BILL ANALYSIS
AB 1800
Page 1
Date of Hearing: April 25, 2000
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 1800 (Thomson and Perata) - As Amended: April 24, 2000
SUBJECT : REFORM OF CALIFORNIA'S INVOLUNTARY COMMITMENT LAWS
KEY ISSUES :
1)IS CALIFORNIA'S MENTAL HEALTH COMMITMENT LAW A FAILED
EXPERIMENT, OR A BROKEN PROMISE?
2)SHOULD THE EXISTING "GRAVE DISABILITY" STANDARD BE BROADENED,
OR MIGHT THE PROPOSED NEW STANDARD BE FOUND CONSTITUTIONALLY
DEFICIENT?
3)WILL INCREASING THE NUMBER OF INDIVIDUALS LIKELY TO BE FOUND
"GRAVELY DISABLED" LEAD TO MORE PEOPLE RECEIVING CRITICALLY
NEEDED TREATMENT, OR WILL THERE BE AN INAPPROPRIATE INCREASE
IN THE NUMBER OF INDIVIDUALS BEING INVOLUNTARILY COMMITTED?
4)SHOULD TIME PERIODS FOR SHORT-TERM INVOLUNTARY DETENTION AND
POST-CERTIFICATION FOR DANGEROUS PERSONS BE SUBSTANTIALLY
INCREASED?
5)SHOULD THE SEPARATE COMMITMENT AND CAPACITY HEARINGS BE
CONSOLIDATED, AND SHOULD LAY HEARING OFFICERS NOW BE ALLOWED
TO MAKE CAPACITY DETERMINATIONS?
6)SHOULD A NEW OUTPATIENT TREATMENT PROGRAM BE ESTABLISHED TO
PROVIDE FOLLOW-UP CARE IN THE COMMUNITY?
SUMMARY : Makes substantial reforms to California's mental
health commitment laws with the hope of improving the lives of
those suffering from mental illnesses. Specifically, this bill :
1)Broadens the definition of "gravely disabled" for the purpose
of involuntary detention and conservatorship to include a
person who "presents, as a result of mental disorder, an acute
risk of physical or psychiatric harm to the person in the
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absence of treatment." (See bill, page 7, lines 12-17.) It
also applies this expanded definition to the procedures for
the involuntary administration of psychotropic medication to
prisoners. (See bill, page 4, lines 5-10.)
2)Places new conditions on family members or other third parties
whose assistance may prevent an individual from being
determined "gravely disabled," by requiring such third parties
to show they are "willing and able to assist the person in
meeting his or her medical and psychiatric needs," in addition
to helping provide for the person's needs for food, clothing
or shelter. (See bill, page 9, lines 14-21; page 25, lines
9-17.)
3)Doubles the length of involuntary certifications (detentions),
following an initial 72-hour hold, from 14 to 28 days. (See
bill, page 8, line 36.)
4)Replaces the existing probable cause standard required for
involuntary detentions, which currently requires a finding
that a person is a danger to himself or herself, or to others,
or is "gravely disabled," with a less restrictive "there is
probable cause to believe the person certified should be
involuntarily detained" standard. (See bill, page 9, lines
35-39; page 10, lines 6-13.)
5)Provides that, if a person certified for treatment refuses
treatment with psychotropic medication, the certification
review hearing officer shall, in addition to making the
decision regarding the underlying detention, determine in the
same hearing whether the person lacks the capacity to make an
informed refusal of the treatment. (See bill, page 10, lines
14-22.)
6)Eliminates the requirement that capacity hearings be conducted
solely by a judge or court-appointed commissioners, referees,
or hearing officers. Instead, the bill allows such hearings
(including the new combined detention and capacity hearings
described above), to be conducted by lawyers and law students,
as well as a variety of lay hearing officers, including
medical doctors, licensed psychologists, registered nurses,
licensed clinical social workers, and licensed marriage,
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family and child counselors. (See bill, page 22, lines
33-35.)
7)Provides that a person subject to the expanded 28-day
certification who is also determined to lack the capacity to
make an informed refusal of psychotropic medication at the
combined hearing may obtain a de novo review of both decisions
in court via a writ of habeas corpus. (See bill, page 10,
lines 23-32.) Current law provides for separate de novo
review of the detention and capacity determinations.
8)Requires that a facility providing treatment to an individual
subject to the expanded 28-day certification must obtain his
or her medication history. (See bill, page 11, lines 3-6.)
Current law does not contain this requirement.
9)Doubles the length of post-certification commitments for
persons who are dangerous to others from 180 days to one year.
(See bill, page 16, line 38.)
10)Seeks to assist at-risk persons by providing that individuals
subject to 72-hour holds, 28-day certifications, and
additional involuntary certifications, must be placed in
"community assisted outpatient treatment programs" for 180
days if several conditions exist. (See bill, page 13, lines
5-39; page 14, lines 1-35.)
11)Provides that, in the event the patient does not or cannot
abide by the terms of the agreed upon community treatment
plan, and the person poses an acute risk of physical or
psychiatric deterioration, the person may, by court order, be
returned to inpatient treatment for the remaining days of the
underlying involuntary treatment certification. (See bill,
page 14, lines 31-40; page 15, lines 1-2.)
12)Permits, but not does require, a county to offer a
community-assisted outpatient treatment program to persons in
the community who are diagnosed with a severe and persistent
mental illness. (See bill, page 15, lines 3-13.)
13)Requires the Department of Mental Health (DMH) to provide
training and technical assistance to counties and their mental
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health contract providers, and others involved in making
involuntary commitment and treatment decisions. (See bill,
page 4, lines 18-37.) It also requires the department to
collect certain data and report to the Legislature, on or
before April 1, 2002, on the effectiveness of this
legislation. (See bill, page 26, lines 1-20.)
EXISTING LAW :
1)Specifies that the provisions of the Lanterman-Petris-Short
Act (hereafter "the LPS"), California's mental health
commitment law, must be construed to promote the Legislature's
intent to: protect public safety; provide prompt evaluation
and treatment of persons with serious mental disorders;
safeguard individual rights through judicial review; and end
the inappropriate, indefinite, and involuntary commitment of
mentally disordered persons. (Welfare and Institutions Code
section 5001. All further statutory references are to this
code.)
