What is the Community Mental Health Act of 1963?

Introduction

The Community Mental Health Act of 1963 (CMHA) (also known as the Community Mental Health Centres Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centres Construction Act of 1963) was an act to provide federal funding for community mental health centres and research facilities in the United States.

Background

This legislation was passed as part of John F. Kennedy’s New Frontier. It led to considerable deinstitutionalisation.

In 1955, Congress passed the Mental Health Study Act, leading to the establishment of the Joint Commission on Mental Illness and Mental Health. That Commission issued a report in 1961, which would become the basis of the 1963 Act.

The CMHA provided grants to states for the establishment of local mental health centres, under the overview of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to build mental health centres to provide for community-based care, as an alternative to institutionalisation. At the centres, patients could be treated while working and living at home.

Only half of the proposed centres were ever built; none were fully funded, and the act did not provide money to operate them long-term. Some states saw an opportunity to close expensive state hospitals without spending some of the money on community-based care. Deinstitutionalisation accelerated after the adoption of Medicaid in 1965. During the Reagan administration, the remaining funding for the act was converted into a mental-health block grant for states. Since the CMHA was enacted, 90% of beds have been cut at state hospitals.

The CMHA proved to be a mixed success. Many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities, but without the mental health care they needed.

What was Addington vs Texas (1979)?

Introduction

Addington v. Texas, 441 U.S. 418 (1979), was a landmark decision of the US Supreme Court that set the standard for involuntary commitment for treatment by raising the burden of proof required to commit persons for psychiatric treatment from the usual civil burden of proof of “preponderance of the evidence” to “clear and convincing evidence”.

Background

Before Frank Addington was arrested on the misdemeanour charge of “assault threat” against his mother, Addington’s mother filed a petition with the court, in accordance with Texas law, requesting that Addington be indefinitely involuntarily committed to a state psychiatric hospital. Addington had a long history of mental and emotional problems and past psychiatric hospitalisations. The state trial court issued jury instructions that the decision be based on “clear, unequivocal and convincing evidence” that Addington was mentally ill and that hospitalisation was required for his own welfare and the welfare of others. The jury found that Addington was mentally ill and required hospitalisation. Thereupon the trial court ordered his indefinite commitment. He was indefinitely committed to Austin State Hospital.

However, Addington appealed to the Texas Court of Appeals, based on the argument the court should have used the “beyond a reasonable doubt” standard of proof. The appeals court reversed, agreeing with Addington. The Texas Supreme Court then reversed the Court of Appeals’ decision, reinstating the trial court’s orders. It concluded that the standard of proof of the preponderance of the evidence satisfied due process in a civil commitment proceeding.

Addington then appealed to the US Supreme Court on a writ of certiorari (in law, certiorari is a court process to seek judicial review of a lower court of government agency).

Opinion of the Court

The appeal was dismissed and certiorari granted; the lower court’s decision was vacated and remanded. The court said the issue of an individual’s interest in liberty is of such weight and gravity that a higher standard of proof is required than is normal in civil cases brought under state law. Because of the uncertainties of psychiatric diagnosis, the burden of proof does not need to be as high as “beyond a reasonable doubt” in criminal cases, but should be a “clear and convincing” standard of proof as required by the Fourteenth Amendment in such a civil proceeding to commit an individual involuntarily for an indefinite period to a state psychiatric hospital.

Further, the opinion touched on the issue of an involuntary commitment as primarily medical in nature and needing the expertise of mental health experts.

Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.

Subsequent Developments

The court raised the bar for committing someone against their will in a civil commitment proceeding. When the stakes are exceptionally high in civil matters, the burden of proof must be “clear and convincing evidence”. The case raised important issues regarding civil commitment by placing the burden of proof on the petitioner, that is the party seeking the involuntary commitment of a person.

The opinion also suggested that it was not necessarily for the trier of facts to draw the necessary conclusions without the expertise of psychiatrists and psychologists.

The Supreme Court also cited the Addington case in Santosky v. Kramer, which set a clear and convincing evidence standard in termination of parental rights cases.

What is Involuntary Commitment?

Introduction

Involuntary commitment, civil commitment, or involuntary hospitalisation (also known informally as sectioning or being sectioned in some jurisdictions, such as the UK) is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hospital (inpatient) where they can be treated involuntarily. This treatment may involve the administration of psychoactive drugs, including involuntary administration. In many jurisdictions, people diagnosed with mental health disorders can also be forced to undergo treatment while in the community; this is sometimes referred to as outpatient commitment and shares legal processes with commitment.

Refer to Voluntary Commitment.

Criteria for civil commitment are established by laws which vary between nations. Commitment proceedings often follow a period of emergency hospitalisation, during which an individual with acute psychiatric symptoms is confined for a relatively short duration (e.g. 72 hours) in a treatment facility for evaluation and stabilisation by mental health professionals who may then determine whether further civil commitment is appropriate or necessary. Civil commitment procedures may take place in a court or only involve physicians. If commitment does not involve a court there is normally an appeal process that does involve the judiciary in some capacity, though potentially through a specialist court.

Historically, until the mid-1960s in most jurisdictions in the US, all committals to public psychiatric facilities and most committals to private ones were involuntary. Since then, there have been alternating trends towards the abolition or substantial reduction of involuntary commitment, a trend known as “deinstitutionalisation”. In many currents, individuals can voluntarily admit themselves to a mental health hospital and may have more rights than those who are involuntarily committed. This practice is referred to as voluntary commitment.

In the United States, an indefinite form of commitment is applied to people convicted of some sexual offences.

Purpose

For most jurisdictions, involuntary commitment is applied to individuals believed to be experiencing a mental illness that impairs their ability to reason to such an extent that the agents of the law, state, or courts determine that decisions will be made for the individual under a legal framework. In some jurisdictions, this is a proceeding distinct from being found incompetent. Involuntary commitment is used in some degree for each of the following although different jurisdictions have different criteria. Some jurisdictions limit involuntary treatment to individuals who meet statutory criteria for presenting a danger to self or others. Other jurisdictions have broader criteria. The legal process by which commitment takes place varies between jurisdictions. Some jurisdictions have a formal court hearing where testimony and other evidence may also be submitted where subject of the hearing is typically entitled to legal counsel and may challenge a commitment order through habeas corpus. Other jurisdictions have delegated these power to physicians, though may provide an appeal process that involves the judiciary but may also involve physicians. For example in the UK a mental health tribunal consists of a judge, a medical member, and a lay representative.

First Aid

Training is gradually becoming available in mental health first aid to equip community members such as teachers, school administrators, police officers, and medical workers with training in recognising, and authority in managing, situations where involuntary evaluations of behaviour are applicable under law. The extension of first aid training to cover mental health problems and crises is a quite recent development. A mental health first aid training course was developed in Australia in 2001 and has been found to improve assistance provided to persons with an alleged mental illness or mental health crisis. This form of training has now spread to a number of other countries (Canada, Finland, Hong Kong, Ireland, Singapore, Scotland, England, Wales, and the United States). Mental health triage may be used in an emergency room to make a determination about potential risk and apply treatment protocols.

Observation

Observation is sometimes used to determine whether a person warrants involuntary commitment. It is not always clear on a relatively brief examination whether a person should be committed.

Containment of Danger

Refer to Obligatory Dangerousness Criterion.

Austria, Belgium, Germany, Israel, the Netherlands, Northern Ireland, Russia, Taiwan, Ontario (Canada), and the United States have adopted commitment criteria based on the presumed danger of the defendant to self or to others.

People with suicidal thoughts may act on these impulses and harm or kill themselves.

People with psychosis are occasionally driven by their delusions or hallucinations to harm themselves or others. Research has found that those who suffer from schizophrenia are between 3.4 and 7.4 times more likely to engage in violent behaviour than members of the general public. However, because other confounding factors such as childhood adversity and poverty are correlated with both schizophrenia and violence it can be difficult to determine whether this effect is due to schizophrenia or other factors. In an attempt to avoid these confounding factors, researchers have tried comparing the rates of violence amongst people diagnosed with schizophrenia to their siblings in a similar manner to twin studies. In these studies people with schizophrenia are found to be between 1.3 and 1.8 times more likely to engage in violent behaviour.

People with certain types of personality disorders can occasionally present a danger to themselves or others.

This concern has found expression in the standards for involuntary commitment in every US state and in other countries as the danger to self or others standard, sometimes supplemented by the requirement that the danger be imminent. In some jurisdictions, the danger to self or others standard has been broadened in recent years to include need-for-treatment criteria such as “gravely disabled”.

Deinstitutionalisation

Refer to Deinstitutionalisation.

Starting in the 1960s, there has been a worldwide trend toward moving psychiatric patients from hospital settings to less restricting settings in the community, a shift known as deinstitutionalisation. Because the shift was typically not accompanied by a commensurate development of community-based services, critics say that deinstitutionalisation has led to large numbers of people who would once have been inpatients as instead being incarcerated or becoming homeless. In some jurisdictions, laws authorising court-ordered outpatient treatment have been passed in an effort to compel individuals with chronic, untreated severe mental illness to take psychiatric medication while living outside the hospital (e.g. Laura’s Law and Kendra’s Law).

Before the 1960s deinstitutionalisation there were earlier efforts to free psychiatric patients. Philippe Pinel (1745-1826) ordered the removal of chains from patients.

In a study of 269 patients from Vermont State Hospital done by Courtenay M. Harding and associates, about two-thirds of the ex-patients did well after deinstitutionalisation.

Around the World

France

In 1838, France enacted a law to regulate both the admissions into asylums and asylum services across the country. Édouard Séguin developed a systematic approach for training individuals with mental deficiencies, and, in 1839, he opened the first school for the intellectually disabled. His method of treatment was based on the idea that the intellectually disabled did not suffer from disease.

