BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 1421 A
Assembly Member Thomson B
As Amended August 12, 2002
Hearing Date: August 13, 2002 1
Welfare & Institutions Code 4
CJW:cjt 2
1
SUBJECT
Mental Health: Assisted Outpatient Treatment
DESCRIPTION
This bill would permit counties to provide court-ordered
outpatient treatment services for people with serious mental
illnesses when a court finds that a person's recent history
of hospitalizations or violent behavior, coupled with
noncompliance with voluntary treatment, indicate the person
is likely to become dangerous or gravely disabled without
the court-ordered outpatient treatment.
(This analysis reflects the August 12, 2002 amendments.)
BACKGROUND
Until the late 1960s, California and other states used a
broad "in need of treatment" standard for the involuntary
hospitalization of the mentally ill. Due to concerns about
how patients' civil liberties were affected by this
standard, the Legislature passed the Lanterman-Petris-Short
(LPS) Act in 1967, establishing a process that allowed
limited periods of involuntary commitment only if a person,
as a result of a mental disorder, is dangerous or gravely
disabled. The LPS Act became a model for many states in
revising their mental health laws to de-emphasize
involuntary commitment in favor of more community care.
Unfortunately, much of the community care envisioned by the
LPS Act never took place. Due to inadequate outpatient
services for mentally disabled people who do not meet
(more)
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commitment standards, many of these people have been
consigned to the streets, their conditions untreated and
worsening with time. For many who do meet LPS standards,
the stability achieved through treatment and medication
while hospitalized tends to evaporate upon their release,
either because adequate outpatient services are unavailable,
or because they fail or refuse to participate in voluntary
outpatient treatment.
As a result, many mentally ill people are experiencing
greater mental deterioration, have become homeless and
vulnerable to street crime, or have entered into a
"revolving-door" existence of repeated detentions and
releases under the terms of the LPS Act.
This bill would address the acknowledged failings of the
current system by creating an "assisted outpatient treatment"
(AOT) procedure, imposed by court order, to act as a bridge
between involuntary detentions and the unassisted street life
experienced by mentally ill individuals who do not accept
voluntary services. As introduced, the bill would have
applied to a broader class of the mentally ill than those
subject to involuntary hospitalization under the LPS Act, but
those broader standards were deleted from the bill, over the
author's objection, as one of several amendments made by the
Senate Health and Human Services Committee ("the June 29
amendments").
The author accepts many of the June 29 amendments,
particularly the enhanced due process protections, as
improvements to the bill. However, the author believes that
the application of current LPS criteria to an AOT program is
inappropriate, since those criteria define conditions
requiring immediate hospitalization. In an attempt to
provide AOT criteria that are more stringent than those
deleted by the June 29 amendments, but still somewhat
broader than LPS involuntary hospitalization standards, the
author has amended the bill to adopt the criteria set forth
in "Kendra's Law," New York's AOT statute, with some
modifications, as described below.
CHANGES TO EXISTING LAW
1. Existing law, the LPS Act, provides that a person may
be involuntarily detained for inpatient mental health
treatment when, as a result of a mental disorder, the
person is a danger to him or herself or to others, or is
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gravely disabled. [Welfare and Institutions Code Part 1,
Division 5. All statutory references are to this code
unless otherwise stated.]
Existing law defines "gravely disabled" as "[a] condition
in which a person, as a result of a mental disorder, is
unable to provide for his or her basic personal needs for
food, clothing, or shelter." [Sec. 5008(h)(1)(A).]
Existing law specifies the conditions of involuntary
detention as follows:
(a) Initial 72-hour hold -- For the evaluation and
treatment of persons who, as a result of a mental
disorder, are dangerous to themselves or others, or are
gravely disabled. [Sec. 5150.]
(b) Additional 14-day hold -- A person detained for a
72-hour hold may be certified for an additional 14 days
of involuntary detention and treatment if (1) the person
has been advised of the need for, but has failed to
accept, voluntary treatment; and (2) the medical staff
finds that the person continues to be a danger to self
or others, or is gravely disabled. [Sec. 5250.]
(c) Renewed 14-day hold if suicidal -- A person detained
as dangerous to self may be certified for an additional
14 days of involuntary detention and treatment, for a
total of 31 days, if the person continues to be
suicidal. [Sec. 5260.]
(d) Additional, renewable 6 month hold if "dangerous to
others" -- After the initial 72-hour and 14-day holds,
an additional 180-day detention may be imposed on a
person who is imminently dangerous to others, based on
recent threats, or attempted or actual infliction of
harm. [Sec. 5300 et seq .] The person may be placed on
an undefined "outpatient status" if the director of the
inpatient facility determines the person no longer will
be a threat to others and will benefit from outpatient
status. [Sec. 5305]
(e) Additional 30-day to one-year conservatorship if
still "gravely disabled," but not dangerous to self or
others -- After the initial 72-hour and 14-day holds,
an individual who continues to be gravely disabled and
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fails to accept voluntary treatment may be placed under
a 30-day conservatorship and then a renewable, one-year
conservatorship. [Sec. 5350 et seq .]