2)Authorizes an initial involuntary detention for a period of 72
hours for evaluation and treatment of persons who, as a result
of a mental disorder, are dangerous to themselves or others,
or who are "gravely disabled." (Section 5150. This is
commonly referred to as a "72 hour hold" or a "5150.")
3)Defines "gravely disabled," for the purpose of involuntary
detention and conservatorship cases, 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." (Section 5008(h)(1)(A).)
4)Provides that a person is not "gravely disabled" if that
person can survive safely without involuntary detention with
the help of responsible family, friends, or others who are
both willing and able to help provide for the person's basic
personal needs for food, clothing, or shelter. (Section
5250(d), 5350(e). This is commonly referred to as the "third
party assistance" rule.)
5)Provides that a person who is detained for 72 hours under the
above "5150" provision may be certified for an additional 14
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days of involuntary detention and treatment if: a) the person
has been advised of the need for, but has not been willing or
able to accept, treatment on a voluntary basis; and b) the
professional staff of the facility finds that the person
continues to be a danger to self or others, or is gravely
disabled. (Section 5250. This is commonly referred to as a
"14-day hold" or a "5250.")
6)Provides that a "certification review hearing" must be held
within four days of the date on which a person is certified
for involuntary detention and treatment, unless the person
certified requests judicial review of his or her detention
prior to this hearing. This hearing is to determine whether
"probable cause" exists that the person certified is, as a
result of a mental disorder, a danger to self or others, or is
gravely disabled. If the certification review hearing officer
finds probable cause that the person meets one or more of
these commitment criteria, the individual may be detained for
the remainder of the certification period. (Section
5254-5256.7.)
7)Presumes the competency of persons subject to the LPS (section
5331), and establishes the right of persons on 72-hour holds,
14-day certifications, and additional 30-day certifications to
refuse treatment with antipsychotic medications absent an
emergency or a determination of the person's incapacity in a
separate and distinct hearing held for that purpose. (Section
5325.2, 5332-5337; see also Riese v. St. Mary's Hospital and
Medical Center (1987) 209 Cal.App.3d 1303.)
8)Provides that, a person who is detained on the basis of being
dangerous to self may be certified for an additional 14 days
of involuntary detention and treatment, after the initial
72-hour hold and 14-day certification, for a total of 31 days,
if the person continues to be imminently suicidal. (Section
5260.)
9)Establishes a post-certification procedure that authorizes an
additional 180-day detention, after the expiration of the
initial 72-hour hold and 14-day certification, for a person
who continues to be imminently dangerous to others . (Section
5300 et seq .) A person subject to post-certification
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confinement may be placed on outpatient status (Section 5305)
and the post-certification can be renewed for successive
180-day periods if the individual continues to meet the
certification criteria. (Section 5304(b).)
10)Provides that, upon the expiration of the initial 72-hour
hold and 14-day certification, an individual who continues to
be gravely disabled, and is unable or unwilling to accept
treatment on a voluntary basis, may be placed under a 30-day
temporary conservatorship and then a permanent, one-year
conservatorship, which is renewable. (Section 5350 et seq .)
As an alternative to conservatorship, certain counties are
authorized to impose an additional 30-day certification, after
the expiration of the initial 72-hour hold and 14-day
certification, for persons being detained on the basis of
grave disability. (Section 5270.10 et seq .)
11)Requires a certification review hearing officer, judge or
jury, to consider information about the historical course of
the person's mental disorder, as determined by all available
relevant information, including information from family
members, when it has a direct bearing on the determination of
whether the person is a danger to others, or to himself or
herself, or is gravely disabled. (Section 5008.2.)
FISCAL EFFECT : Unknown
COMMENTS : This bill addresses one of the most difficult
challenges facing California policy-makers today: how to
maximize treatment opportunities for persons suffering from
serious mental illnesses, while at the same time respecting
these individuals' constitutional rights and physical autonomy.
Reflecting the complexity of this challenge, and the increasing
legislative interest in confronting it, there are over two dozen
bills in the Legislature this year which seek to improve state
mental health programs and procedures. AB 1800 is one of the
most far-reaching and expansive of these proposals. The bill
was heard by the Assembly Health Committee on April 10, 2000,
where it passed by a vote of 10-0.
The author introduced this legislation because she believes a
key to improving state mental health policy is providing for
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more effective involuntary intervention for those persons whose
mental illness is so severe it prevents them from seeking help.
She contends AB 1800 will further this goal through a
combination of lengthened and sustained periods of treatment,
consolidated hearing procedures, and an ambitious outpatient
commitment program to provide unprecedented support resources
for newly released individuals to more successfully integrate
into their home communities.
In support of the bill, the author states:
The LPS Act was intended to integrate severely
mentally ill persons with services in the community
where care would be provided in a more
cost-effective, humane setting. By requiring that a
person be found to be an immediate danger to self or
others, or gravely disabled, before being
involuntarily held, the LPS law virtually emptied the
state hospitals overnight even though sufficient
services and funding were not in place to provide the
treatment and housing options envisioned then for our
communities. Access to quality public mental health
services has improved since then and will hopefully
continue to get better as policy makers give
increasing attention to the needs of the mentally
ill. Without a change in the LPS law to allow more
effective involuntary intervention for those who are
so severely mentally ill that they refuse medical
treatment and deteriorate further without it, even
the best, most accessible services possible cannot
help.
The author also suggests that "[c]urrent law provides no legal
authority to intervene earlier in the severe mental illness to
give the person a better chance at more effective treatment.
There is no legal requirement or provisions for necessary
structured and supervised follow-up mental health care in the
community upon release from involuntary detention. ? Eight
other states have enacted laws to provide structured, supervised
assisted outpatient treatment programs for the severely mentally
ill, most recently New York's Kendra's law. It's past time for
California to provide more effective and humane commitment and
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treatment laws for its residents."
The Big Picture: Is the LPS Act a Failed Experiment or a Broken
Promise? At its core, this bill reflects the painful chasm that
exists between two competing but heart-felt philosophies of
mental health treatment. On the one hand, the bill's proponents
argue that the LPS has inadvertently denied care to those most
needing it. As explained more fully below, they contend that
the commitment standard under LPS is too strict, and that it
only allows for assisted treatment of the patently dangerous,
ironically preventing treatment for those simply too sick to
understand their need for care. They further assert that the
LPS does not allow for the court-ordered outpatient treatment
and supervision, and that the Act's procedures have become
ponderous and redundant, failing to serve the very people the
LPS intended to help.
