency or acute setting within an average of 18 days, while those patients who completed their treatment without interruption did not relapse until an average of 65 days. These findings conform with clinical experience: as psychiatrists, practitioners of mental health law, and relatives of affected family members know, bipolar affective disorder is a relapsing-remitting illness. It is episodic. Furthermore, like seizure disorders, each inadequately treated episode of bipolar affective illness is associated longitudinally with faster relapse rates and stronger intensity and duration of each subsequent episode. Each interruption of treatment condemns the patient, ultimately, to worsening outcomes.

Finally, among patients with schizophrenia, Gallinot intervention assured significantly worse outcomes for the patient released from acute treatment. Patients who were retained in treatment spent fewer relapse days in the hospital setting compared to non-completers, and spent less than one day on average in treatment in the county jail over the following year. In contrast, those patients who were released prematurely by the probable cause hearing spent a greater amount of ti