Existing law provides that persons on temporary holds may
refuse treatment with anti-psychotic medications, absent
an emergency or a determination of the person's incapacity
in a separate hearing. [Secs. 5325.2, 5332-5337.]
This bill would authorize, in participating counties, a
court to order a person age 18 or older into AOT if the
court finds by clear and convincing evidence that all of
the following criteria are met:
(1) The person is suffering from a serious mental
illness, as defined in existing law, and is unlikely to
survive safely in the community without supervision,
based on a clinical determination;
(2) The person has a history of lack of compliance with
treatment for mental illness that has:
(a) At least twice within the last 36 months been a
substantial factor in necessitating hospitalization,
treatment in a mental health unit of a correctional
facility, or incarceration (not including any
hospitalization or incarceration immediately
preceding the filing of the petition); or
(b) Resulted in one or more acts, attempts, or threats
of serious violent behavior toward self or others,
within the last 48 months (not including any
hospitalization or incarceration immediately
preceding the filing of the petition);
(3) The county mental health director or designee has
offered the person an opportunity to participate in a
treatment plan, the person continues to fail to engage
in treatment, and the person's condition is
substantially deteriorating;
(4) In view of the person's treatment history and current
behavior, the person is in need of Assisted Outpatient
Treatment in order to prevent a relapse or deterioration
which would be likely to result in grave disability or
serious harm to the person or others as defined in
Section 5150; and
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(5) Assisted outpatient treatment would be the least
restrictive placement necessary to ensure the person's
recovery and stability, and the person is likely to
benefit from the treatment.
This bill would allow a request for the filing of a
petition for an AOT order to be made to the county mental
health department by (1) an adult living with the person
who is the subject of the petition; (2) the parent, spouse,
sibling, or adult child of that person; or (3) specified
mental health and law enforcement personnel.
This bill would require the county mental health director
or designee to investigate the request, including
conducting an examination of the person who is the subject
of the petition, and to file the petition only upon a
determination that there is a reasonable likelihood that
all the necessary elements to sustain the petition can be
proved by clear and convincing evidence.
This bill would require the petition to state why the
subject of the petition meets the criteria for AOT
services, and to include an affidavit by the licensed
mental health provider who was directed to examine the
person by the mental health director, stating that the
provider either (1) after personally examining the person,
recommends AOT, and is willing to testify at the hearing;
or (b) attempted but failed to persuade the person to
submit to an examination, but has "reason to believe" that
the person meets the criteria for AOT.
This bill would require the court to hold a hearing within
five court days of receipt of the petition (conducted in
accordance with the rules of evidence), and would permit
the court to conduct the hearing in the person's absence,
if the person fails to appear after appropriate notice.
This bill would provide that, if the person refused to be
examined during the petition examination, the court may
request that the person consent to such an examination,
and if the person still refuses and the court believes an
examination is warranted, the court may order the person
to be taken into custody for up to 72 hours for
examination by a licensed mental health provider.
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This bill would provide that the person who is the subject
of an AOT petition would have the rights to (1) adequate
notice of the hearing; (2) a copy of the court ordered
evaluation; (3) legal representation at all stages of the
proceedings (by the public defender, if the person has not
retained counsel); and (4) at the hearing, to be present,
to call or cross-examine witnesses, and to appeal
decisions.
This bill would require the court, if it finds that the
person meets the AOT criteria, to order the person to
receive AOT services, set forth in a written treatment
plan as specified, for an initial period not to exceed six
months.
This bill further would provide that AOT services shall
not be ordered unless the court finds, in consultation
with the mental health director or designee, that the
specified services are available in the county.
This bill further would provide that, if in the clinical
judgment of a licensed mental health
provider, a person ordered into an AOT program has failed
or refused to comply with the order, efforts were made to
solicit compliance, and the person may be in need of
involuntary admission to a hospital pursuant to this bill,
the provider may request that person be detained up to 72
hours for evaluation by a licensed mental health provider
to determine if the person is in need of involuntary
treatment pursuant to Section 5150.
This bill further would require that, if at any time
during the 72-hour hold the person is determined not to
meet the criteria for a 72-hour hold, and does not agree
to stay in the hospital as a voluntary patient, the person
shall be released, and any subsequent involuntary
retention in a hospital shall be pursuant to Section 5150.