Finally, proponents argue the LPS is based on outdated,
non-scientific information, not on current scientific studies.
They argue society has an obligation to save people from further
degradation, not just from death, and that this duty is not
being met currently. Reflecting this view are the comments of
E. Fuller Torrey, MD, and Mary Zdanowitz, who write that
broadening the standard for involuntarily committing individuals
"does not mean we will have to reopen all the psychiatric
hospitals that were closed as a result of
de-institutionalization. Most individuals with severe mental
illnesses who have experienced serious deterioration in rational
thought can live in the community with the proper medications.
But, for some, living in the community must be conditioned on
medication compliance."
Opponents, on the other hand, argue with equal passion that the
LPS is not a failed program, but rather is temporarily a broken
promise that can still be kept by policy-makers who "failed to
put their money where their rhetoric was." This view is seen in
the comments of the California Network of Mental Health Clients
(CNMHC), which represents people diagnosed with mental illness
in California:
[D]einstitutionalization did not fail; it was never
completed. People with mental disabilities were never
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offered the full array of voluntary community mental
health services they were promised, including
medications, housing, job and benefits assistance,
outreach teams and other alternative support for
people in crisis, client-run and self-help services,
such as peer counseling. A recent study of outpatient
commitment in New York City found that, when comparing
a control group to persons court-ordered to outpatient
commitment, there was no difference in any qualitative
or quantitative outcomes. The positive element with
both the court-ordered and non-court-ordered groups
was the enhanced community services offered to both.
Evolution from Hospital Confinement to the LPS Goal of
Community-Based Services : The issue of involuntary treatment
has not only been a source of conflict within the mental health
community, but also has been a focus of heated legislative
debate for many years. Prior to the enactment of the LPS in the
late 1960s, the mental health commitment laws in California, as
well as most other states, used a very broad "in need of
treatment" commitment standard. Under this earlier standard, if
a doctor testified that a person was mentally ill and in need of
treatment, the individual typically would be committed by a
court to a state hospital or other treatment facility for an
indefinite period of time.
In response to concerns about the civil liberties of persons
subject to indefinite and inappropriate commitments under this
earlier standard, the California Legislature passed the LPS in
1967 which, among other things, rejected the "in need of
treatment" standard and replaced it with the current scheme
which allows for involuntary detention and treatment only if a
person, as a result of a mental disorder, is a danger to self or
to others, or is gravely disabled. (See, e.g., The Dilemma of
Mental Commitments in California: A Background Document,
Subcommitee on Mental Health Services (1967).) The LPS went
into effect in July of 1969 (Stats. 1967, ch. 1667, sec. 36),
and it became a model for many states in revising their
commitment schemes with a de-emphasis on commitment and an
emphasis on community care.
Some Pre- & Post-LPS Statistics : One area where there does
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appear to be some consensus on this issue pertains to the
long-term trend of fewer and fewer individuals residing in state
mental hospitals -- though it is also agreed that a large number
of the individuals who have been released from state
institutions under the LPS have simply been transferred to
smaller institutions in the community. According to data
compiled by DMH, the peak population in state mental hospitals
occurred in 1959, with a patient level of 37,489. In 1968, the
year before LPS was implemented, the population in state
hospitals had already declined by more than fifty percent, to
18,831 patients. ( Id .) In 1970, the population was further
reduced to 12,671, and by 1990, California's state hospital
census had dropped to less than 5,000. (California Health and
Welfare Agency, Department of Mental Health, Data Matters,
Trends in Admissions, Inpatients and Discharges of the Mentally
Disordered in State Hospitals, 1851-1986 (July 1, 1987).) As
DMH explains:
One of the factors precipitating the decline of the
State Hospital inpatient population was the
introduction of psychotropic medications during and
after the 1950's. However, in addition to these
pharmacological developments, there occurred a
nationwide movement toward treating the mentally
disabled in the least restrictive setting. This
philosophy was translated into legislation and policies
shifting patients away from centralized state
institutions. Decentralization of the mental health
care delivery system and de-institutionalization became
focal concerns for mental health professionals. ( Id .,
at p. 4.)
The "Criminalization" of the Mentally Ill : In addition to the
long-term trend away from state hospital treatment programs, it
is also evident that a significant percentage of inmates in
jails and prisons in California have mental disabilities. In a
recent report prepared by the California Research Bureau
("CRB"), it is estimated that "10-15 percent of offenders who
enter the local criminal justice system are mentally ill, the
same as in the state correctional system." (M. Nieto, Mentally
Ill Offenders in California's Criminal Justice System,
California Research Bureau (February 1999) at pp. 1, 3.) This
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report refers to the oft-quoted statement that the L.A. County
Jail runs "the largest mental health facility in the country."
( Id ., at p. 3.) The CRB report warns that "California's local
mental health system is overwhelmed by the sheer volume of
people in need of care and treatment. Today, it is a widely
held view that many people have fallen through the local mental
health delivery system's financial and service cracks. Many of
them end up in the county or state correctional system." ( Id .,
at p.4, citation omitted.)
Recent Legislative Efforts to Relax LPS Standards : In recent
years, there has been growing concern in the Legislature, and
debate within the mental health community itself, about the
effects, both predicted and unintended, of the LPS Act.
Reflecting this concern are the comments in a recent editorial
in the San Diego Union-Tribune, which described the impetus
behind current efforts to reform the state's mental health laws
as follows:
Under California's LPS ? forcing people into
psychiatric hospitals was virtually prohibited. At
the same time, the state emptied its mental hospitals
to treat people at community mental health centers
using new generations of anti-psychotic medications.
?But plans went awry. The community mental health
centers were never adequately funded [and] [o]utreach
to the mentally ill was nonexistent. Proper community
treatment never materialized. And when patients
refused to take their medication, there was nobody to
convince them to do so, nor any coercive recourse if
they persisted. ? Now there's a movement afoot to
coerce some mentally ill people to take their
medication, or even to be involuntarily
institutionalized as a last resort. ("Forced care
dilemma: What to do when mentally ill refuse needed
help?" San Diego Union-Tribune, December 12, 1999,
page G-2.)