United Kingdom

In the United Kingdom, provision for the care of the mentally ill began in the early 19th century with a large state-led effort. Public mental asylums were established in Britain after the passing of the 1808 County Asylums Act. This empowered magistrates to build rate-supported asylums in every county to house the many ‘pauper lunatics’. Nine counties first applied, and the first public asylum opened in 1812 in Nottinghamshire. Parliamentary Committees were established to investigate abuses at private madhouses like Bethlem Hospital – its officers were eventually dismissed and national attention was focused on the routine use of bars, chains and handcuffs and the filthy conditions the inmates lived in. However, it was not until 1828 that the newly appointed Commissioners in Lunacy were empowered to license and supervise private asylums.

The Lunacy Act 1845 was an important landmark in the treatment of the mentally ill, as it explicitly changed the status of mentally ill people to patients who required treatment. The Act created the Lunacy Commission, headed by Lord Shaftesbury, to focus on lunacy legislation reform. The commission was made up of eleven Metropolitan Commissioners who were required to carry out the provisions of the Act; the compulsory construction of asylums in every county, with regular inspections on behalf of the Home Secretary. All asylums were required to have written regulations and to have a resident qualified physician. A national body for asylum superintendents – the Medico-Psychological Association – was established in 1866 under the Presidency of William A. F. Browne, although the body appeared in an earlier form in 1841.

At the turn of the century, England and France combined had only a few hundred individuals in asylums. By the late 1890s and early 1900s, this number had risen to the hundreds of thousands. However, the idea that mental illness could be ameliorated through institutionalisation was soon disappointed. Psychiatrists were pressured by an ever-increasing patient population. The average number of patients in asylums kept on growing. Asylums were quickly becoming almost indistinguishable from custodial institutions, and the reputation of psychiatry in the medical world had hit an extreme low.

United States

In the United States, the erection of state asylums began with the first law for the creation of one in New York, passed in 1842. The Utica State Hospital was opened approximately in 1850. The creation of this hospital, as of many others, was largely the work of Dorothea Lynde Dix, whose philanthropic efforts extended over many states, and in Europe as far as Constantinople. Many state hospitals in the United States were built in the 1850s and 1860s on the Kirkbride Plan, an architectural style meant to have curative effect.

In the United States and most other developed societies, severe restrictions have been placed on the circumstances under which a person may be committed or treated against their will as such actions have been ruled by the United States Supreme Court and other national legislative bodies as a violation of civil rights and/or human rights (e.g. O’Connor v. Donaldson). Thus a person is rarely committed against their will and it is illegal for a person to be committed for an indefinite period of time.

United Nations

United Nations General Assembly Resolution 46/119, “Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care“, is a non-binding resolution advocating certain broadly drawn procedures for the carrying out of involuntary commitment. These principles have been used in many countries where local laws have been revised or new ones implemented. The UN runs programmes in some countries to assist in this process.

Criticism

The dangers of institutions were chronicled and criticized by reformers almost since their foundation. Charles Dickens was an outspoken and high-profile early critic, and several of his novels, in particular Oliver Twist and Hard Times demonstrate his insight into the damage that institutions can do to human beings.

Enoch Powell, when Minister for Health in the early 1960s, was a later opponent who was appalled by what he witnessed on his visits to the asylums, and his famous “water tower” speech in 1961 called for the closure of all NHS asylums and their replacement by wards in general hospitals:

“There they stand, isolated, majestic, imperious, brooded over by the gigantic water-tower and chimney combined, rising unmistakable and daunting out of the countryside – the asylums which our forefathers built with such immense solidity to express the notions of their day. Do not for a moment underestimate their powers of resistance to our assault. Let me describe some of the defenses which we have to storm.”

Scandal after scandal followed, with many high-profile public inquiries. These involved the exposure of abuses such as unscientific surgical techniques such as lobotomy and the widespread neglect and abuse of vulnerable patients in the US and Europe. The growing anti-psychiatry movement in the 1960s and 1970s led in Italy to the first successful legislative challenge to the authority of the mental institutions, culminating in their closure.

During the 1970s and 1990s the hospital population started to fall rapidly, mainly because of the deaths of long-term inmates. Significant efforts were made to re-house large numbers of former residents in a variety of suitable or otherwise alternative accommodation. The first 1,000+ bed hospital to close was Darenth Park Hospital in Kent, swiftly followed by many more across the UK. The haste of these closures, driven by the Conservative governments led by Margaret Thatcher and John Major, led to considerable criticism in the press, as some individuals slipped through the net into homelessness or were discharged to poor quality private sector mini-institutions.

Wrongful Involuntary Commitment

Mental health professionals have, on occasion, wrongfully deemed individuals to have symptoms of a mental disorder, and thereby commit the individual for treatment in a psychiatric hospital. Claims of wrongful commitment are a common theme in the anti-psychiatry movement.

In 1860, the case of Elizabeth Packard, who was wrongfully committed that year and filed a lawsuit and won thereafter, highlighted the issue of wrongful involuntary commitment. In 1887, investigative journalist Nellie Bly went undercover at an asylum in New York City to expose the terrible conditions that mental patients at the time had to deal with. She published her findings and experiences as articles in New York World, and later made the articles into one book called Ten Days in a Mad-House.

In the first half of the twentieth century there were a few high-profile cases of wrongful commitment based on racism or punishment for political dissenters. In the former Soviet Union, psychiatric hospitals were used as prisons to isolate political prisoners from the rest of society. British playwright Tom Stoppard wrote Every Good Boy Deserves Favour about the relationship between a patient and his doctor in one of these hospitals. Stoppard was inspired by a meeting with a Russian exile. In 1927, after the execution of Sacco and Vanzetti in the United States, demonstrator Aurora D’Angelo was sent to a mental health facility for psychiatric evaluation after she participated in a rally in support of the anarchists. Throughout the 1940s and 1950s in Canada, 20,000 Canadian children, called the Duplessis orphans, were wrongfully certified as being mentally ill and as a result were wrongfully committed to psychiatric institutions where they were forced to take psychiatric medication that they did not need, and were abused. They were named after Maurice Duplessis, the premier of Quebec at the time, who deliberately committed these children to in order to misappropriate additional subsidies from the federal government. Decades later in the 1990s, several of the orphans sued Quebec and the Catholic Church for the abuse and wrongdoing. In 1958, black pastor and activist Clennon Washington King Jr. tried enrolling at the University of Mississippi, which at the time was white, for summer classes; the local police secretly arrested and involuntarily committed him to a mental hospital for 12 days.

Patients are able to sue if they believe that they have been wrongfully committed. In one instance, Junius Wilson, an African American man, was committed to Cherry Hospital in Goldsboro, North Carolina in 1925 for an alleged crime without a trial or conviction. He was castrated. He continued to be held at Cherry Hospital for the next 67 years of his life. It turned out he was deaf rather than mentally ill.

In many American states sex offenders who have completed a period of incarceration can be civilly committed to a mental institution based on a finding of dangerousness due to a mental disorder. Although the United States Supreme Court determined that this practice does not constitute double jeopardy, organisations such as the American Psychiatric Association (APA) strongly oppose the practice. The Task Force on Sexually Dangerous Offenders, a component of APA’s Council on Psychiatry and Law, reported that “in the opinion of the task force, sexual predator commitment laws represent a serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and the clinical conditions for compulsory treatment. Moreover, by bending civil commitment to serve essentially non-medical purposes, statutes threaten to undermine the legitimacy of the medical model of commitment.”

What is O’Connor vs. Donaldson (1975)?

Introduction

O’Connor v. Donaldson, 422 U.S. 563 (1975), was a landmark decision of the US Supreme Court in mental health law ruling that a state cannot constitutionally confine a non-dangerous individual who is capable of surviving safely in freedom by themselves or with the help of willing and responsible family members or friends.

Since the trial court jury found, upon ample evidence, that petitioner did so confine respondent, the Supreme Court upheld the trial court’s conclusion that petitioner had violated respondent’s right to liberty.

Refer to Involuntary Commitment.

Overview

Kenneth Donaldson (confined patient) had been held for 15 years in Florida State Hospital at Chattahoochee, due to needs of “care, maintenance, and treatment.” He filed a lawsuit against the hospital and staff members claiming they had robbed him of his constitutional rights, by confining him against his will. Donaldson won his case (including monetary damages) in United States District Court, which was affirmed by the United States Court of Appeals for the Fifth Circuit. In 1975, the United States Supreme Court agreed that Donaldson had been improperly confined but vacated the award of damages. On remand, the Fifth Circuit ordered that a new trial on damages be held.

A finding of “mental illness” alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the “mentally ill” can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.

May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty. In short, a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.

Kenneth Donaldson

The origins of Donaldson’s institutionalisation began in 1943, at age 34, when he suffered a traumatic episode. He was hospitalized and received treatment, before resuming life with his family.

In 1956 Donaldson travelled to Florida to visit his elderly parents. While there, Donaldson reported that he believed one of his neighbours in Philadelphia might be poisoning his food. His father, worried that his son suffered from paranoid delusions, petitioned the court for a sanity hearing. Donaldson was evaluated, diagnosed with “paranoid schizophrenia,” and civilly committed to the Florida State mental health system. At his commitment trial, Donaldson did not have legal counsel present to represent his case. Once he entered the Florida hospital, Donaldson was placed with dangerous criminals, even though he had never been proved to be dangerous to himself or others. His ward was understaffed, with only one doctor (who happened to be an obstetrician) for over 1,000 male patients. There were no psychiatrists or counsellors, and the only nurse on site worked in the infirmary.

He spent 15 years as a patient; he did not receive any treatment, actively refusing it, and attempting to secure his release. Throughout his stay he denied he was ever mentally ill, and refused to be put into a halfway house.

Donaldson later wrote a book about his experience as a mental patient titled Insanity Inside Out.

What is the California Mental Health Services Act (2005)?

Introduction

On November 2004, voters in the US state of California passed Proposition 63, the Mental Health Services Act (MHSA), which has been designed to expand and transform California’s county mental health service systems.