Failure to comply with an AOT order alone shall not be
grounds for involuntary civil commitment or a finding of
contempt of court.
This bill further would provide that, if the person
refuses to begin the AOT program as ordered, the court
shall order the person to meet with the treatment team.
Only after that attempt to gain cooperation with the
treatment team fails may the person be subject to a
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72-hour hold as provided by this section.
This bill further would provide that, at 60-day intervals
during an AOT program, the director of the program shall
file a declaration with the court confirming that the
person continues to meet the AOT criteria; the person
shall have a right to dispute the declaration at a
hearing, with the burden of proof on the director; and
during each 60-day period, the person may file a petition
for a writ of habeas corpus requiring the director to
prove the person continues to meet the AOT criteria.
This bill further would provide that after a petition is
filed, but before the conclusion of the hearing, a person
who is the subject of the petition may enter into a
settlement agreement approved by the court that shall have
the same effect as an order for AOT services issued
pursuant to Section 5346.
This bill would prohibit involuntary medication absent a
separate order by the court under the provisions of
existing law.
This bill would be operative only in any county where the
board of supervisors has authorized its application, and
has made a finding that any additional costs incurred by
the assisted outpatient treatment program will not result
in reductions in the county's current voluntary mental
health programs.
This bill would require counties implementing the AOT
procedure to provide specified services, which also would
be available on a voluntary basis, and would require
persons subject to AOT orders to be provided services by
trained mobile mental health teams with no more than 10
clients per team member.
This bill would require counties implementing its
provisions to provide specified data related to its use
and effects, and would require the State Department of
Mental Health to summarize this data in a report to the
Legislature at the end of the second and fourth years of
the program.
This bill further would require implementing counties to
work with other interested parties to develop a training
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and education program to improve delivery of services to
mentally ill individuals affected by this bill, which
shall include education as to the legal requirements for
commitment, and methods to ensure effective treatment and
to encourage individuals' informed consent to assistance.
This bill would sunset on January 1, 2008, unless extended
by the Legislature.
COMMENT
1. Stated need for legislation
The author notes that California recently has attempted to
address some of the failings of the LPS system by
expanding counties' voluntary outpatient mental health
services and increasing their funding. [ See , e.g ., AB
2034 (Steinberg), Ch. 518, Stats. of 2000, codified at
Section 5806.] These "AB 2034 programs" require the
development of a treatment plan for each client that
includes physical health care, psychiatric or
psychological services, medication, housing, and other
services designed to give clients structure and support in
their lives. Initial studies indicate that AB 2034
programs are helping many mentally ill people to function
in society, and have reduced the incidence of arrests and
hospitalizations previously experienced by the mentally
ill.
However, the author asserts that there remains a core
group of mentally ill individuals who simply are too ill
to voluntarily accept the services offered by AB 2034
programs. These are people whose mental illnesses are
severe and deteriorating, but either do not yet meet the
strict "dangerousness" or "gravely disabled" criteria for
involuntary commitment, or are deemed to be out of
immediate danger and released after a temporary LPS hold.
This bill would attempt to bring this "resisting" group
into the service programs provided through AB 2034 (with
some enhancements, as discussed below) using a tool
believed effective by many in the mental health community:
A court order.
The author states that a recurring theme in the research
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underlying this bill was the idea that a relationship with
a respected authority figure - a judge - often was the key
to cooperation for the recalcitrant mentally ill. Family
members would despair that their mentally ill relative
"would take his medicine when the court told him to;" the
few counties with mental health courts reported
substantial compliance by previously uncooperative
mentally ill offenders when ordered into treatment as a
condition of probation; and mental health scholars
emphasized that the mentally ill, like most other people,
are law abiding, and will comply with a court order
without the need for additional enforcement efforts.
[ See , e.g ., K. Kress, An Argument For Assisted Outpatient
Treatment , 85 Iowa Law Review 1 (2000), at pp. 81-82.]
This theme also appeared in initial studies of the effects
of "Kendra's Law," the New York AOT law on which the
author's bill is modeled. The studies indicated that 80
percent of the mental health patients receiving
court-ordered outpatient treatment were "medicine
compliant," and that in the 11 months covered by the
study, police did not enforce treatment orders, or
forcibly bring a court-ordered outpatient to treatment,
even once. [ Id . at p. 82.]
The author states that the intent of the bill is to bring
the relatively small core of severely mentally ill people
who are unserved by the current system, unable to help
themselves, and uncooperative with less directive efforts
to persuade them to accept outpatient services, into
compliance with AB 2034 programs, through a hearing
process that, where appropriate, would result in
court-ordered participation in those programs.