However, AB 1800 is certainly not the first effort to broaden
California's commitment laws. During the past 15 years, a
series of bills have been introduced to expand the scope of the
LPS Act. For example, in 1986, Senator Russell introduced SB
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1708, which initially contained a number of provisions that were
similar to this bill but ultimately became a study bill which,
as described below, sought a comprehensive review of the
potential impacts of reforming LPS.
The "Russell Study" Findings . As noted above, Senator Russell
amended his LPS reform bill in 1986 into a major study measure.
In that bill, the Legislature directed the Conference of Local
Mental Health Directors to conduct a study of the impact of
expanding the state's civil commitment laws to include a "likely
to deteriorate" standard as well as the impact on the cost,
assessment, treatment and service, and patients' rights of
establishing outpatient treatment programs. (SB 1708 (Russell),
Stats. 1986, ch. 1272, 1.) The recent findings of the Russell
Study may prove helpful to the Committee.
Among the major findings of this study, which was issued in June
of 1998, were: 1) there are currently substantial variations
among counties in the implementation of the LPS; 2) funding
shortages have thwarted effective implementation of involuntary
treatment laws; 3) the impacts of changes in commitment laws are
difficult to estimate; and 4) the data collected about
involuntary treatment are inadequate to accurately assess the
impacts of potential changes in the LPS. Because of these
problems, the authors of the Russell study called for improved
monitoring, data collection, and uniform training and
certification standards for personnel who are routinely involved
in the implementation of the LPS. Unfortunately, none of the
Russell study's recommendations appears yet to have been
implemented.
AB 1800's Implementation of Key Russell Study Recommendations :
Importantly, AB 1800 seeks to implement two of the Russell study
recommendations. First, the bill requires DMH to provide
training and technical assistance to counties and their mental
health contract providers which includes "information relative
to legal requirements for detaining a person for involuntary
inpatient treatment or community-assisted outpatient care,
including criteria to be considered with respect to determining
if a person is considered to be gravely disabled." (See bill,
page 4, lines 18-37.)
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Second, the bill requires DMH to collect data from the counties
regarding "the numbers of persons being assigned to involuntary
inpatient and outpatient treatment, the length of time for which
persons are detained and treated involuntarily for inpatient and
outpatient treatment, changes in mental health treatment
utilization patterns, and the effectiveness of community
assisted outpatient treatment programs." It also requires DMH
to report to the Legislature on or before April 1, 2002, on the
effectiveness of this legislation, based upon the above
information it collects from the counties. (See bill, page 26,
lines 1-20.)
Issue #1: Should the Existing "Grave Disability" Commitment
Standard Be Broadened ? As noted above, one of the principal
reforms proposed in AB 1800 is an expansion of the "grave
disability" commitment standard contained in the LPS. The bill
does this by expanding the definition to include any person who
"presents, as a result of a mental disorder, an acute risk of
physical or psychiatric harm to the person in the absence of
treatment." Currently the commitment standard in the LPS is
tougher to meet, requiring the finding that, as a result of a
mental disorder, an individual is currently unable to provide
for "his or her basic personal needs for food, clothing, or
shelter." (Section 5008(h)(1)(A).)
Proponents argue that the proposed broadening of the "grave
disability" commitment standard is needed because too many
judges and hearing officers currently interpret the LPS to bar
consideration of key information about a person's mental health
history. According to proponents such as the California
Psychiatric Association, if judges and hearing officers would
begin properly considering a patient's medical and psychiatric
history, these individuals would begin to receive critically
needed treatment before they have completely deteriorated, and
threaten imminent harm to themselves or to others.
Family members who support changing the "grave disability"
commitment standard have provided the Committee with tragic
personal stories in support of the proposed change. They
describe futile attempts to get their mentally ill loved ones
into treatment, only to be thwarted, from their perspective, by
the current "grave disability" commitment standard. They
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suggest the current standard is being interpreted to bar
involuntary treatment simply because their loved ones
temporarily appear capable of providing for their most minimal
of human needs -- though their mental health history would
clearly show the need for involuntary treatment. In some of the
most disturbing stories shared with the Committee, family
members write that their loved ones, who were found not to meet
the LPS treatment threshold, eventually killed themselves,
harmed others, or committed "suicide by cop."
Opponents of the proposed expansion of the "grave disability"
commitment standard contend, however, that rather than the
language of the law itself needing revision, the real problem
here rests with the overly-restrictive implementation of the
LPS. They state that it appears many judges and hearing
officers are misreading the requirements of the LPS and
corresponding case law, and are implementing the "grave
disability" standard too restrictively.
They note that section 5008.2 of the Act expressly affirmatively
requires a certification review hearing officer, judge or jury,
to consider information about the historical course of the
person's mental disorder, as determined by all available
relevant information, when the information has a direct bearing
on the determination of whether a person is a danger to others,
or to himself or herself, or is gravely disabled. They point to
the current language of section 5008.2 that specifically states
historical course evidence includes evidence by persons who have
provided services to the patient or evidence presented by family
members.
Opponents of expanding the "grave disability" commitment
standard also point to case law which upholds the consideration
of "historical course" evidence in finding the presence of a
grave disability. For example, they note the case of
Conservatorship of Walker (1989) 206 Cal.App.3d 1572, which
involved a conservatee who, it was established directly through
historical course evidence, lacked insight into his mental
illness and felt he did not need medication. The Walker court
held that substantial evidence was presented that the
conservatee could not provide for himself without medication,
and that he would not take medication without the supervision of
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the conservator, which supported a finding that he was presently
gravely disabled. ( Id ., at 1577.) In addition, they note that
just last year, the court in Conservatorship of Guerrero (1999)
69 Cal.App.3d 442, upheld a jury instruction which specifically
incorporated historical course information. ( Id ., at 445.)
Opponents, therefore, take issue with the need to expand the
existing "grave disability" commitment definition and contend
the existing standard provides for the type of inquiry sought by
the proponents of AB 1800.