The MHSA is funded by imposing an additional one percent (1%) tax on individual, but not corporate, taxable income in excess of one million dollars. In becoming law on January 2005, the MHSA represents the latest in a Californian legislative movement, begun in the 1990s, to provide better coordinated and more comprehensive care to those with serious mental illness, particularly in underserved populations. Its claim of successes thus far, such as with the development of innovative and integrated Full Service Partnerships (FSPs), are not without detractors who highlight many problems but especially a lack of oversight, large amount of unspent funds, poor transparency, lack of engagement in some communities, and a lack of adherence to required reporting as challenges MHSA implementation must overcome to fulfil the law’s widely touted potential.

Background

At one time, California was known for having a strong mental health system. Treatment was available for Medi-Cal recipients with few limitations on care. Legislators and voters have acknowledged the inadequacy of California’s historically underfunded mental health system to care for the state’s residents, especially those with serious mental illness, over the past few decades. In 1991, to build a more community- and county-based system of care, the California legislature instituted realignment, a delegation of the control over mental health funds and care delivery from state to county. This was followed by a succession of legislation targeted towards marginalised populations with high documented rates of mental illness, such as the homeless (AB 2034, in 1999) and the potentially violent mentally ill (Laura’s Law, in 2002). However, with the passage of Proposition 63 in 2004, California voters acted upon a widespread perception that state and county mental health systems were still in disrepair, underfunded, and requiring a systematic, organizational overhaul. This perception echoed a nationwide perspective, with the President’s New Freedom Commission on Mental Health in 2003 calling for fundamental transformation of the historically fragmented mental health system. The MHSA is California’s attempt to lead the way in accomplishing such systemic reform.

In the end, voter consciences were pricked by the well-organised and -funded campaign that displayed both the need (50,000 mentally ill homeless people, according to the National Alliance on Mental Illness) and the promise (successes of past mental health initiatives) of increased funding for the mental health system. Then-Assemblyman Darrell Steinberg and Rusty Selix, executive director of the Mental Health Association in California, led the initiative by collecting at minimum 373,816 signatures, along with financial ($4.3 million) and vocal support from stakeholders. Though Governor Arnold Schwarzenegger and the business community were opposed to Proposition 63 because of the tax it would impose on millionaires, the opposition raised only $17,500. On 02 November 2004, Proposition 63 passed with 53.8% of the vote, with 6,183,119 voting for and 5,330,052 voting against the bill.

Overview

The voter-approved MHSA initiative provides for developing, through an extensive stakeholder process, a comprehensive approach to providing community based mental health services and supports for California residents. Approximately 51,000 taxpayers in California will be helping to fund the MHSA through an estimated $750 million in tax revenue during fiscal year 2005-2006.

The MHSA was an unprecedented piece of legislation in California for several reasons:

  • Its funding source, quantity, and allocation is dedicated for mental health services, including times of budget cuts to many other public programmes
  • It was intended to engage communities in prioritising which service elements would be funded.
  • It was focused on developing preventive and innovative programmes to help transform the mental health care system in California.

To accomplish its objectives, the MHSA applies a specific portion of its funds to each of six system-building components:

  • Community programme planning and administration (10%).
  • Community services and supports (45%).
  • Capital (buildings) and information technology (IT) (10%).
  • Education and training (human resources) (10%).
  • Prevention and early intervention (20%).
  • Innovation (5%).

Notably, none of the funds were to be used for programmes with existing fund allocations, unless it was for a new element or expansion in those existing programmes. 51% of the funds have to be spent on children’s service.

The MHSA stipulates that the California State Department of Mental Health (DMH) will contract with county mental health departments (plus two cities) to develop and manage the implementation of its provisions. Oversight responsibility for MHSA implementation was handed over to the sixteen member Mental Health Services Oversight and Accountability Commission (MHSOAC) on July 7, 2005, when the commission first met.

The MHSA specifies requirements for service delivery and supports for children, youths, adults and older adults with serious emotional disturbances and/or severe mental illnesses. MHSA funding will be made annually to counties to:

  • Define serious mental illness among children, adults and seniors as a condition deserving priority attention, including prevention and early intervention services and medical and supportive care
  • Reduce the long-term adverse impact on individuals, families and State and local budgets resulting from untreated serious mental illness.
  • Expand the kinds of successful, innovative service programs for children, adults and seniors already established in California, including culturally and linguistically competent approaches for underserved population.
  • Provide State and local funds to adequately meet the needs of all children and adults who can be identified and enrolled in programmes under this measure.
  • Ensure all funds are expended in the most cost-effective manner and services are provided in accordance with recommended best practices, subject to local and State oversight to ensure accountability to taxpayers and to the public.

Implementation

Starting from enactment, implementation of the MHSA was intended to take six months; in reality, the process of obtaining stakeholder input for administrative rules extended this period by several months. By August 2005, 12 meetings and 13 conference calls involving stakeholders across the state resulted in the final draft of rules by which counties would submit their three-year plans for approval.

Counties are required to develop their own three-year plan, consistent with the requirements outlined in the act, in order to receive funding under the MHSA. Counties are obliged to collaborate with citizens and stakeholders to develop plans that will accomplish desired results through the meaningful use of time and capabilities, including things such as employment, vocational training, education, and social and community activities. Also required will be annual updates by the counties, along with a public review process. County proposals will be evaluated for their contribution to achieving the following goals:

  • Safe and adequate housing, including safe living environments, with family for children and youths.
  • Reduction in homelessness.
  • A network of supportive relationships.
  • Timely access to needed help, including times of crisis.
  • Reduction in incarceration in jails and juvenile halls.
  • Reduction in involuntary services, including reduction in institutionalisation and out-of-home placements.

MHSA specifies three stages of local funding, to fulfil initial plans, three year plans, and long term strategies. No services would be funded in the first year of implementation. The DMH approved the first county plan in January 2006. Allocations for each category of funding were planned to be granted annually, based upon detailed plans with prior approval. However, an amendment to the MHSA, AB 100, which passed in March 2011, serves to streamline the DMH approval and feedback process to the counties, ostensibly to relieve the DMH of some of its administrative burden.

Roles & Responsibilities

While the county mental health departments are involved in the actual implementation of MHSA programmes, the MHSA mandates that several entities support or oversee the counties. These include the State Department of Mental Health (DMH) and the Mental Health Services Oversight and Accountability Commission (MHSOAC).

California State Department of Mental Health (DMH)

In accordance with realignment, the DMH approves county three-year implementation plans, upon comment from the MHSOAC, and passes programmatic responsibilities to the counties. In the first few months immediately following its passage, the DMH has:

  • Obtained federal approvals and Medi-Cal waivers, State authority, additional resources and technical assistance in areas related to implementation.
  • Established detailed requirements for the content of local three year expenditure plans.
  • Developed criteria and procedures for reporting of county and state performance outcomes.
  • Defined requirements for the maintenance of current State and local efforts to protect against supplanting existing programmes and their funding streams.
  • Developed formulas for how funding will be divided or distributed among counties.
  • Determined how funding will flow to counties and set up the mechanics of distribution.
  • Established a 16-member Mental Health Services Oversight and Accountability Commission (MHSOAC), composed of elected State officials and Governor appointees, along with procedures for MHSOAC review of county planning efforts and oversight of DMH implementation.
  • Developed and published regulations and provide preliminary training to all counties on plan development and implementation requirements.

The DMH has directed all counties to develop plans incorporating five essential concepts:

  • Community collaboration.
  • Cultural competence.
  • Client/family-driven mental health system for older adults, adults and transition age youth and family-driven system of care for children and youth.
  • Wellness focus, which includes the concepts of recovery and resilience.
  • Integrated service experiences for clients and their families throughout their interactions with the mental health system.

The DMH, in assuming and asserting its primacy over MHSA implementation, has dictated requirements for service delivery and supports as follows:

  • Full Service Partnership (FSP) Funds: Funds to provide necessary services and supports for initial populations.
  • General System Development Funds: Funds to improve services and infrastructure.
  • Outreach and Engagement Funding: Funds for those populations that are currently receiving little or no service.

Mental Health Services Oversight and Accountability Commission (MHSOAC)

The authors of the MHSA created the MHSOAC to reflect the consumer-oriented focus of the law, mandating at least two appointees with severe mental illness, two other family members of individuals with severe mental illness, and various other community representatives. This diverse commission holds the responsibility of approving county implementation plans, helping develop mental illness stigma-relieving strategies, and recommending service delivery improvements to the state on an as-needed basis. Whenever the commission identifies a critical issue related to the performance of a county mental health programme, it may refer the issue to the DMH.

The first meeting of the MHSOAC was held July 7, 2005, at which time Proposition 63 author Darrell Steinberg was selected unanimously by fellow commissioners as chairman, without comment or discussion. After accepting the gavel, Steinberg was roundly praised for devising Proposition 63’s ‘creative financing’ scheme. Steinberg then said, “We must focus on the big picture,” and stated his priorities with regard to the implementation of the MHSA:

  • Prioritise prevention and early intervention, without falling into the trap of fail first service provision;
  • Address “the plight of those at risk of falling off the edge,”; and
  • Advocate for mental health services from his “bully pulpit.”

MHSOAC Commissioners

In accordance with MHSA requirements, the Commission shall consist of 16 voting members as follows:

  • The Attorney General or his or her designee.
  • The Superintendent of Public Instruction or his or her designee.
  • The Chairperson of the Senate Health and Human Services Committee or another member of the Senate selected by the President pro Tempore of the Senate.
  • The Chairperson of the Assembly Health Committee or another member of the Assembly selected by the Speaker of the Assembly.
  • Twelve appointees of the Governor, who shall seek individuals who have had personal or family experience with mental illness, to include:
    • Two persons with a severe mental illness.
    • A family member of an adult or senior with a severe mental illness.
    • A family member of a child who has or has had a severe mental illness.
    • A physician specialising in alcohol and drug treatment.
    • A mental health professional.
    • A county Sheriff.
    • A Superintendent of a school district.
    • A representative of a labour organisation.
    • A representative of an employer with less than 500 employees.
    • A representative of an employer with more than 500 employees.
    • A representative of a health care services plan or insurer.