The only "enforcement mechanism" in the bill - the
possibility of a single 72-hour hold to determine if
hospitalization under current LPS standards is warranted -
is arguably modest, as contempt of court could be punished
by jail time (which is expressly disallowed as a remedy
for noncompliance by this bill). Enforcement, however,
is not the issue; instead, the author and the bill's
proponents expect that the court order itself will lead to
initial compliance, and the stabilization and improvements
achieved through outpatient treatment will lead to
long-term compliance.
2. Supporters say bill would help people and reduce mental
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health costs
As introduced, AB 1421 received strong support from mental
health organizations, law enforcement, and families of
mentally ill individuals frustrated by the inadequacies of
the current system. According to the National Alliance
for the Mentally Ill (NAMI) California, this bill would
enhance the quality of life, and even save lives, of
people disabled by mental illness by giving them the
support they need to live in the community. NAMI
California and other supporters state that AOT orders will
reduce repeated hospitalizations and incarcerations, and
halt the downward spiral of seriously ill people who fall
through the cracks of the LPS system.
According to both the Union of American Physicians and
Dentists and the California Psychiatric Association (CPA),
studies demonstrate that sustained outpatient commitment
can be highly successful for persons with serious mental
illness if they have at least 180 days of service, and
receive an intensive array of services to address their
very serious problems. These recommendations are
incorporated into the bill, which would require
court-ordered services to last a minimum of 180 days, and
to be administered by multidisciplinary mental health
teams with a staff-to-client ratio of no more than 10
clients per team member. (Existing AB 2034 programs
require substantially equivalent services to be
administered by multidisciplinary teams, but neither set
minimum time requirements for voluntary services, nor
require a specific staff-to-client ratio.)
Supporters of the bill stress that leaving very ill
persons homeless or incarcerated under a misbegotten
policy of "free will" is shortsighted and dangerous. In
the words of one mother whose son, suffering from a
schizoaffective bipolar condition, has been attacked on
the street and beaten up in jail,
There are many safeguards in the bill to protect a
mentally ill person's rights. They should finally be
given the right to have a mind that can allow them to
make informed decisions - not delusional ones!
3. Opponents' concerns led to June 29 amendments, but
opposition still remains
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Many mental health patient advocacy groups and civil
rights organizations oppose the concept of "assisted
outpatient treatment" for several reasons: (1) They
object to any involuntary treatment of mental health
patients under standards less stringent than current LPS
standards as unconstitutionally vague, overbroad, and a
violation of due process rights; (2) they assert that
lesser standards for outpatient care are unwarranted, as
conservatorships are available under existing law; (3)
they dispute the author's contention that a core group of
mentally ill are too resistant to accept voluntary
treatment, arguing that the real problem is lack of
sufficient voluntary outpatient services; and (4) they are
concerned that counties wishing to implement AOT programs
may take funds from existing voluntary outpatient programs
for that purpose.
Based on the above concerns, opponents raised numerous
objections to AB 1421 as introduced, which resulted in the
June 29 amendments in the Senate Health and Human Services
Committee. The majority of these amendments, which have
been accepted entirely or with minor modifications by the
author, are described below; the amendment restricting the
AOT criteria to existing LPS standards, which has been
deleted by the author in favor of a new amendment, is
discussed in Comment 4.
(a) Petition must be initiated by mental health
officials; cohabitants and family may request petition
The original bill would have allowed a petition for an
order for assisted outpatient treatment to be brought
not only by mental health and law enforcement personnel,
as permitted under the LPS Act, but also by the
subject's adult roommate, parent, spouse, sibling, or
adult child.
In support of this approach, proponents argued that the
LPS Act's "arms-length" approach to family and friends
of individuals with serious mental illness is one of its
greatest problems. They noted that some family members
have tried in vain for years to get critically needed
treatment for their loved ones, only to have the
designated mental health law and enforcement personnel
decline to petition the court or take the person into
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custody.
Opponents contended, however, that allowing friends and
loved ones to petition the court directly for an AOT
order could lead to abuses of the process, particularly
where acrimony existed between the petitioner and the
subject (as in custody or divorce proceedings). Even
though most family petitioners might be
well-intentioned, they would lack the objectivity and
training that should be required as the basis for the
initial filing decision.
Accordingly, the June 29 amendments require a petition
for an AOT order to be brought by the county mental
health director or designate. The roommates and family
members concerned about the person, however, could
request the director to initiate such a petition, and
the director would be required to investigate the
circumstances and petition for the order if the criteria
appeared to be met.
(b) Additional patient rights provided
The bill would provide that court-ordered involuntary
outpatient treatment would consist of a written plan of
specified services for an initial period not to exceed
180 days. Proponents of the bill cited various studies
indicating that the 180-day minimum period was crucial
to establishing effective treatment that would survive
the duration of the program.