Issue #2: Would the Broader "Grave Disability" Standard Pass
Constitutional Muster? In addition to attacking the bill's
proposed expansion of the "grave disability" criteria on policy
grounds, opponents of AB 1800 assert the legislation fails to
pass constitutional muster on several possible bases, including,
that the bill will allow the involuntary commitment of
individuals who do not pose any risk of "physical" harm, and
instead solely pose a risk of "psychiatric" harm. Opponents
note in support of this argument that some courts have held that
in order to justify the physical confinement of a person, the
person's mental illness must present a realistic threat of
physical harm to self or to others; that is, "his potential for
doing harm . . . [must be] great enough to justify such a
massive curtailment of liberty." ( Bell v. Wayne County General
Hospital (1974) 384 F. Supp. 1085, 1096 [quoting Humphrey v.
Cady (1972) 405 U.S. 504, 509].)
Opponents assert the bill's proposed "grave disability" language
would also likely be found constitutionally deficient because,
they argue, the new definition would appear to permit the
involuntary treatment or conservatorship of a person based on
the uncertain possibility (or "probabilistic pessimism") of an
ill-defined harm that is neither immediate nor substantial. In
support of this argument, they note that California courts have
uniformly held that in order for a civil commitment scheme to
pass constitutional muster, the state must be able to show that
the individual has a mental disability which causes the person
to pose both a present and substantial harm to the person or to
others (citing In re Guerrero (1999) 69 Cal.App.4th 442).
They further contend the bill's expanded commitment criteria are
unconstitutionally vague under the principal state case in this
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area, Doe v. Gallinot (C.D. Cal. 1979) 486 F. Supp. 983, 991,
aff'd (9th Cir. 1981) 657 F.2d 1017.) The Gallinot court held
that the current commitment standard in the LPS provides
sufficiently precise standards because "it implicitly requires a
finding of harm to self" and it is "further" limited to "an
inability arising from mental disorder rather than from other
factors." ( Id .) Furthermore, the "significant risk of
erroneous application of the standard" is remedied by the due
process requirement that the committed person have a prompt
hearing after the initial 72-hour emergency detention to review
the basis for the confinement. ( Id .) AB 1800's expanded
commitment standard, they contend, would thus allow the
involuntary detention of individuals who are, in fact, not
presently a physical threat to themselves or to others, and are
capable of providing for their basic needs, either on their own
or with the assistance of others.
Proponents respond, however, by noting that although such
constitutionality attacks in this area of reform are
predictable, their outcomes in the courts are not. They contend
the changes proposed in the bill's new definition of "gravely
disabled" will not allow the involuntary detention of
individuals who are not presently a physical threat to
themselves or to others. Instead, they suggest, AB 1800's new
"grave disability" definition will simply provide needed clarity
to judges and hearing officers that they do, in fact, have the
authority and responsibility under the LPS to take into account
critical information about a person's mental health history when
determining whether they are "gravely disabled" and worthy
recipients of treatment.
Proponents also point to case law they suggest upholds the
constitutional propriety of expanded grave disability criteria.
In the case of In re LaBelle (1986) 107 Wash.2d 196, they note
the Supreme Court of Washington upheld the constitutionality of
the State of Washington's expanded grave disability standard
which provides:
'Gravely disabled' means a condition in which a
person, as a result of a mental disorder, (a) is in
danger of serious physical harm resulting from a
failure to provide for his essential human needs of
AB 1800
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health or safety, or (b) manifests severe
deterioration in routine functioning evidenced by
repeated and escalating loss of cognitive or
volitional control over his or her actions and is not
receiving such care as is essential for his or her
health or safety. (RCW 71.05.020(1).)
They note that the Washington Supreme Court, when confronted
with a constitutional challenge rejected the appellants'
argument that the above definition was unconstitutional because
it did not contain an "imminent harm" requirement. In support
of Washington's definition in this area, the court explained
that "A requirement of 'imminent' danger as a prerequisite to
continued treatment could result in the premature release of
mentally ill patients who are still unable to provide for their
essential health and safety needs outside the confines of a
hospital setting but who, because of their treatment there, are
no longer in 'imminent' danger of serious physical harm. The
State's continuing interest in confining and treating such
individuals would be frustrated by a requirement of 'imminent'
danger for all commitments." ( Id ., at 203.)
Issue #3: Should Hearings For Determining Whether A Person
Meets The Criteria For Involuntary Commitment And Has The
Capacity To Consent To Medication Be Consolidated, And Should
the Qualifications Of Capacity Hearings Be Reduced to Allow for
Lay Hearing Officers ? As noted above, this bill also seeks to
consolidate the capacity hearing process and relax the
qualifications of those who can serve as hearing officers.
The current separate capacity hearing procedures under the LPS
are known as "Riese" hearings, named for the 1987 court case of
Riese v. St. Mary's Hospital and Medical Center (1987) 209
Cal.App.3d 1303. In that case, the court of appeal unanimously
held that persons involuntarily detained on 72-hour holds and
14-day certifications retain their rights under the LPS to make
informed treatment decisions regarding the use of antipsychotic
medication absent an emergency or a judicial determination of
incompetence. ( Id. at 1308, 1320.) The Legislature
subsequently codified this right at Section 5325.2, and set out
specific "Riese" capacity hearing procedures at Sections
5332-36. Those sections provide that if an individual is
AB 1800
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detained in a psychiatric facility pursuant to various
short-term commitments, and the person refuses antipscychotic
medication, the facility may petition for a hearing on whether
the person lacks the capacity to refuse the treatment. (Section
5332(b).) The current law further provides for such a hearing
to be held within 24 hours of the request at the facility where
the person is detained. (Section 5334(a).) It also sets forth
the basic due process requirements of such a hearing, such as
written notice of the petition to the detained person,
representation by an attorney or patient's rights advocate,
written notification of the decision, and the right to appeal.
(See sections 5333, 5334(d),(e)(1).)
This bill proposes to consolidate the "Riese" capacity hearing
procedures with the "probable cause" hearing procedures
regarding detention. If a patient refuses treatment with
antipsychotic medications, the bill would require the
certification review hearing officer to concurrently determine
the patient's capacity to refuse treatment at the same hearing
in which the legality of the individual's involuntary detention
is being determined, rather than in a separate capacity hearing
process as is currently required in the LPS.