State Government Appointees

The initial government officials and designee appointed:

  • Senator Wesley Chesbro (Democrat), of Arcata, chair of the Senate Budget and Fiscal Review Committee and the Senate Select Committee on Developmental Disabilities and Mental Health.
  • Assemblyman Mark Ridley-Thomas (Dem), of Los Angeles, a member of the Assembly Health committee and former L.A. city councilman.
  • Attorney General Bill Lockyer, of Hayward, a former State Senator and Assemblyman.
  • Darrell Steinberg (Dem), of Sacramento, an attorney, the author of Proposition 63, former Assemblyman. Steinberg is the appointee of the Superintendent of Public Instruction.

Governor’s Appointees

On 21 June 2005, then Governor Schwarzenegger announced his appointment of twelve appointees to the MHSOAC:

  • MHOAC Vice Chairman Linford Gayle (declined to state party), 46, of Pacifica, a mental health program specialist at San Mateo County Mental Health Services.
  • Karen Henry (Republican), 61, of Granite Bay, a labour attorney and a board member of California National Alliance for the Mentally Ill (NAMI). Henry is afflicted by ‘rapid cycling’ bipolar disorder, has a son who has autism, and another son with a mental illness.
  • William Kolender (Rep), 70, of San Diego, the San Diego County Sheriff and president of the State Sheriffs Association, a member of the State Board of Corrections, and was for three years the director of the California Youth Authority (CYA). Kolender’s wife died as a result of mental illness, and he has a son with a mental disorder.
  • Kelvin Lee, Ed.D. (Rep), 58, of Roseville, a superintendent of the Dry Creek Joint Elementary School District.
  • Andrew Poat (Rep), 45, of San Diego, former director of the government relations department for the City of San Diego, a member of the public policy committee for the San Diego Gay and Lesbian Centre, and a former deputy director of the United States Office of Consumer Affairs. Poat represented employers of more than 500 workers on the commission, and says he will use his experience building multimillion-dollar programs to bring together mental health advocates.
  • Darlene Prettyman (Rep), 71, of Bakersfield, is a psychiatric nurse, a board member and past president of NAMI California, and a past chairman and a member of the California Mental Health Planning Council. Her son has schizophrenia, and her stated priority is to enhance provision of housing for mental health service clients.
  • Carmen Diaz (Dem), 53, of Los Angeles, a family advocate coordinator with the L.A. County Department of Mental Health and a board member of United Advocates for Children of California. Diaz has a family member with a severe mental illness.
  • F. Jerome Doyle (Dem), 64, of Los Gatos, is chief executive officer of EMQ (a provider of mental health services for children and youth), a board member and past president of the California Council of Community Mental Health Agencies, and a board member of California Mental Health Advocates for Children.
  • Saul Feldman DPA, (Dem), 75, of San Francisco, is chairman and CEO of United Behavioural Health, a member of the American Psychological Association, the founder and former president of the American College of Mental Health Administration, and a former president and CEO of Health America Corporation of California. Feldman was appointed as a health care plan insurer.
  • Gary Jaeger, M.D. (Dem), 62, of Harbour City, is currently the chief of addiction medicine at Kaiser Foundation Hospital, South Bay, a member and former chair of the Behavioural Health Advisory Board of the California Healthcare Association, and former medical director of family recovery services at St. Joseph Hospital in Eureka. He says members of his family have an “80 percent rate of drug and alcohol abuse.”
  • Mary Hayashi (Dem), 38, of Castro Valley, president of the Iris Alliance Fund and a board member for Planned Parenthood Golden Gate and member of the Board of Registered Nursing. Hayashi’s concerns include transportation access for clients and paratransit services, and represents employers with 500 or fewer workers.
  • Patrick Henning (Dem), 32, of West Sacramento, is the legislative advocate for the California Council of Laborers. He was previously the Assistant Secretary at the Labour and Workforce Development Agency (An Agency that he helped create), deputy director for the Department of Industrial Relations and Prior to his State service Special Advisor and Congressional Liaison to President Bill Clinton. Henning is a member of the Career Technical Education Standards and Framework Advisory Group and the California Assembly Speaker’s Commission on Labour Education. He represents labour.

Current Progress

One unqualified success story from the MHSA thus far involves the implementation of Full Service Partnerships (FSPs) demonstrating the “whatever it takes” commitment to assist in individualised recovery – whether it is housing, “integrated services, flexible funding [such as for childcare], intensive case management, [or] 24 h access to care.” FSP interventions are based upon evidence from such programs as Assertive community treatment (ACT), which has effectively reduced homelessness and hospitalisations while bettering outcomes. But the FSP model looks more like that of the also-popular MHA Village in Long Beach, which is a centre that offers more comprehensive services besides those specifically mental health-related. Beyond these guiding principles, however, there has not been much consensus over unifying strategies to define and implement an FSP – resulting in varying FSP structures across counties.

Overall, though, the Petris Centre, funded by the DMH and California HealthCare Foundation to evaluate the MHSA, has reported quantifiable improvements in many areas:

  • Homelessness rates.
  • Entry rates into the criminal justice system.
  • Suffering from illness.
  • Daily functioning.
  • Education rates.
  • Employment rates.
  • General satisfaction with FSPs.

Continued Challenges

According to the UCLA Centre for Health Policy Research, the 2007 and 2009 California Health Interview Surveys (CHIS) demonstrate continued mental health needs of almost two million Californians, about half of which were unmet in 2011. In spite of steady tax revenue ($7.4 billion raised as of September 2011) earmarked for the MHSA, the unremittingly high numbers of mentally ill who lack treatment contrast starkly with the implementation of new programs like the FSPs, which may cost tens of thousands of dollars annually per person. The MHA Village programme, for example, averages around $18,000 annually per person. One of the major growing concerns regarding MHSA implementation is its unintentional but worrying tendency to create silos of care. As directed by the DMH, counties search for “unserved” mentally ill or at-risk individuals to enrol in their new programmes, while keeping existing and perhaps underserved clients in old programs that are usually underfunded, but cannot take MHSA funds. Ironically, while the MHSA was established in part to address racial/ethnic disparities in health care, it may be perpetuating the disparity in services delivery between underfunded and well-funded, new programmes.

A possible solution to this issue highlights another challenge for the MHSA: the need for more comprehensive evaluation, oversight, and advisory mechanisms. Though there is an accountability commission, the MHSOAC, its oversight and regulatory responsibilities are not well-defined. However, it is a relatively new entity, having been created by the MHSA in 2004, and has yet to fully delineate its role in the MHSA. With time, the MHSOAC will hopefully continue to develop towards its stated function. Objective and expert evaluation of the MHSA will also be necessary to achieve the kind of longstanding system-wide improvement that then becomes a model for others.

What is the Marchman Act (1993)?

Introduction

The Marchman Act, officially the “Hal S. Marchman Alcohol and Other Drug Services Act of 1993”, is a Florida law that provides a means of involuntary and voluntary assessment and stabilisation and treatment of a person allegedly abusing alcohol or drugs.

Refer to the Baker Act 1971, Lanterman-Petris-Short Act 1967, Laura’s Law 2002, and Kendra’s Law 1999.

Text of the Act

INVOLUNTARY CATEGORIES AND CRITERIA

The involuntary assessment and treatment has two categories non-court and court involved admissions. The criteria for involuntary admission is:

“There is good faith reason to believe the person is substance abuse impaired and, because of such impairment:

  1. Has lost the power of self-control with respect to substance use; AND EITHER

2a. Has inflicted, or threatened or attempted to inflict, or unless admitted is likely to inflict, physical harm on himself or herself or another; OR

b. Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that the person is incapable of appreciating his or her need for such services and of making a rational decision in regard thereto; however, mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services. “

It is under Title XXIX – PUBLIC HEALTH Chapter 397 -SUBSTANCE ABUSE SERVICES of the Florida Statutes. The links to these paragraphs are listed below:

PART IV

VOLUNTARY ADMISSIONS PROCEDURES

‘397.601 Voluntary admissions.

PART V

INVOLUNTARY ADMISSIONS PROCEDURES

397.675-397.6977

A. General Provisions

B. Non-court Involved Admissions: Protective Custody

C. Non-court Involved Admissions; Emergency

D. Non-court Involved Admissions; Alternative Involuntary Assessment for Minors

E. Court Involved Admissions, Civil Involuntary Proceedings; Generally

F. Court Involved Admissions; Involuntary Assessment; Stabilization

G. Court Involved Admissions; Involuntary Treatment

PART VII

OFFENDER REFERRALS

397.705 Referral of substance abuse impaired offenders to service providers.

397.706 Screening, assessment, and disposition of juvenile offenders.

PART VIII

INMATE SUBSTANCE ABUSE PROGRAMS

397.752 Scope of part.

397.753 Definitions.

397.754 Duties and responsibilities of the Department of Corrections.

Criteria

Criteria for involuntary admission is listed under the 397.675.

Timeframes

  • 3-5 days for assessment under special conditions (minors or emergency admissions).
  • Non-Court protective custody is limited to 3 days (72 hours). The court can order involuntary treatment at a licensed service provider for a period not to exceed 60 days.

Procedure

  • A sworn affidavit is signed at the local county courthouse or clerk’s office.
  • A hearing is set before the court after a Petition for Involuntary Assessment and Stabilisation is filed.
  • Following the hearing, the individual is held for up to five days for medical stabilisation and assessment.
  • A Petition for Treatment must be filed with the court and a second hearing is held for the court to review the assessment.
  • Based on the assessment and the recommendation that the individual needs extended help, the judge can then order a 60-day treatment period with a possible 90-day extension, if necessary.
  • If the addict exits treatment in violation of the judge’s order, the addict must return to court and answer to the court as to why they did not comply with treatment. Then the individual is returned immediately for involuntary care.
  • If the addict refuses, they are held in civil contempt of court for not following treatment order and are ordered to either return to treatment or be incarcerated.

Costs

It is an unfunded state requirement and each community must allocate funds for it.

Additionally, there are filing fees with the court.

What is Kendra’s Law (1999)?

Introduction

Kendra’s Law, effective since November 1999, is a New York State law concerning involuntary outpatient commitment also known as assisted outpatient treatment.