In response to due process concerns expressed by the
ACLU and others, however, the June 29 amendments would
provide that a person who is the subject of a petition
would have the right to counsel at all stages of the
process; that, at 60-day intervals during the outpatient
program, the director must file a declaration that the
person continues to meet the AOT criteria; and that if
the person disagrees with the declaration, he or she
will have the right to a hearing, with the director
having the burden to prove AOT services should continue.
A further amendment would give the person the right to
bring a writ of habeas corpus at any time, requiring the
director to prove that the person continues to meet the
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AOT criteria, without having to wait to respond to the
director's declaration at 60-day intervals in the
program.
Finally, the author's most recent amendments would
provide that, if a person ordered into an AOT program
refuses to cooperate from the outset, the initial
enforcement mechanism would be a mandatory meeting with
the treatment team; only if the meeting failed to
persuade the person to cooperate would the additional
enforcement mechanism of the 72-hour hold be applied.
The author has further amended the bill to clarify that
the 72-hour hold may be applied only once as an
enforcement mechanism for AOT treatment; any subsequent
holds would be permitted only if the person met the
existing 5150 criteria.
(c) Funding restricted to savings or new sources
As introduced, AB 1421 would have permitted counties, if
they chose, to implement its provisions with existing
resources. Opponents argued that, since most counties
currently face fiscal cutbacks in their existing mental
health programs, other mental health programs might have
to be reduced to fund the bill's required services.
Further, opponents noted that many of the services an
AOT order would require currently are being provided in
voluntary, AB 2034 outpatient programs. The June 29
amendments would require implementing counties to make
specific findings that the involuntary outpatient
services required by the bill would be financed by new
funds or cost savings, so no existing local programs
would suffer funding losses.
After consultations with staff from the interested
policy committees and others, the author has modified
this amendment to delete the reference to authorized
sources of funds, while still requiring the board of
supervisors of an implementing county to find that no
existing voluntary mental health programs in the county
would be reduced by the implementation.
(d) Reporting and training requirements added, modified
by author
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As introduced, the bill would have encouraged
participating counties to provide data on the program's
use and effectiveness. The June 29 amendments would
require provision of this data to the Department at
two-year intervals; require the Department to report
this information to the Legislature; and require the
Department and participating counties to collaborate
with client and family advocacy groups to develop a
training program to improve delivery of services to the
mentally ill.
The author has modified these amendments to delete the
requirement that the Department participate in
development of the training program, in favor of a
requirement that participating counties consult with the
Department and other stakeholders, due to concerns that
imposing this fiscal requirement on the state might
prevent enactment of the bill. Further, the author has
modified the reporting requirement to be consistent with
existing reporting requirements for AB 2034 programs,
although the AOT reporting will require additional data.
This modification is expected to result in cost
savings for implementing counties.
(e) Sunset provision added
Finally, the June 29 amendments would provide for repeal
of the bill on January 1, 2008, unless the Legislature
extends or repeals that date.
(f) Opposition remains
Significant opposition to the bill remains, particularly
as the author has re-amended the bill to provide revised
criteria for AOT orders. Opponents argue that these
criteria are unconstitutional and unnecessary, while
supporters of the bill respond that the revised criteria
are crucial to the bill, as set forth below.
4. Should the author's revised criteria be applied to AOT
orders ?
As introduced, the bill would have allowed an AOT order
under two circumstances: (1) for a person with a psychotic
disorder, who previously responded to treatment, failed to
accept continued treatment, and whose condition is
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deteriorating; and (2) for a person with "any other severe
mental illness" resulting in at least two recent
hospitalizations, who failed to accept treatment, and
whose condition is deteriorating. In response to an
Assembly request, the author added a third criterion for
an AOT order: (3) the existing LPS standards for
involuntary commitments.
The American Civil Liberties Union (ACLU) argued that the
first two criteria were unconstitutionally overbroad,
because they would subject persons to involuntary
outpatient treatment who do not meet existing LPS Act
standards. The Coalition Advocating for Rights
Empowerment and Services (CARES) asserted that allowing
some counties to subject persons to less stringent
involuntary treatment standards than those required by
other counties would violate the Equal Protection clause.
The June 29 amendments deleted the first two criteria,
allowing a petition for an AOT order to be sustained only
for individuals found "dangerous to self or others" or
"gravely disabled" under the LPS Act. The author and
supporters of the bill have strongly objected to this
amendment as gutting the essence of the bill, which is
aimed at helping mentally disabled people with worsening
conditions whose plight is overlooked by current law.