In support of these reforms, proponents such as the California
Psychiatric Association argue that today, some patients are held
in unnecessary "treatment limbo" when patients refuse to
voluntarily consent to taking medication. At such times, the
hospital and doctor are prevented from considering treatment
options while they wait for the second hearing to determine
whether the patient has the capacity to give informed consent.
Proponents contend that the waiting time between the two
distinct hearings currently required under the LPS is often
several days, and that during this time, the person is held,
largely untreated, against his or her will. Proponents assert
that contrary to claims by opponents, it is far better for the
patient if both issues are heard, and decided, as soon as
possible in a combined hearing where the same fact-finder can
make the needed determinations. In addition, proponents contend
the existing separate hearing procedures are cumbersome,
bureaucratic and unnecessary. They assert that streamlining the
process, by combining the two hearings, is not only a much more
AB 1800
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efficient means of addressing the treatment needs of patients,
but will also lead to more patients getting necessary treatment
much more quickly.
Opponents, on the other hand, argue that by combining the
capacity determination with the certification review hearing,
the bill might invariably lessen the standard of proof in
capacity determinations. They worry that the current "clear and
convincing evidence" standard in capacity hearings will
inevitably devolve into a simple "probable cause" standard, a
lower standard of proof currently required only in the
certification review process. Opponents of this change also
contend that the bill's attempt to "streamline" the
certification review and capacity hearings will not satisfy the
due process requirements that attach to such a fundamental right
as the inviolability of one's person (citing Vitek v. Jones
(1980) 445 U.S. 480, 491-92, and Lillian F. v. Superior Court
(1984) 60 Cal.App.3d 314).
Opponents also complain that the bill would repeal the current
capacity notice requirements. Such notice must now be provided
to the detained person so the individual knows that his or her
capacity to give or refuse consent to psychotropic medications
is being determined. Opponents argue the essential requirements
of due process command such notice.
Opponents are also extremely concerned about the bill's relaxed
hearing officer qualifications. They note that under current
law, which was carefully negotiated in 1990, only judges, court
commissioners, or court-appointed hearing officers are allowed
to conduct the more formal, quasi-judicial capacity hearings,
while a variety of lay hearing officers, including doctors,
nurses, LCSWs and MFCCs, are permitted to conduct the more
informal certification review hearings (see section 5256.1).
Fundamental notions of due process, opponents state, underlie
the existing requirement in the LPS that only judicial officers
trained in constitutional law can properly balance the legal
issues that invariably arise in capacity hearings.
Thus, opponents argue, the manner in which this bill attempts to
replace the existing capacity hearing procedures with a
certification review/capacity hybrid, while concurrently
AB 1800
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relaxing the qualifications of hearing officers, could raise
serious due process challenges to the legislation.
Issue #4: Should Time Periods For Short-Term Involuntary
Detention And Post-Certification For Dangerous Persons Be
Substantially Increased ? As noted above, in addition to
expanding the definition of "grave disability" AB 1800 also
seeks to double the time periods for short-term involuntary
detention and post-certification for dangerous persons. In
support of these changes, the author states:
My bill proposes to change the two 14 day holds into
one 28 day hold in order to provide a more reasonable
uninterrupted period of treatment for the patients for
more effective medication evaluation and management.
Psychotropic medication often takes time to build up
in the system to take effect. Furthermore, it's often
difficult to determine the appropriate medication
right away and often takes time within which to try
different medications to determine the most effective
treatment regime.... The extension from six months to
one year for the post certification period is
necessary to provide the same minimum length of time
for treatment for those who are considered dangerous
as is already provided in law through conservatorships
for those who are considered gravely disabled.
The California Judges Association also wrote the Committee in
support of the proposed detention extensions in the bill,
stating "AB 1800 would improve the functioning of involuntary
commitment laws by lengthening the overall period of involuntary
hospitalization ... In addition, [the bill's] one-year
[post-certification period for dangerous persons] better allows
for treatment of dangerous individuals while building in a
greater incentive for the patient to cooperate in outpatient
treatment."
Opponents of AB 1800's detention extensions state, however, that
the author has failed to provide any empirical evidence to
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Page 21
support the assertion that the current detention periods in the
LPS are insufficient to provide needed treatment. In fact, they
argue, the current available data suggests that the average
length of stay for persons subject to short-term holds is about
4-5 days -- well below the currently permissible deadlines.
Thus, opponents suggest, the Committee should explore with the
author whether any factual information is available supporting
the need to expand such detentions. Absent such evidence,
opponents argue, the bill's proposed detention expansions should
be rejected.
Issue #5: Should A New Outpatient Treatment Program Be
Established To Provide For Needed Follow-Up Care In The
Community, or Would the Bill's Outpatient Commitment Scheme Be
Found Unconstitutionally Overbroad? AB 1800 also establishes a
new $350 million outpatient treatment program to address the
long-standing need for "follow-up" care in the community when
individuals are released from involuntary detention. The bill
requires that all persons committed under 72-hour holds, 28-day
certifications and 30-day additional certifications in those
counties which are authorized to impose such detentions, must be
placed in community assisted outpatient treatment programs if
certain criteria are met and they agree to this outpatient
program instead of remaining in the hospital. These criteria
include that the person "does not present an immediate harm to
self or others." The bill also provides that if the person
"does not or cannot abide by the terms of the agreed upon
community treatment plan, including medication compliance, and
the person poses an acute risk of physical or psychiatric
deterioration, the person may, by court order, be returned to
inpatient treatment for the remaining days of the underlying
involuntary treatment certification." (See bill, p. 13, lines
8-22.)
In support of this ambitious statewide program, the author
states:
Current law limits timely outpatient mental health
service options to clients who request them,
effectively eliminating the right to such services by
clients who are unable to request services because
they are too mentally ill to have the capacity to make
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rational treatment decisions. It is important to
create a mechanism in the law to allow patients who
refuse treatment to access appropriate services in the
least restrictive setting, once they are stabilized,
as a legal alternative to costly and excessive
inpatient services. AB 1800 proposes $350 million to
be available to those counties which provide that
multi-level care through a community assisted
outpatient treatment program for all mental health
patients, including the non- compliant ones.