It grants judges the authority to issue orders that require people who meet certain criteria to regularly undergo psychiatric treatment. Failure to comply could result in commitment for up to 72 hours. Kendra’s Law does not mandate that patients be forced to take medication.

It was originally proposed by members of the National Alliance on Mental Illness, the Alliance on Mental Illness of New York State, and many local NAMI chapters throughout the state. They were concerned that laws were preventing individuals with serious mental illness from receiving care until after they became “dangerous to self or others”. They viewed outpatient commitment as a less expensive, less restrictive and more humane alternative to inpatient commitment.

The members of NAMI, working with NYS Assemblywoman Elizabeth Connelly, NYC Department of Mental Health Commissioner Doctor Luis Marcos, and Doctor Howard Telson were successful in getting a three-year pilot commitment program started at Bellevue Hospital. When the Bellevue outpatient commitment programme came to an end, Attorney General Eliot Spitzer, the Treatment Advocacy Centre and DJ Jaffe put together a coalition to pass a statewide law. It was based on the same concept as the Bellevue Outpatient Commitment Programme but with important differences.

Refer to Baker Act 1971, Lanterman-Petris-Short Act 1967, Laura’s Law 2002, and the Marchman Act 1993.

Background

In 1999, there was a series of incidents involving individuals with untreated mental illness becoming violent. In one assault in the New York City Subway, Andrew Goldstein, then 29 and diagnosed with schizophrenia but off medication, pushed Kendra Webdale into the path of an oncoming N train at the 23rd Street station. Goldstein had recently attempted to get treatment but had been turned away. Kendra’s family joined a coalition led by Governor Pataki, the Treatment Advocacy Centre and DJ Jaffe, and the family played a significant role in getting the law passed. Subsequently, in a similar incident, Julio Perez, age 43, pushed Edgar Rivera in front of an uptown 6 train at 51st Street. Rivera lost his legs and became a strong supporter of the law. Kendra’s Law, introduced by Governor George E. Pataki, was created as a response to these incidents. In 2005, the law was extended for 5 years.

As a result of these incidents, involuntary outpatient commitment moved from being seen as a program to help people with mental illness to a program that could increase public safety. Public safety advocates joined advocates in trying to take the Bellevue Pilot Program statewide. What was formerly known as involuntary outpatient commitment was re-named euphemistically as “assisted outpatient treatment”, in an attempt to imply a positive intent of the law.

Criteria

Kendra’s Law allows courts to order certain people diagnosed with mental illness to attend treatment as a condition for living in the community. The law is aimed at those who have a pattern of not following treatment recommendations which has resulted in re-hospitalisation, and/or violent behaviour placing the patient or others as serious risk of physical harm.

In order to be admitted to Kendra’s Law, individuals must meet the following criteria established in Section 9.60 of NYS Mental Health Law. A patient may be ordered to obtain assisted outpatient treatment if the court finds by clear and convincing evidence that:

  • The patient is eighteen years of age or older; and
  • The patient is suffering from a mental illness; and
  • The patient is unlikely to survive safely in the community without supervision, based on a clinical determination; and
  • The patient has a history of lack of compliance with treatment for mental illness that has:
    • At least twice within the last thirty-six months been a significant factor in necessitating hospitalisation in a hospital, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility, not including any period during which the person was hospitalised or incarcerated immediately preceding the filing of the petition or;
    • Resulted in one or more acts of serious violent behaviour toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any period in which the person was hospitalised or incarcerated immediately preceding the filing of the petition; and
  • The patient is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment pursuant to the treatment plan; and
  • In view of the patient’s treatment history and current behaviour, the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others as defined in section 9.01 of this article; and
  • It is likely that the patient will benefit from assisted outpatient treatment; and
  • If the patient has executed a health care proxy as defined in article 29-C of the public health law, that any directions included in such proxy shall be taken into account by the court in determining the written treatment plan; and
  • The treatment plan set forth is the least restrictive plan that is most likely to benefit the patient.

A patient can only be ordered to Assisted Outpatient Treatment for a maximum 12-month period. The Assisted Outpatient Treatment may be renewed by petition filed prior to the current order’s expiration. Where the petition is for a renewal, the 36-month limit for re-hospitalisations and the 48-month limit for violent behaviour do not apply.

Support

The New York Times reported:

“a study has found that a controversial program that orders these patients to receive treatment when they are not hospitalized has had positive results. Patients were much less likely to end up back in psychiatric hospitals and were arrested less often. Use of outpatient treatment significantly increased, as did refills of medication. Costs to the mental health system and Medicaid of caring for these patients dropped by half or more.”

According to the Treatment Advocacy Centre, the following organisations (in part or in full) support the law:

  • National:
    • Treatment Advocacy Center (TAC).
    • American Psychiatric Nurses Association.
    • American Psychiatric Association.
    • National Alliance on Mental Illness (NAMI).
    • National Sheriffs Association.
    • National Crime Prevention Council.
  • Statewide:
    • National Alliance on Mental Illness New York State (NAMI NYS).
    • NYS Association of Chiefs of Police (NYSCOP).
  • Regional/local:
    • AMI-Friends of NYS Psychiatric Institute, NYC.
    • NAMI/Familya of Rockland County.
    • NAMI Schenectady.
    • NAMI Chautauqua County.
    • NAMI of Buffalo and Erie County.
    • NAMI of NYC/Staten Island.
    • NAMI Orange County.
    • NAMI Champlain Valley.
    • Harlem Alliance for the Mentally Ill.
    • NAMI of Montgomery, Fulton, Hamilton Counties.
    • NAMI/Albany Relatives.
    • NAMI North Country.
    • Albany County Forensic Task Force.
    • Westchester County Chiefs of Police Association.
    • Orange County Police Chiefs Association.
    • Town of New Windsor, Police Department.
    • Town of Chester, NY Police Department.
    • Town of Mechanicville, Police Department.
    • West Seneca, NY Police Department.
    • Broome County District Attorney.
  • Selected individual supporters:
    • Dr. Xavier Amador – author, I am Not Sick, I Don’t Need Help!
    • Pete Early – author, Crazy: A Father’s Search Through America’s Mental Health Madness.
    • Rael Jean Isaac – co-author, Madness in the Streets.
    • Dr. Richard Lamb – Dept. of Psychiatry, USC.
    • Edgar Rivera – lost legs in subway pushing.
    • E. Fuller Torrey – author, Surviving Schizophrenia.
    • Pat Webdale – mother of Kendra Webdale.
    • Dr. Robert Yolken – Director of Developmental Neurovirology Johns Hopkins Univ.
    • DJ Jaffe, Executive Dir. Mental Illness Policy Org.
  • Media editorial supporters:
    • New York Times.
    • Newsday.
    • New York Post.
    • Daily News.
    • Albany Times Union.
    • Buffalo News.
    • Troy News.
    • Office of the Attorney General.
    • NYS Public Employees Federation.
    • Greater NY Hospital Association.
    • Citizens Crime Commission.
    • Victim Services Agency.
    • Visiting Nurses Service.
    • Justice for All.
    • St. Francis Residence.

Moreover, research (outlined in the “Studies” section below) specifically on Kendra’s Law in New York State shows lower rates of violence, homelessness, arrest, incarceration, and cost. It shows that shows those who support Kendra’s Law say it helps them get well and stay well. Research in other states that have Assisted Outpatient Treatment programs have also shown positive results.

Courts have ruled that Assisted Outpatient Treatment (Kendra’s Law) does not violate rights citing the narrow criteria, the fact that the law does not provide for medication over objection (“force”) and the government interest in reducing violence.

Supporters note that the system in the United States is so different from that in the UK that studies that aggregate community treatment orders (CTOs) used in the UK and elsewhere overseas with Kendra’s Law as practiced in the US do not give as accurate a picture as studies exclusively on Kendra’s Law. They note that the Cochrane Study quoted by opponents of Assisted Outpatient Treatment did not include any of the studies on Kendra’s Law, or Assisted Outpatient Treatment as practiced in other states, and only included a pilot program, the Bellevue Outpatient Commitment Program, that was never taken statewide.

In addition, the New York Times reported on Kendra’s Law:

The “program that orders these patients to receive treatment when they are not hospitalized has had positive results. Patients were much less likely to end up back in psychiatric hospitals and were arrested less often. Use of outpatient treatment significantly increased, as did refills of medication. Costs to the mental health system and Medicaid of caring for these patients dropped by half or more.”

Opposition

Kendra’s Law is opposed for different reasons by many groups, most notably the anti-psychiatry movement and the New York Civil Liberties Union. Opponents say that the law has harmed the mental health system, because it can deter people from seeking treatment. The implementation of the law is also criticised as being racially and socioeconomically biased.

Studies

A 2017 Cochrane systematic review of the literature, that included three relatively small randomized controlled trials, did not find significant differences in the use of services, social functioning, or quality of life when comparing compulsory community treatment with standard voluntary care or brief supervised discharge. The systematic review did report that people who receive compulsory community treatment may be less likely to be victims of crime, both violent and non-violent.

A randomised, controlled trial published in The Lancet concluded, “the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients. We found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients’ personal liberty.”

Of 442 patients assessed, 336 patients were randomly assigned to be discharged from hospital either on CTO (167 patients) or Section 17 leave (169 patients). One patient withdrew directly after randomisation and two were ineligible, giving a total sample of 333 patients (166 in the CTO group and 167 in the Section 17 group). At 12 months, despite the fact that the length of initial compulsory outpatient treatment differed significantly between the two groups (median 183 days CTO group vs 8 days Section 17 group, p<0·001) the number of patients readmitted did not differ between groups (59 [36%] of 166 patients in the CTO group vs 60 [36%] of 167 patients in the Section 17 group; adjusted relative risk 1·0 [95% CI 0·75—1·33]).

A 2005 study, “Kendra’s Law: A Final Report on the Status of Assisted Outpatient Treatment”, done by New York State’s Office of Mental Health, concluded, “Over a three year period prior to their AOT order, almost all (97%) had been hospitalised (with an average of three hospitalisations per recipient), and many experienced homelessness, arrest, and incarceration. During participation in the AOT programme, rates for hospitalisations, homelessness, arrests, and incarcerations have declined significantly, and programme participants have experienced a lessening of the stress associated with these events.”