The author has now amended the bill to delete the LPS
standards and to insert a modified version of New York's
AOT criteria. While similar to those in the original
bill, these standards are more stringent, as they would
(1) apply only to persons with a mental illness as defined
in existing law, as opposed to the original bill's
undefined references to a "psychotic disorder" or "other
severe mental illnesses;" (2) require proof of a history
of noncompliance with treatment, as indicated by recent
violent acts or threats, or recent multiple
hospitalizations; and (3) require a finding that, in view
of the person's history of noncompliance and current
behavior, AOT is needed to prevent the person from
deteriorating or relapsing to a condition of grave
disability or dangerousness - the existing LPS standards
for involuntary hospitalization.
(a) Author's criteria would require verifiable indicators
of mental deterioration
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Although opponents objected to the bill's original
criteria as vague, subjective, and difficult to prove,
those criteria - particularly as enhanced in the
author's recent amendments - actually require proof of
more objectively verifiable factors as conditions for an
AOT order than the existing LPS criteria require for
proof of dangerousness and grave disability.
For example, the proposed AOT criteria would require
proof of (1) a mental illness as defined in existing
law; (2) a history of noncompliance with treatment; (3)
repeated, recent hospitalizations, or recent violent
behavior; (4) a substantial connection between the
noncompliance and the hospitalizations or violent
behavior; (5) an offer of voluntary treatment extended
by the petitioner and declined by the subject; and (6)
substantial deterioration of the subject's condition.
Many of these criteria may be proved through hospital
records, police reports, and factual (as opposed to
opinion) testimony. The more subjective criteria (the
diagnosis of severe mental illness, the connection
between noncompliance with treatment and recent
behavior, and evidence of deterioration) are in areas
regularly addressed in competency proceedings, and
subject to common sense evaluation by a court.
Further, the amended criteria delete earlier references
to "psychotic" disorders in favor of mental illness as
defined in the LPS Act, which is:
a mental disorder that is severe in degree and
persistent in duration, which may cause behavioral
functioning which interferes substantially with the
primary activities of daily living, and which may
result in an inability to maintain stable adjustment
and independent functioning without treatment,
support, and rehabilitation for a long or indefinite
period of time. [Sec. 5600.3(b)]
This amendment would direct the court's determination
away from particular diagnoses outside the court's
expertise, in favor of a legal definition that focuses
on the connection between a person's alleged illness
and his or her observable behaviors.
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(b) LPS criteria fail to help many who need help
The author has submitted letters from hundreds of
individuals expressing despair over family members too
mentally ill to help themselves, but not "dangerous" or
"gravely disabled" enough to be helped by the existing
mental health system. According to case histories
provided by these family members or in local news
accounts, severely mentally ill people can be living
under freeways, eating out of dumpsters, dressed in
filthy rags, and be plainly delusional, and still be
considered insufficiently troubled to qualify for an LPS
hold.
Since the June 29 amendments limited the provision of
AOT services to persons meeting LPS standards for
involuntary commitment, many more letters have been
submitted urging a return to the broader criteria of the
original bill. Advocates believe that the LPS standards
for involuntary hospitalization should apply to people
who, in fact, need involuntary hospitalization; they are
inappropriate when the treatment at issue is outpatient
treatment, intended to help patients function in society
instead of allowing them to deteriorate until they must
be locked up.
Many mental health experts agree that, although the
"gravely disabled" standard appears broadly written, it
is applied so narrowly that many severely needy people
are excluded from its scope. Jon Stanley of the
Treatment Advocacy Center writes that, in actual
practice,
[The standard] only comes into play in the most
egregious of circumstances. Being "unable to provide
adequate food" is not enough [to meet the standard]
unless you are about to starve yourself to a state
that would need hospitalization for your physical
problems. Being "unable to provide clothing" is
irrelevant, as the lack of clothing can't lead to
serious physical injury. Being "unable to provide
adequate shelter" doesn't count unless the weather is
below freezing and you can't find a homeless shelter
and are in serious danger of freezing to death. The
person starts eating or the weather warms up and [the
person is considered] no longer "gravely disabled."
AB 1421 Thomson)
Page 18
Several newspaper editorials have advocated a return to
the original bill's criteria for court-ordered
outpatient treatment. The Los Angeles Times noted that
the criteria are such a slight expansion on the LPS
Act's "5150" commitment standards as to be dubbed "5149
and a half." Nevertheless, the "ever-so-slight lowering
of the standard" represented by the original criteria
would, according to a county sheriff quoted in the
article, "help 20 severely mentally ill people I know
who are living on the streets right now." ["Helping
People Off The Streets: A Tiny, And Huge, Change," Los
Angeles Times, June 26, 2002.]