In further support of the proposed outpatient program, the
California Judges Association states that "for the first time,
[AB 1800 offers] a voluntary, six-month commitment to community
outpatient treatment [where] outpatient mental health treatment
[will be] interdisciplinary." They also state that the bill
appropriately "calls for a judicial determination that
outpatient treatment is appropriate in each case."
The California Psychiatric Association also comments that the
voluntary six month outpatient treatment contract proposed in
the bill can result in significant recovery for many seriously
mentally ill patients. They state that approximately 40 states
have mandatory outpatient treatment laws, and point to a recent
study at Duke University which determined that such treatment,
to be effective, must be at least 180 days long. "Having this
type of treatment available," they write, "presents the
opportunity for seriously mentally ill persons to reach recovery
and reintegration into society, ending the too-common cycle of
hospitalization, stabilization, decompensation because they have
gone out of treatment, and re-hospitalization." They also
contend that patients participating in outpatient treatment
agreements benefit because the patient may be able to enter into
these contracts as an alternative to conservatorship, and
because patients whose treatment in these programs leads to
recovery are much less likely to end up in the criminal justice
system.
Opponents of the proposed outpatient treatment approach argue
against the program on several fronts, however. They state that
the program would violate due process standards because courts
of other jurisdictions which have similar outpatient commitment
AB 1800
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schemes have held that a person's outpatient commitment status
may not be revoked simply because the person did not comply with
all of the conditions of the outpatient program. For example,
they cite a Florida decision which held that, "[f]or a court to
order involuntary hospitalization, it is not sufficient that the
patient merely failed to follow a plan for outpatient treatment.
There must be clear and convincing proof that an individual is
dangerous to herself or others before the state may deprive her
of her freedom on the basis of mental illness." ( C.N. v. State
(Fla. 1983) 433 So. 2d 661, 663.) They also note that the
Idaho Supreme Court upheld that state's outpatient commitment
statute because, the court pointed out, that state's law
requires that "a decision to revoke a mental health patient's
conditional release status and to re-hospitalize the patient
must be accompanied by a determination that the conditions
warranting hospitalization in the first instance are again
present ." ( True v. State Department of Health and Welfare
(1982) 103 Idaho 151, 162, emphasis added.)
In contrast, opponents state, AB 1800 provides for
re-hospitalization not on the basis of demonstrated danger to
self or others, but for failure to "abide by the terms of the
agreed upon community treatment plan" if the person "poses an
acute risk of physical or psychiatric deterioration, " without,
they say, defining "acute risk of psychiatric deterioration."
To the extent that this language allows for civil commitment of
non-dangerous persons, they contend, it would not appear to pass
constitutional muster.
Opponents also raise concerns about the outpatient commitment
scheme in a number of other respects. They complain that the
proposed approach requires a hearing officer to make the initial
finding that the person meets the eligibility criteria, but
fails to specify which hearing officers would fulfill this
function, and what their qualifications must be. Moreover, they
assert, while the proposed outpatient commitment scheme provides
for revocation of outpatient status by court order, it fails to
specify the process or procedures that would be used to initiate
and conduct such hearings. Nor does it specify the due process
rights of the person whose outpatient status is being revoked.
Proponents respond to these complaints, however, by noting that
AB 1800
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the outpatient commitment provisions are a voluntary program,
since one of the entrance criteria is that the person "agrees to
community-assisted outpatient treatment." However, it is not
clear that the voluntariness test will be met here, since one of
the basic principles of informed consent is that the
individual's assent must be freely given, and must not be
obtained through the exercise of duress or coercion. (See e.g.,
California Healthcare Association, 1999 Consent Manual, Chapter
1, at p. 1-6; 14 CalJur3d (Rev) Part 1, Contracts, sec. 76 at p.
318 (West 1999).) It is arguable that patients who are locked
up against their will in a mental hospital and subject to
involuntary treatment are highly motivated to get out of the
institution and most, if not all, might do whatever it takes to
regain their freedom, including agreeing to comply with a
community treatment plan.
Issue #6: How Should AB 1800 and the Other Bills in this Area
Interface with the New SCR 59 Process ? At least two study
processes are underway to review possible LPS reform needs. The
Senate Office of Research (SOR) will shortly be entering into a
contract with the Rand Institute for Civil Justice to assist the
Legislature in reviewing the LPS and other states' involuntary
commitment laws, to make recommendations regarding possible
revisions to the LPS and to identify the most effective
treatment strategies and interventions. According to SOR staff,
the results of this study should be available in October of this
year. In addition, SCR 59, which was spearheaded by Senator
Burton, recently created the two-house Joint Committee on Mental
Health Reform, which is specifically charged with developing
strategies for improving the availability and quality of mental
health treatment in California.
SCR 59, which is co-chaired by the author of this bill, requires
the Joint Committee to submit a report to the Legislature by May
1st of this year, which should include, among other things,
policy recommendations regarding expanded treatment
participation by mental health clients. One of the specific
focus areas of the SCR 59 effort is a review of the
effectiveness of the LPS involuntary commitment provisions.
Given the apparent consensus by legislative leadership to review
and make subsequent policy recommendations regarding expanded
treatment participation by mental health clients under the LPS,
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Page 25
the Committee may wish to discuss with the author her
perspective about how AB 1800, and other reform bills in this
area, should interface with this SCR 59 process.
Staff Comment : As noted at the outset of this analysis,
grappling with the momentous issues raised by this legislation
is extremely difficult. There are clearly no easy answers, only
a multitude of future uncertainties. Perhaps a recent comment
by the United States Surgeon General best summarizes the
daunting challenge facing the Legislature as the author of AB
1800 and others struggle to improve the lives of the many who
suffer from mental illness:
One point is clear: the need for coercion should be
reduced significantly when adequate services are
readily accessible to individuals with severe mental
disorders who pose a threat of danger to themselves or
others. As the debate continues, more study is needed
concerning the effectiveness of different strategies
to enhance compliance with treatment. Almost all
agree that coercion should not be a substitute for
effective care that is sought voluntarily. ( Mental
Health: A Report of the Surgeon General , at p. 457,
citation omitted.)