The same study found 55% fewer recipients engaged in suicide attempts or physical harm to self; 47% fewer physically harmed others; 46% fewer damaged or destroyed property; 43% fewer threatened physical harm to others and the average decrease in harmful behaviour was 44%. 74% fewer participants experienced homelessness; 77% fewer experienced psychiatric hospitalisation; there was a 56% reduction in length of hospitalization; 83% fewer experienced arrest; 87% fewer experienced incarceration; 49% fewer abused alcohol and 48% fewer abused drugs. The number of individuals exhibiting good adherence to meds increased 51%; The number of individuals exhibiting good service engagement increased 103%.

The study found that of those subjects included in the sample, 75% reported that AOT helped them gain control over their lives; 81% said AOT helped them get and stay well; 90% said AOT made them more likely to keep appointments and take medications; 87% of participants said they were confident in their case manager’s ability, and 88% said they and their case manager agreed on the issues to be addressed.

The study reported the following effects on the mental health system. “Improved access to services. AOT has been instrumental in increasing accountability at all system levels regarding delivery of services to high need individuals. Community awareness of AOT has resulted in increased outreach to individuals who had previously presented engagement challenges to mental health service providers.” “Improved treatment plan development, discharge planning, and coordination of service planning. Processes and structures developed for AOT have resulted in improvements to treatment plans that more appropriately match the needs of individuals who have had difficulties using mental health services in the past.” “Improved collaboration between mental health and court systems. As AOT processes have matured, professionals from the two systems have improved their working relationships, resulting in greater efficiencies, and ultimately, the conservation of judicial, clinical, and administrative resources.” “There is now an organized process to prioritize and monitor individuals with the greatest need …” AOT ensures greater access to services for individuals whom providers have previously been reluctant to serve. …” “There is now increased collaboration between inpatient and community-based providers.”

A 2009 study, New York State Assisted Outpatient Treatment Evaluation done by Duke University, Policy Research Associates, University of Virginia, concluded that New York State’s programme had the following effects on the mental health system:

improves a range of important outcomes for its recipients, apparently without feared negative consequences to recipients. The increased services available under AOT clearly improve recipient outcomes, however, the AOT court order, itself, and its monitoring do appear to offer additional benefits in improving outcomes. It is also important to recognize that the AOT order exerts a critical effect on service providers stimulating their efforts to prioritize care for AOT recipients.

The authors said that the evaluation reflected not just the compulsory aspects of the programme, but the additional resources provided for recipients, particularly in New York City.

The same study found “No evidence that the AOT Program is disproportionately selecting African Americans for court orders, nor is there evidence of a disproportionate effect on other minority populations. Our interviews with key stakeholders across the state corroborate these findings.” “AOT order exerts a critical effect on service providers stimulating their efforts to prioritize care for AOT recipients.” “After 12 months or more on AOT, service engagement increased such that AOT recipients were judged to be more engaged than voluntary patients. This suggests that after 12 months or more, when combined with intensive services, AOT increases service engagement compared to voluntary treatment alone.” “Despite being under a court order to participate in treatment, current AOT recipients feel neither more positive nor more negative about their treatment experiences than comparable individuals who are not under AOT.”

One study found Kendra’s Law has lowered risk of violent behaviour, reduced thoughts about suicide, and enhanced capacity to function despite problems with mental illness. Patients given mandatory outpatient treatment were four times less likely than members of the control group to perpetrate serious violence after undergoing treatment. Patients who underwent mandatory treatment reported higher social functioning and slightly less stigma, rebutting claims that mandatory outpatient care is a threat to self-esteem.

Another study found, “For those who received AOT, the odds of any arrest were 2.66 times greater (p<.01) and the odds of arrest for a violent offense 8.61 times greater (p<.05) before AOT than they were in the period during and shortly after AOT. The group never receiving AOT had nearly double the odds (1.91, p<.05) of arrest compared with the AOT group in the period during and shortly after assignment.”

Another study found, “The odds of arrest for participants currently receiving AOT were nearly two-thirds lower (OR=.39, p<.01) than for individuals who had not yet initiated AOT or signed a voluntary service agreement.”

A study previously cited also found, “The likelihood of psychiatric hospital admission was significantly reduced by approximately 25% during the initial six-month court order … and by over one-third during a subsequent six-month renewal of the order…. Similar significant reductions in days of hospitalization were evident during initial court orders and subsequent renewals…. Improvements were also evident in receipt of psychotropic medications and intensive case management services. Analysis of data from case manager reports showed similar reductions in hospital admissions and improved engagement in services.”

A peer-reviewed study that included an analysis on the costs of Assisted Outpatient Treatment found that in New York City net costs declined 50% in the first year after Assisted Outpatient Treatment began and an additional 13% in the second year. In non-NYC counties, costs declined 62% in the first year and an additional 27% in the second year. This was in spite of the fact that psychotropic drug costs increased during the first year after initiation of Assisted Outpatient Treatment, by 40 percent and 44 percent in the city and five-county samples, respectively. The increased community-based mental health costs were more than offset by the reduction in inpatient and incarceration costs. Cost declines associated with Assisted Outpatient Treatment were about twice as large as those seen for voluntary services.

Another study found that “In all three regions, for all three groups, the predicted probability of a M(edication) P(ossession) R(atio) ≥80% improved over time (AOT improved by 31–40 percentage points, followed by enhanced services, which improved by 15–22 points, and ‘neither treatment,’ improving 8–19 points).”

Another peer review study on the effect of AOT on the mental health system found that “In tandem with New York’s AOT program, enhanced services increased among involuntary recipients, whereas no corresponding increase was initially seen for voluntary recipients. In the long run, however, overall service capacity was increased, and the focus on enhanced services for AOT participants appears to have led to greater access to enhanced services for both voluntary and involuntary recipients.”

Finally, a study found individuals in AOT stay in treatment after AOT ends. “When the court order was for seven months or more, improved medication possession rates and reduced hospitalization outcomes were sustained even when the former AOT recipients were no longer receiving intensive case coordination services.”

Current Status

On 15 January 2013, then New York Governor Andrew Cuomo signed into law a new measure that extended Kendra’s Law through 2017.

47 states have adopted laws allowing for assisted outpatient treatment.

In February 2021, Governor Cuomo suggested that state lawmakers should revisit or expand Kendra’s law, after New York City experienced a spate of violent attacks committed by people with untreated mental illness.

What is Laura’s Law (2002)

Introduction

Laura’s Law is a California state law that allows for court-ordered assisted outpatient treatment. To qualify for the program, the person must have a serious mental illness plus a recent history of psychiatric hospitalisations, jailing or acts, threats or attempts of serious violent behaviour towards self or others. A complete functional outline of the legal procedures and safeguards within Laura’s Law has been prepared by NAMI San Mateo.

The law was named after Laura Wilcox, a receptionist who was killed by a man who had refused psychiatric treatment. Modelled on Kendra’s Law (1999), a similar statute enacted in New York, the bill was introduced as Assembly Bill 1421 by Assemblywoman Helen Thomson, a Democrat from Davis. The measure passed the California Legislature in 2002 and was signed into law by Governor Gray Davis. The statute can only be used in counties that choose to enact outpatient commitment programs based on the measure. As of 2010, Nevada County has fully implemented the law and Los Angeles County has a pilot project. In 2010 the California State Association of Counties chose Nevada County to receive its Challenge Award for implementing Laura’s Law. Subsequently, in 2011, a National Association of Counties Achievement Award in Health was awarded to Nevada County for the Assisted Outpatient Treatment Programme.

Refer to Baker Act 1971, Lanterman-Petris-Short Act 1967, Kendra’s Law 1999, and the Marchman Act 1993.

Background

Laura Wilcox was a 19-year-old college sophomore who had been valedictorian of her high school before going on to study at Haverford College. While working at Nevada County’s public mental health clinic during her winter break from college, on 10 January 2001, she and two other people were shot to death by Scott Harlan Thorpe, a 40-year-old man who resisted his family’s and a social worker’s attempt to have him hospitalised when he became increasingly delusional and paranoid. Thorpe was found incompetent to stand trial and was sent to Atascadero State Hospital and was later transferred to California’s Napa State Hospital. After the incident Laura’s parents chose to advocate for assisted outpatient treatment of individuals considered to have mental illness.

Implementation at County Discretion

The law is only operative in those counties in which the county board of supervisors, by resolution, authorizes its application and makes a finding that no voluntary mental health programme serving adults, and no children’s mental health program, was reduced in order to implement the law.

In 2004, Los Angeles County implemented Laura’s Law on a limited basis. Since the passage of the MHSA, Kern County, Los Angeles County, Nevada County, Orange County, Placer County, San Diego County, San Mateo County, Yolo County, Contra Costa County, the City and County of San Francisco, Ventura County, San Luis Obispo County, Alameda County and Mendocino County have approved implementation of Laura’s Law. Marin County launched a two-year pilot programme for Laura’s Law on 04 September 2018. Santa Clara County adopted it 25 May 2021, with 23 out of 58 counties having opted in before the 30 June deadline.

In those counties that adopt outpatient commitment, an AB 1421 programme will ensure individuals are provided the services and medical treatment (including medication) that will enable the person to have a good chance to recover. Nevada County Director Michael Heggarty bests describes it as part of the recovery movement.

Proposition 63 Impact

In November 2004, California voters passed Proposition 63. When the California Department of Mental Health (DMH) released its draft plan requirements for county mental health administrators on 15 February 2005, they contained a provision that would allow MHSA funds to be used for “involuntary services” if certain criteria were met. Nevada County’s Laura’s Law programme and Los Angeles County’s AOT pilot project are utilising MHSA funding for services.