(c) Existing conservatorship laws do not serve this
bill's target population
As opponents note, the LPS Act already provides for
outpatient treatment in two contexts: For those
hospitalized as "dangerous to self or others," the law
allows placement on undefined "outpatient" status if,
after a six-month hospitalization, the hospital director
determines that the patient no longer poses a danger
[Sec. 5305]; and for those hospitalized as "gravely
disabled," the law permits renewable, one-year
conservatorships for those who fail to accept voluntary
treatment after a 14-day hold [Sec. 5350 et seq .].
Opponents place particular emphasis on the availability
of outpatient conservatorships for those found to be
gravely disabled under the LPS Act, or for those found
to be lacking in capacity to make their own health care
decisions under the Uniform Health Care Decisions Act
(UHCDA) [Probate Code Sec. 4600 et seq .]. They argue
that conservatorship laws are adequate to provide
outpatient care to treatment-resistant mentally ill
individuals.
Supporters respond, however, that conservatorship under
the LPS Act requires initial commitment under the
"gravely disabled" standard, which, as over 30 years'
experience with the LPS Act reveals, is not being
applied to the core population of severely ill and
treatment-resistant individuals this bill is attempting
to serve.
AB 1421 Thomson)
Page 19
The UHCDA does not appear to contemplate application of
its provisions to the seriously mentally ill. Rather,
the UHCDA applies to adults lacking the capacity to make
their own health care decisions "except as otherwise
provided" under other laws, and expressly distinguishes
commitment to a mental health facility from the scope of
its provisions. [Probate Code Secs. 4651, 4652.] (The
LPS Act operates independently of the UHCDA, and does
not require a finding of "lack of capacity" under the
UHDCA as a basis for mental health evaluation or
commitment under its provisions.)
UHDCA conservatorships, powers of attorney, and advance
health care directives (relating to mental as well as
physical health), are defined in the context of
agreements entered voluntarily by persons of sound mind,
to deal with a potential future loss of capacity. As
such, the UHDCA is not in conflict with this bill's
provisions, but UHDCA conservatorships or advance health
care directives probably would not exist for most of the
people this bill seeks to serve.
(d) Constitutional concerns appear minimal for lesser
outpatient standard
Opponents' argument that any standard for court-ordered
outpatient treatment would be unconstitutional if
broader than existing LPS standards does not appear
well-founded. Their cited cases affirm the
constitutionality of the LPS criteria for the severe
deprivation of liberty imposed by involuntary
hospitalization; they do not address the
constitutionality of court-ordered outpatient treatment
imposed in an effort to keep the patient out of the
hospital. On the contrary, the balancing of the
interests of the state and the individual required in
due process determinations would appear to weigh in
favor of a less stringent standard for mandated
outpatient treatment, since it is a less severe
restriction on individual liberty than involuntary
commitment under the LPS Act.
Further, the constitutional concerns most at issue in
LPS cases were not vagueness or overbreadth, which were
disposed of fairly summarily, but the due process
protections required as a condition for infringing on an
AB 1421 Thomson)
Page 20
individual's protected liberty interest by involuntary
commitment. [ See , e.g ., Doe v. Gallinot (1981) 657 F.
2d 1017, 1023 (requiring a state-initiated probable
cause hearing for a 14-day LPS hold).] This bill
already requires a state-initiated hearing as the basis
for an AOT order, and recent amendments have added
further due process protections, such as periodic
declarations by the mental health director that the AOT
program is still warranted, which may be challenged by
the person subject to the order.
5. Cost considerations
The June 29 amendments, as modified by the author's recent
amendments, would require implementing counties to find
that implementation of AOT services would not result in
the reduction of existing voluntary mental health
programs. This amendment should allay many of the funding
concerns raised by opponents of the bill.
The additional court costs that would result from
implementation of an AOT process are another matter. The
Judicial Council has estimated that, based on a review of
statistics for Los Angeles, Sacramento, and Stanislaus
counties (considered likely initiators of AOT services,
due to the comprehensive level of mental health services
they already have in place), implementation by those three
counties could amount to a total cost of $1.5 to $5
million.
This estimate, however, was made prior to the June 29
amendments, which deleted the provision allowing petitions
to be brought directly by family members or cohabitants.
Presumably, the filter provided by requiring these parties
to request petitions to be brought by the county mental
health director would reduce the number of petitions filed
in court.
6. Suggested amendments
(a) Clarify that the mental health director or designee
authorized to file the petition for an AOT shall be
responsible for conducting the mental health examination
on which the petition is based;
(b) Clarify that service of a copy of the AOT petition
AB 1421 Thomson)
Page 21
and notice of hearing date includes the documents
supporting the petition, shall be made promptly after
filing, and shall be made personally upon the subject of
the petition;
(c) Delete the references to a mental health provider
filing a "statement affirming" a patient's need for
treatment, and replace it with "affidavit";
(d) Clarify that the discretionary court-ordered hold for
evaluation of a person who refused to be examined as the
basis for an AOT order shall result in an evaluation as
soon as practicable, and shall in no case exceed 72
hours; and
(e) Clarify that the single 72-hour hold permitted as an
enforcement mechanism in subdivision (f) of Section 5345
shall be for evaluation to determine if the subject of
the hold is in need of involuntary hospitalization under
existing law.