RELATED PENDING LEGISLATION : As noted above, there are over 25
bills pending in the Legislature this year which pertain to
mental health. Among these bills are the following:
AB 1718 (Hertzberg) and AB 1762 (Villaraigosa), both of which
deal with police officer training in the area of mental health.
AB 1718 is pending on the Assembly Floor; AB 1762 is pending in
Assembly Appropriations on suspense.
AB 2034 (Steinberg), which expands the comprehensive community
mental health pilot programs that were created under AB 34
(Steinberg & Baugh - Stats. 1999, Ch. 617) of last year, is
currently scheduled to be heard in Assembly Appropriations on
May 3, 2000.
SB 1534 (Perata), which expands the scope of the mental health
patient's rights advocacy program, is currently scheduled to be
AB 1800
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heard in Senate Health and Human Services on April 26, 2000.
SB 1769 (Chesbro) would provide for the development and
implementation of mental health courts that would provide a
single point of contact where a defendant with a mental
disability may receive court-ordered treatment and support
services in connection with diversion from prosecution, a
sentencing alternative, or a term of probation. This bill is
currently scheduled to be heard in Senate Public Safety on April
26, 2000.
SB 1770 (Chesbro), which would require the Department of Mental
Health, pursuant to a request-for-proposal process, to provide
grants to county mental health departments for
mental health client and family member empowerment programs, is
currently scheduled to be heard in Senate Health and Human
Services on April 26, 2000.
PRIOR PERTINENT LEGISLATION : SB 1708 (Russell), Stats. 1986,
Ch. 1272 (described above).
AB 2678 (Allen) of 1988, which, as introduced, contained a
mandatory outpatient commitment scheme in addition to provisions
which would establish a 30-day additional certification period
as an alternative to conservatorships. The outpatient
commitment provisions were subsequently stripped from the bill,
and the 30-day certification provisions were enacted. (Stats.
1988, Ch. 1517, sec. 10.)
AB 1393 (Wyman) of 1989, which would have expanded the
definition of grave disability to include a "likely to
deteriorate" standard, failed in the Assembly Ways and Means
Committee.
SB 639 (Russell) of 1991, which also would have adopted a
"likely to deteriorate" standard, died in the Senate
Appropriations Committee.
SB 1098 (Kopp) of 1997, which would have authorized 30-day
certifications for "persons who would pose a substantial risk of
death or serious injury to themselves or others if left
unsupervised in the community." The author subsequently deleted
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those provisions from the bill prior to any hearing on the
measure, and it was amended into a different subject matter.
REGISTERED SUPPORT / OPPOSITION :
Support
ACLU Members for LPS Reform - Los Angeles
Alliance for the Mentally Ill - Coachella Valley, East San
Gabriel Valley, Los Angeles, Mount
San Jacinto, San Bernardino, San Diego, San Gabriel Valley,
San Mateo, and Ventura Chapters
American Association of Retired Persons
American Nurses Association California
Business Digest - Ventura/Santa Barbara Counties
California Child, Youth and Family Coalition
California Clients for LPS Reform
California Judges Association
California Medical Association
California Psychiatric Association
California State Sheriff's Association
California Treatment Advocacy Coalition
Cascade Shores Women's Club
College Hospital Cerritos
Concept Media
Grandparents as Parents, Inc.
Guardian Rehabilitation Hospital - Redding
Long Beach Senior Citizen Advisory Commission
Los Angeles County Board of Supervisors
Los Angeles County Sheriff's Department, Sheriff Leroy Baca
Los Angeles County Police Chiefs' Association
LPS Reform Task Force (Elizabeth Galton, M.D.)
Marin County Sheriff, Robert Doyle
Mayor of San Francisco, Willie L. Brown, Jr.
Monrovia Chief of Police, Joseph A. Santoro
Family Alliance for the Mentally Ill
Memorial Counseling Associates, Inc.
Napa Chief of Police, Daniel R. Monez
National Alliance for the Mentally Ill
National Alliance for the Mentally Ill - California
National Alliance for the Mentally Ill - Lake County, Long
Beach, Mendocino County, Nevada County, Northern, San
AB 1800
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Diego, Santa Barbara County, Sacramento, San Bernardino
Area, Whittier, and Yolo County chapters
National Sheriff's Association
Northeast Democratic Club of Los Angeles
Psychiatric Health Facility - San Joaquin County
Recovery Model Task Force - Contra Costa County
Riverside County Department of Mental Health
Sacramento County Sheriff, Lou Blanas
San Diego Municipal Court, Judge Larry Stirling
San Joaquin County Commission on Aging
San Francisco County Board of Supervisors
Santa Barbara Mental Health Association
Solano County Board of Supervisors
Stanley Foundation Research Programs/NAMI Research Institute
State Parole Board
St. Charles Church Outreach Committee
Suicide Prevention Advocacy Network - California
Superior Court of San Diego, Judge Robert C. Coates
Treatment Advocacy Center
Union of American Physicians and Dentists
Ventura County Behavioral Health Department
Ventura County Mental Health Board
Ventura County Sheriff, Bob Brooks
Victim Assistance Program, Irvine
Victim Assistance Providers in Orange County
Various individuals
Opposition
AIDS Legal Referral Panel
Alameda County Network of Mental Health Clients
American Civil Liberties Union
Berkeley Drop-In Center
California Association of Mental Health Patients' Rights
Advocates
California Attorneys for Criminal Justice
California Foundation for Independent Living Centers
California Mental Health Planning Council
California Network of Mental Health Clients
California Psychological Association
California Public Defenders Association
Citizens Commission on Human Rights
AB 1800
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Coalition Advocating for Rights Empowerment and Services
Coalition on Homelessness
Consumers' Self Help
Independent Living Resource Center San Francisco
Legal Aid Society of San Francisco
Los Angeles County Client Coalition
Mental Health Advocacy Services, Inc.
Mental Health Consumer Concerns
National Association for Rights Protection and Advocacy
Office of Self Help
Project Return: The Next Step
Protection and Advocacy, Incorporated
Regional Psychological Society, Assn. for Northern California
Kaiser Permanente Psychologists
Sacramento County Office of Patients' Rights, Advocacy Peer
Support Education Program
San Francisco Depressive and Manic Depressive Association
Yolo Community Care Continuum
Various individuals
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334