Assisted outpatient treatment eligibility criteria
As stated above, the patient must have a serious mental illness plus a recent history of psychiatric hospitalizations, jailings or acts, threats or attempts of serious violent behavior towards self or others. The recipient must also have been offered an opportunity to voluntarily participate in a treatment plan by the local mental health department, yet fails to the point that, without a Laura’s Law program, he or she will likely relapse or deteriorate to the point of being dangerous to self or others. “Participation in the assisted outpatient program is the least restrictive placement necessary to ensure the person’s recovery and stability.” While a specified group of individuals may request an investigation to determine if a person qualifies for a Laura’s Law program, only the County mental health director, or his or her designee, may file a petition with the superior court for a hearing to determine if the person should be court ordered to receive the services specified under the law.

A person may be placed in an assisted outpatient treatment if, after a hearing, a court finds that the following criteria[19] have been met. The patient must:

  • Be eighteen years of age or older.
  • Be suffering from a mental illness.
  • Be unlikely to survive safely in the community without supervision, based on a clinical determination.
  • Have a history of non-compliance with treatment that has either:
    • Been a significant factor in his or her being in a hospital, prison or jail at least twice within the last thirty-six months; or
    • Resulted in one or more acts, attempts or threats of serious violent behaviour toward self or others within the last forty-eight months.
  • Have been offered an opportunity to voluntarily participate in a treatment plan by the local mental health department but continue to fail to engage in treatment.
  • Be substantially deteriorating.
  • Be, in view of his or her treatment history and current behaviour, in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would likely result in the person meeting California’s inpatient commitment standard, which is being:
    • A serious risk of harm to himself or herself or others; or
    • Gravely disabled (in immediate physical danger due to being unable to meet basic needs for food, clothing, or shelter).
  • Be likely to benefit from assisted outpatient treatment.
  • Participation in the assisted outpatient programme is the least restrictive placement necessary to ensure the person’s recovery and stability.

If the court finds that the individual meets the statutory criteria, the recipient will be provided intensive community treatment services and supervision by multidisciplinary teams of highly trained mental health professionals with staff-to-client ratios of not more than 1 to 10, and additional services, as specified, for persons with the most persistent and severe mental illness. The law specifies various rights of the person who is the subject of a Laura’s Law petition as well as due process hearing rights. The bill also provides for voluntary settlement agreements as an alternative to the hearing process.

Debate over Bill’s Efficacy and Propriety

Supporters

Passage of the bill was supported by organisations such as the California Treatment Advocacy Coalition (an affiliate of the Treatment Advocacy Centre), the California Psychiatric Association, the Police Chiefs Association, Mental Illness Policy Org. and the National Alliance on Mental Illness (NAMI). In an editorial endorsement of the law, the Los Angeles Times touted then-Governor Gray Davis’s support, while limiting its comments on opponents to mentioning that the Citizens Commission on Human Rights which opposes virtually all psychiatric treatments, sponsored a rally at the Capitol against Laura’s law. The San Francisco Chronicle and The San Francisco Examiner have published positive articles on the topic. The Los Angeles Times won a Pulitzer Prize, in part for its coverage of Laura’s Law.

Opposition

MindFreedom International and the California Network of Mental Health Clients (CNMHC), along with allies in the psychiatric survivors movement, also fought the measure and its earlier versions, accusing such legislation as a regressive and reprehensible scheme to enforce coerced drug treatment regimens against the will of patients. The Church of Scientology and the Citizens Commission on Human Rights have also gained attention as an opponent of the new law.

Outpatient commitment opponents make several varied arguments. Some dispute the positive effects of compulsory treatment, questioning the methodology of studies that show effectiveness. Others highlight negative effects of treatment. Still others point to disparities in the way these laws are applied. The psychiatric survivors movement opposes compulsory treatment on the basis that the ordered drugs often have serious or unpleasant side-effects such as anhedonia, tardive dyskinesia, neuroleptic malignant syndrome, excessive weight gain leading to diabetes, addiction, sexual side effects, and increased risk of suicide.

John M. Grohol, Psy.D., in his article “The Double Standard of Forced Treatment”, says:

“Forced treatment for people with mental illness has had a long and abusive history, both here in the United States and throughout the world. No other medical specialty has the rights psychiatry and psychology do to take away a person’s freedom in order to help “treat” that person. Historically, the profession has suffered from abusing this right — so much so that reform laws in the 1970s and 1980s took the profession’s right away from them to confine people against their will. Such forced treatment now requires a judge’s signature. But over time, that judicial oversight — which is supposed to be the check in our checks-and-balance system — has largely become a rubber stamp to whatever the doctor thinks is best. The patient’s voice once again threatens to become silenced, now under the guise of “assisted outpatient treatment” (just a modern, different term for forced treatment).”

The New Mexico Court of Appeals declared an Albuquerque ordinance, modelled after Kendra’s Law, requiring treatment for some mentally ill people conflicts with state law and can’t be enforced.

Tom Burns

Tom Burns, the psychiatrist who originally advised the United Kingdom’s government on laws that are similar to Laura’s Law, has also come to the conclusion they are ineffective and unnecessary. Professor Burns, once a strong supporter of the new powers, said he has been forced to change his mind after a study he conducted proved the orders “don’t work”.

However, Burns’ opinion was based heavily on his (very different) circumstances in the United Kingdom. The study he conducted found that coerced treatment was no better than regular/competent un-coerced treatment (the standard in the United Kingdom, which has public healthcare). As a result, the bulk of his argument does not apply to California, where the alternative to coerced treatment in most cases is no treatment at all. Professor Burns himself admitted that: “We were careful in our Lancet article to say that in well-coordinated mental health services, compulsory treatment has nothing to offer”.

Burns went on to highlight another critical difference between the two systems, and even mentioned that as a psychiatrist under a European system he would be willing to order coercive treatment under circumstances similar to the ones described by Laura’s Law:

“There’s a profound conceptual difference in the approach to mental health care between America and Europe. European laws often state “danger to self or others,” but danger in Europe is almost always interpreted very broadly — and you might think paternalistically — to include the patient’s mental health. If I have a seriously ill schizophrenic patient who is neglecting himself, not taking his medicine, and I know he’s going to get worse, I can say that’s a “danger” to his health. My understanding is that in many states in America, it’s got to be an imminent physical risk.”

What is the Lanterman-Petris-Short Act 1967?

Introduction

The Lanterman-Petris-Short (LPS) Act (Chapter 1667 of the 1967 California Statutes, codified as Cal. Welf & Inst. Code, sec. 5000 et seq.) regulates involuntary civil commitment to a mental health institution in the state of California.

Refer to the Baker Act 1971, Laura’s Law (2002), Kendra’s Law (1999), and the Marchman Act 1993.

Background

The act set the precedent for modern mental health commitment procedures in the United States. The bipartisan bill was co-authored by California State Assemblyman Frank D. Lanterman (R) and California State Senators Nicholas C. Petris (D) and Alan Short (D), and signed into law in 1967 by Governor Ronald Reagan. The Act went into full effect on 01 July 1972. It cited seven articles of intent:

  • To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, people with developmental disabilities, and persons impaired by chronic alcoholism, and to eliminate legal disabilities;
  • To provide prompt evaluation and treatment of persons with serious mental disorders or impaired by chronic alcoholism;
  • To guarantee and protect public safety;
  • To safeguard individual rights through judicial review;
  • To provide individualised treatment, supervision, and placement services by a conservatorship program for gravely disabled persons;
  • To encourage the full use of all existing agencies, professional personnel and public funds to accomplish these objectives and to prevent duplication of services and unnecessary expenditures; and
  • To protect mentally disordered persons and developmentally disabled persons from criminal acts.

The Act in effect ended all hospital commitments by the judiciary system, except in the case of criminal sentencing, e.g. convicted sexual offenders, and those who were “gravely disabled”, defined as unable to obtain food, clothing, or housing. It did not, however, impede the right of voluntary commitments. It expanded the evaluative power of psychiatrists and created provisions and criteria for holds.

Prior to 1987 it was assumed that the Act allowed involuntary treatment for those who were detained under an initial three-day hold (for evaluation and treatment) and a subsequent fourteen-day hospitalisation (for those people declared after the three-day hold to be dangerous to themselves or others or gravely disabled). However, in the 1987 case of Riese v. St. Mary’s Hospital and Medical Centre, the California Court of Appeal declared that these people had the right to exercise informed consent regarding the use of antipsychotic drugs, except in an emergency, and if they rejected medication “a judicial determination of their incapacity to make treatment decisions” was required before they could be involuntarily treated. This case was a class action suit brought in the name of person Eleanor Riese by the California ACLU. Eleanor Riese’s story is depicted in the movie 55 Steps.

LPS Evaluation, Detention and Conservatorship Process

Under the LPS Act, individuals can be detained into a locked psychiatric facility in the following process.

5150 Hold

Under California Welfare and Institutions Code (WIC) 5150, an individual can be placed (involuntarily) to a locked psychiatric facility, for an evaluation for up to 72 hours. Any peace officer or specific individuals authorized by a county government may place the hold. Three criteria apply – the individual is assessed to be: a danger to themselves, a danger to others, or “gravely disabled”. Per WIC 5008, grave disability is defined as an individual’s lack of ability, due to their mental illness, to provide for their food, clothing, or shelter. In the case of children, it is the inability to use food, clothing, or shelter even if it is supplied.

As the individual in question is likely in a state of distress (highly symptomatic), and likely also causing a disturbance in the community, it is not uncommon for police to be the party who places them on the 5150 hold and then takes the individual to the hospital for further assessment. Over the next 72 hours, the hospital/psychiatrist must determine the individuals need for further locked psychiatric detainment. If the individual’s condition clears up and they are no longer a danger to others or themselves or gravely disabled, they are released from the hospital. If, however, they remain a danger to others or themselves or continue to be gravely disabled, the hospital/psychiatrist may then request a 5250 hold to thereby keep the individual in the hospital beyond the 72-hour limit of the 5150 hold.

In Popular Culture

Largely because the production of many American movies and television programs are based in California, usage of the term “5150” has spread beyond its original location and user population. An album of the same name by the California hard rock band Van Halen was named directly for the code section, and several derivative uses followed.