Support: (Supporting original bill and/or urging deletion
of June 29 amendments) ACLU Members for LPS Reform;
Alameda County National Association for the Mentally
Ill; Coachella Valley Alliance for the Mentally Ill;
California Association of Marriage and Family
Therapists; California Medical Association;
California Peace Officers' Association; California
Psychiatric Association; California State Sheriffs'
Association; Cascade Shores Women's Club, Nevada
City; City of Richmond; County of Ventura, Office of
the District Attorney; Get Involved for Mental
Health; Irvine Police Association; Los Angeles County
Board of Supervisors (in concept); Los Angeles County
Police Chief's Association; Los Angeles County
Sheriff's Department; Marin County Sheriff's Office;
Mayor of San Francisco; Mental Health Association in
Santa Barbara; Mt. San Jacinto Alliance for the
Mentally Ill; National Alliance for the Mentally Ill
(NAMI); NAMI Organizations (Asian Families, San
Gabriel Valley, Butte County, California Consumer
Council, Central San Fernando Valley, Contra Costa,
East San Gabriel Valley, Inland Empire North,
Glendale County, Lake County, Long Beach Area, Los
AB 1421 Thomson)
Page 22
Angeles County Coordinating Council, Los Angeles -
South Central Chapter, Marin County, Nevada County,
North Coastal San Diego County, Northern Santa
Barbara County, Orange County, Pomona Valley,
Sacramento, San Diego County, Research Institute,
Stanley Foundation Research Programs, San Gabriel
Valley, San Luis Obispo County, San Mateo County,
Shasta County, Southern Santa Barbara County,
Tuolumne County, Ventura County, Veterans Committee,
and Whittier); Nevada County Board of Supervisors;
Older Women's League of California; Oxnard Peace
Officers' Association; Oxnard Police Department
Community Police Advisory Board; Police Departments,
Cities of: Baldwin Park, El Monte, Fontana, Fresno,
La Habra, Long Beach, Monrovia, Napa, Pasadena,
Pleasanton, Ridgecrest, Selma, and Suisun City;
Sacramento County Sheriff's Department; San
Bernardino County Sheriff's Department; Silver Ribbon
Campaign for the Brain; SPAN-California; St. Clare's
Espiscopal Church; St. Paul's Episcopal Church and
Parish Day School; The Diocese of Los Angeles; The
John Randolph Haynes and Dora Haynes Foundation;
Trinity Church; Treatment Advocacy Center; Union of
American Physicians and Dentists; Ventura County
Health Care Agency; Ventura County Mental Health
Board; Ventura County Sheriff's Department; Yolo
County Sheriff's Department; 1,015 Individuals
Opposition: (Opposing original bill or supporting bill with
June 29 amendments) Advocates for Mental Health;
Air Duct Cleaning Company; Alameda County Network
of Mental Health Clients; American Civil Liberties
Union; California Association of Mental Health
Patients' Rights Advocates; California Association
of Social Rehabilitation Agencies; California
Council of Community Mental Health Agencies;
California Foundation for Independent Living
Centers; California Mental Health Directors
Association; California Mental Heath Planning
Council; California Network of Mental Health
Clients; California Psychological Association;
Coalition Advocating Rights Empowerment and
Services; Coalition of Californians for Olmstead;
Consumers Self-Help Center; Contra Costa Network of
Mental Health Clients; Human Resources Consultants;
Independent Living Resource Center, San Francisco;
AB 1421 Thomson)
Page 23
Interlink Self Help Center; Judicial Council of
California (unless amended to include court
funding); Mental Health Advocacy Project; Mental
Health Client Action Network; Mental Health
Consumer Concerns, Inc.; National Association of
Social Workers, California Chapter; National
Association for Rights Protection and Advocacy;
Project Return; Protection and Advocacy, Inc.;
Sacramento Citizens Commission on Human Rights;
Support Coalition International; The Bar
Association of San Francisco; Turning Point
Foundation; 363 Individuals
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: AB 1800 (Thompson), 2000, would have
revised "gravely disabled" standard in LPS Act
for purposes of evaluation and treatment (died
in Senate)
Prior Vote: Senate Health and Human Services Committee 7-0
Assembly Floor 65-1
Assembly Appropriations Committee 20-0
Assembly Judiciary Committee 7-0
Assembly Health Committee 11-0
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