Reforming Commitment Law Reforms

IN 1969 THE CALIFORNIA LEGISLATURE passed landmark legislation that enacted the Lanterman-Petris-Short Act (LPS). Before that, involuntary commitment of someone thought to be mentally ill required little more than the signature of a relative or a physician or both. Criteria for release of a patient from a state hospital or other locked facility were capricious and infrequently applied.

LPS provided explicit standards for commitment and due process for those detained. The Short-Doyle Act, already in place to partially fund a system of local mental health clinics, was amended to provide community treatment for those not qualifying for involuntary commitment and for those released from state hospitals.

After 30 years of experience with LPS, families of the mentally ill, a majority of law enforcement, and some providers (primarily psychiatrists) feel strongly that the time has come to revise the law. They contend the number of mentally ill now homeless and increasingly populating county jails and prisons is evidence that the current standards of commitment are too narrow. Opponents, primarily patients themselves, patients' rights activists, scientologists and civil libertarians argue that any revision, particularly any expansion, will only expose more people to psychiatric abuse.

Proponents contend that commitment criteria vary widely from county to county and that the law does not allow for important past history to be considered in hearings and makes no provision for involuntary treatment outside the hospital. Proponents also argue that scientific advances in the neurobiology of the brain make clear that the major psychiatric disorders differ from diabetes, heart disease and cancer only in the organ affected.

More importantly, mental disorders affect the very areas of the brain responsible for the rational thinking required to recognize that one is ill and needs treatment. This compels a reexamination of how much a person's freedom should be limited when the person's behavior has a significant impact on the community and the person has no recognition of what is occurring.

Last year the legislature passed and the governor signed AB 88 by Assemblywoman Helen Thomson. It requires reimbursement for the treatment of major psychiatric illnesses be no different than that provided for other medical illnesses. Assemblywoman Thomson is now undertaking an even greater challenge in trying to revise LPS. Her new bill, AB 1800, does the following:

• Expands existing criteria for "gravely disabled" to include the patient's prior history of mental illness when that shows clear evidence of a recurrence that poses a serious risk of substantial deterioration that is likely to do serious harm to the person if untreated.
  
  
• Extends the 14-day hold to 28 days.
  
  
• Extends the current 180 day post-certification to one year for patients shown to be dangerous to others.
  
  
• Creates a contractual six-month Assisted Outpatient Treatment Program for patients who have been certified for involuntary commitment and who qualify for outpatient treatment.
  
  
• Requires that the burden of proof in determining grave disability or a danger to others be by clear and convincing evidence.
  
  
• Combines in one probable cause hearing the certification that the person meets the commitment criteria and the determination that the person has the capacity to consent to or refuse psychotropic medication (currently a separate "Riese" hearing).
  
  
• Requires that treatment standards in prison conform to the new community standards.
  
  
• Appropriates $350 million for the needed community services.
  
  

We asked Assemblywoman Thomson about her bill and her answers follow.

Q: Some providers, including Community Mental Health Directors, say our problem with serving involuntary patients is inadequate resources, not inadequate commitment and treatment criteria. If the $350 million you are requesting went to the present mental health system, would we need to reform LPS?

A: Of course increased funding of California's public mental health system is essential. It has been chronically underfunded since its inception. However, even with well-funded programs, seriously mentally ill persons who do not believe they are mentally ill do not voluntarily accept proffered treatments. To eliminate the stigma of mental illness and improve access to quality mental health services requires multiple approaches and public policy improvements.

First, equitable insurance coverage, parity, is necessary to provide affordable treatment for those who already have health insurance. We now have that with AB 88.

Second, patients need case management-structured, intensive, comprehensive outpatient care with other needed recovery strategies-to ensure that treatment is working and will continue.

Third, providing the legal authority to intervene with involuntary care earlier in the course of a serious mental illness will increase the access to and effectiveness of treatment. It will also reduce recidivism through the most expensive of all providers, our jails and prisons.

Q: Conversely, if your bill passes and is signed by the Governor, but the appropriation is not approved, will there be sufficient resources to carry out the new law?

A: Reforming the current inadequate process will save resources. Currently many involuntarily committed persons are so seriously mentally ill that they require numerous crisis interventions, often by police officers, emergency rooms and hospitalizations to become stabilized.

I believe it is inhumane to define peoples' ability to provide for their own food, clothing and shelter as being able to find rags to wear, dumpsters to eat from, and bridges to sleep under. AB 1800 is intended to bring people into treatment earlier so that they can recover more quickly. The $350 million in the bill is to improve coordination of outpatient services, case management and monitoring of patients.

Additional money will be saved by combining hearings and by patients voluntarily agreeing to assisted community treatment early on, rather than decompensating further and spending more time in the hospital-or worse, jail or prison.

Q: In a memo to members of the Legislature describing your plans, you used the term "transinstitutionalization." What did you mean?

A: "Transinstitutionalization" means the wholesale shift of the mentally ill from hospitals and outpatient settings to jails and prisons.

Q: Your bill combines the Certification Hearing and the Involuntary Medication Hearing (the Reise hearing). Would the program have to release a person who is found to be a danger to others because of a mental disorder, but who has the capacity to make an informed decision regarding his or her own treatment and chooses not to be treated?

A: Persons certified as a danger to others will continue to be held regardless of their capacity to make informed decisions about their own treatment. Our language regarding the capacity decision applies only to those who are gravely disabled or a danger to self. Persons who are dangerous to others can be treated over their objections for the protection of the community. Persons dangerous to themselves or gravely disabled could be held only if they have the capacity to give informed consent, now determined by the separate Reise hearing.

Q: Besides the philosophic arguments about autonomy and self-determination, some contend that coercive treatment is not effective in the long run. What is your evidence that involuntary outpatient treatment can be successful?

A: I have a large binder of 53 studies on outpatient commitment from recent years that provides evidence that involuntary treatment is effective. Two studies from UC Berkeley's School of Public Health show a relationship between involuntary treatment and an immediate reduction in crime.

The October 1999 revised resource document of the American Psychiatric Association Council on Psychiatry and the Law cites several studies demonstrating improved treatment outcomes, less recidivism and fewer arrests for persons required to accept treatment.

A new Duke study shows that high case management without outpatient committal is now as effective as high case management with outpatient committal.

Q: Opponents of your bill say that bringing more people into involuntary treatment will only result in more abuse of the mentally ill by mental health caretakers. Are there any safeguards in your bill to protect against these alleged abuses?

A: Our state has devolving county programs with little state oversight, especially in mental health. State oversight of the quality of care and avenues for complaint resolution will be necessary to minimize caretaker abuse. The more specific this bill is, the less likely it is to lend itself to provider abuse.

In fact, this bill would make the proposed assisted outpatient treatment program accessible earlier to severely mentally ill persons, providing for all those who qualify the option of getting highly structured and monitored treatment in an outpatient setting rather than in a locked facility. In that way too, AB 1800 would reduce the potential for provider abuse.

Q: A large number of those involuntarily detained are initially under the influence of drugs and alcohol. Shouldn't LPS reform include provisions for this population similar to those you are suggesting for the mentally ill?

A: Substance abuse is a serious public health issue and merits the legislature's attention and action. However, it is necessary to keep AB 1800 as focused as possible so as not to cause confusion with too many highly controversial issues in one bill.

As with parity legislation, LPS reform will be one step at a time. History shows that significant policy changes happen incrementally.