5250 Hold

If, after a 72-hour hold, an individual is deemed to still be a danger to others or themselves, or is gravely disabled, WIC 5250 permits for an individual to be involuntarily held (in a locked psychiatric hospital) for another 14 days.

Unlike a 5150 hold a 5250 hold requires that the individual served receive a court hearing within 4 days of being served to ascertain the validity of the hold. Court hearings are often held in the hospital. Individuals are provided an attorney and a county court officer reviews the evidence for the hold presented by the hospital, hears the argument of the client and their attorney, and decides whether or not to uphold the 5250.

Just as with the 5150 hold, during the 5250 hold, the individual is continually being assessed by psychiatric staff. Again, if the individual is (at any time) deemed to be no longer a danger or gravely disabled, they are then released from the hospital.

According to section 5257 of the act, the individual must be released after 14 days, unless, they agree to further treatment on a voluntary basis; they are certified for an additional 14 days of intensive treatment; they are certified for an additional 30 days of intensive treatment; they are the subject of a conservatorship (commonly known as a Temporary LPS Conservatorship) petition or they are the subject of a petition for post-certification treatment of a dangerous person.

5350 Hold/Temporary LPS Conservatorship

A 5350 hold, otherwise known as a Temporary LPS Conservatorship (under W&I Code § 5352.1), is initiated at the end of 5250/14-day hold. Such is initiated by the individual’s treating psychiatrist and co-signed by the medical director of the psychiatric facility to the Public Guardian Office in the individuals county of residence. The basis for the LPS Temporary Conservatorship is that the individual (due to their mental illness, even after ~17 days of involuntary psychiatric detention) remains “gravely disabled.”

There are 58 counties in California, each with its own independent Public Guardian Offices. Unlike other conservatorship processes in California (Probate / Older adult or Limited / Developmentally disabled) – a LPS Conservatorship cannot be initiated by the public at large. Codified in the WIC – the individual must go through the 5150 – 5250 process and from there the county Public Guardian is the only authorised party to be able to request for a LPS Conservatorship. The legislative intent for such was that prior to the LPS act, it was felt individuals were often psychiatrically committed for subjective (if not outright punitive) reasons. To combat such potential abuses, the county Public Guardian, seen as an impartial, third party was designated as sole party.

Once the individual is on a LPS Temporary Conservatorship, they are no longer legally on a “hold,” but now, legal consent to treat and continue to detain the individual (now known as the “conservatee”) lies with the Public Guardian office.

A Temporary LPS Conservatorship can last a maximum of 180 days. As the county superior court has direct oversight of LPS Conservatorship matters, typically the conservatee is afforded court hearings (for status) every 30 days. Unlike other conservatorship hearing, LPS Conservatorship matters / records are NOT open to the public.

With 58 counties, the Public Guardian Office and Superior Courts may interpret and practice differing ways legal administration of LPS Conservatorship. In general, all conservatees are appointed legal counsel (typically the public defender office) and during the course of their LPS Conservatorship they can ask for a series of writs and hearing or even a full jury trial to contest their detention and overall LPS Conservatorship. It is not uncommon for a psychiatrist to conversely declare the conservatee is no longer gravely disabled. During the course of the LPS Conservatorship if the conservatee stabilises and can thereby be discharged to the community, a psychiatrist can request that the LPS Conservatorship be dismissed (for lack of legal support).

As of the Public Guardian office, during a Temporary LPS Conservatorship, it is their general duty to ensure the conservatee is properly cared for and that all reason efforts are ruled out, that the conservatee continues to require locked psychiatric care.

During the LPS Temporary Conservatorship, it is indeed the Public Guardian, not the conservatee, who consents to treatment and placement. A common way to understand such is parent to child – in that a minor child cannot consent to medical care. The same goes for the conservatee – in that the Public Guardian consents to their psychiatric treatment and placement.

If during the LPS Temporary Conservatorship, the Public Guardian feels the conservatee will (for the foreseeable future) need to remain in locked psychiatric care – they can then seek to have the LPS Conservatorship changed from Temporary to General (also referred to a “Permanent” but this can be a misnomer as it is not permanent / indefinite). With the appointment of a Permanent LPS Conservatorship (approved by the court) – the conservatee is now under the auspice / authority of the LPS Conservator for exactly 1 year. It is with a Permanent LPS Conservatorship that then the public (family / friends) can now become involved. If family / friends request and with court approval, (unlike the Temporary LPS Conservatorship) they can be appointed as the General / Permanent LPS Conservator for the conservatee.

The 1-year duration for a General / Permanent LPS Conservatorship was again codified into the LPS act as to combat past abuses. This ensures that no individual is indefinitely detained in locked psychiatric care and that every year justification to continue the LPS Conservatorship is brought before the court. This too is another difference between LPS conservatorship and Probate or Limited Conservatorship – both which have no implicit expiration date. Indeed, if the LPS Conservator does not submit a request (to the court) to renew the LPS Conservatorship, by default it expires. Renewal of the LPS Conservatorship requires that 2 MD / Psychiatrists / Psychologist formally declare that the LPS Conservatorship still remains appropriate.

During the course of a General / Permanent LPS Conservatorship, the conservatee is most likely held in long-term, locked psychiatric care. Although California State Hospital still exist and are in use, a most LPS Conservatees are placed at local (county level) locked psychiatric hospitals. Nothing though in the LPS act precludes a conservatee being under a LPS Conservatorship and living in the community. No time frame is quantified in the LPS act (as matters vary from conservatee to conservatee), but it is generally practiced (amongst the 58 county Public Guardian Offices) that if a conservatee has been living in the community for an extended period of time – the legal justification to thereby continue the LPS equally diminishes and from there they are bound to dismiss the LPS Conservatorship. As such there is no common duration for a LPS Conservatorship. It can indeed vary from a conservatee being under a single LPS conservatorship continuously for 30 years to others undergoing multiple Temporary LPS Conservatorship over the course of a single year.

Some family of mentally ill individuals believe that the LPS act favors the individual’s civil rights too much when weighed against their self-evident need for treatment. It can be very difficult for their family member to be placed on a 5150 hold or on a LPS Conservatorship. Again per the LPS act – “grave disability” is primarily codified with food, clothing, or shelter. Thus an individual may indeed be highly symptomatic – displaying paranoia, delusions, mania, etc. but if they can present a cogent plan to care for their food, clothing, or shelter – they may very well be released from psychiatric care. Many have argued that revisions should be made to thereby make it easier for individuals to be detained, lessening the restrictions made under the LPS act. In 2018 SB 1045 was signed into CA Law – establishing a pilot program in San Francisco, Los Angeles, and San Diego counties if the counties approve, creating a conservatorship for a person who is unable to care for their own health and well-being due to serious mental illness and substance use disorder. SB 1045 would provide the least restrictive and most clinically appropriate alternative needed for the protection of the person who is incapable of caring for the person’s own health.

What is the Florida Mental Health Act of 1971?

Introduction

The Florida Mental Health Act of 1971 (Florida Statute 394.451-394.47891 [2009 rev.]), commonly known as the “Baker Act,” allows the involuntary institutionalisation and examination of an individual.

Refer to Lanterman-Petris-Short Act 1967, Laura’s Law 2002, Kendra’s Law 1999, and the Marchman Act 1993.

Background

The Baker Act allows for involuntary examination (what some call emergency or involuntary commitment), which can be initiated by judges, law enforcement officials, physicians, or mental health professionals. There must be evidence that the person:

  • Possibly has a mental illness.
  • Is in danger of becoming a harm to self, harm to others, or is self neglectful.

Both of these are defined in the Baker Act.

Examinations may last up to 72 hours after a person is deemed medically stable and occur in over 100 Florida Department of Children and Families-designated receiving facilities statewide.

There are many possible outcomes following examination of the patient. These include the release of the individual to the community (or other community placement), a petition for involuntary inpatient placement (often called civil commitment), involuntary outpatient placement (what some call outpatient commitment or assisted treatment orders), or voluntary treatment (if the person is competent to consent to voluntary treatment and consents to voluntary treatment). The involuntary outpatient placement language in the Baker Act took effect as part of the Baker Act reform in 2005.

The legislation was nicknamed the “Baker Act” after Florida Democratic state representative from Miami, Maxine Baker, who served from 1963 to 1972. She had a strong interest in mental health issues, served as chair of the House Committee on Mental Health, and was the sponsor of the bill.

The nickname has led to the term “Baker Act” as a transitive verb, and “Baker Acted” as a passive-voice verb, for invoking the Act to force an individual’s commitment. Although the Baker Act is a statute only for the state of Florida, use of “Baker Acting” as a verb has become prevalent as a slang term for involuntary commitment in other regions of the United States.

Criteria for Involuntary Examination

Specific criteria must be met in order to initiate involuntary examination. Among those criteria are the following elements, which do not individually qualify an individual as meeting the criteria:

  • Reason to believe that the person has a mental illness;
  • The person refuses voluntary examination; and
  • The person is unable to determine whether examination is necessary.

The decisive criterion, as stated in the statute, mentions a substantial likelihood that without care or treatment the person will cause serious bodily harm in the near future. Criteria are not met simply because a person has a mental illness, appears to have mental problems, takes psychiatric medication, has an emotional outburst, or refuses voluntary examination. Furthermore, if there are family members or friends that will help prevent any potential and present threat of substantial harm, the criteria for involuntary examination are also not met.

The following are not included under this act:

  • Developmental disability.
  • Intoxication.
  • Conditions manifested only by antisocial behaviour.
  • Conditions manifested only by substance abuse impairment.

“Substantial likelihood” must involve evidence of recent behaviour to justify the substantial likelihood of serious bodily harm in the near future. Moments in the past, when an individual may have considered harming themselves or another, do not qualify the individual as meeting the criteria.

Reception

An editorial in the Tampa Bay Times wrote “that crisis stabilization is a Band-Aid solution to emotional problems” and the Act should be reformed to allow public defenders to have access to the patient’s medical records and ongoing counselling and outpatient mental health treatment should be provided to the patient.