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ANALYSIS OF CALIFORNIA'S ASSISTED TREATMENT LAWS

STATUTORY COMPILATION USED: West’s Annotated California Code

Current Through: 1998 Supplement and West’s California Legislative Service up to Chp. 30 of the 1998 portion of the 1997-98 Regular session

Analysis Completed: 10/98

NOTES:

1. California’s assisted treatment code section, Welfare and Institutions Code § 5000 et seq., is known as the Lanterman-Petris-Short Act ("LPS").
2. Parts enclosed with quotation marks are exact, although sometimes abridged, language from the California Code.

1.    When not the subject of a pending commitment action, what are the prerequisites for an individual to receive voluntarily treatment?

Cal. Welfare and Institutions Code § 6000 ("§ 6000")."any person who is a suitable person for care and treatment in such hospital" may be received by the state mental health department "upon receipt of a written application of admission made in accordance with the following requirements…" which are either that the application is voluntary and the applicant is of competent mind, or that the application is made on the behalf of a conservatee by his or her conservator. Minors are treated differently.

Comment: The requirement that the applicant for voluntary treatment be of sound mind gives rise to the possibility of judicial proceedings to determine the competency of individuals requesting treatment. Except for in an emergency, those asking for assistance found not competent to ask for help would have to be committed before they could be treated.

2.    Conditions necessary for emergency treatment/observation.

§ 5150. "When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation."

§ 5008(h)(1)(A). "Gravely disabled" means a condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.

The chapter does not define "danger," but it does provide this insight:

§ 5008(m). "Emergency" means a situation in which action to impose treatment over the person's objection is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. It is not necessary for harm to take place or become unavoidable prior to treatment.

3.    Is mental illness/disorder defined?

It is not defined in the involuntary commitment section. However, Estate of Chambers, 139 Cal.Rptr. 357, 71 C.A.3d 277 (1977), found the term "mental disorder," limited to those disorders listed by the American Psychiatric Association’s Diagnostic and Statistical Manual of Disorders.

4.    Maximum duration of emergency treatment/observation before a judicial hearing must be held.

§ 5150. 72 hours.

5.    Can a potential committee avoid a hearing determination by opting to voluntarily undergo treatment and, if so, what is the minimum time he or she must then spend in treatment?

§ 5250(c). One of the conditions required for certification for intensive treatment of not more than 14 days is that, "[t]he person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis."

§ 5260(b). A similar condition is required before a second 14 day period of mandated care may be ordered for a person who has recently attempted suicide or exhibited the intent to do so.

§ 5270.15(b). A similar condition is required before an up to 30 day period of mandated care may be ordered for a gravely disabled person.

Comment: In California’s Mental Health Code, it is unclear what restrictions there are on the release of a person who opts for voluntary treatment.

6.    Are there any requirements that a potential committee be capable of deciding to voluntarily undergo treatment?

Yes. See response in section No.1.

7.    Who may petition for an individual to receive assisted inpatient treatment?

§ 5201. "Any individual may apply to the person or agency designated by the county for a petition alleging that there is in the county a person who is, as a result of mental disorder a danger to others, or to himself, or is gravely disabled, and requesting that an evaluation of the person's condition be made."

8.    Required elements of a petition.

§ 5202. "The person or agency designated by the county shall prepare the petition and all other forms required in the proceeding, and shall be responsible for filing the petition. Before filing the petition, the person or agency designated by the county shall request the person or agency designated by the county and approved by the State Department of Mental Health to provide prepetition screening to determine whether there is probable cause to believe the allegations…

Following prepetition screening, the person or agency designated by the county shall file the petition if satisfied that there is probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled, and that the person will not voluntarily receive evaluation or crisis intervention."

§ 5204. "The petition for a court-ordered evaluation shall contain the following:

a.    The name and address of the petitioner and his interest in the case.

b.    The name of the person alleged, as a result of mental disorder, to be a danger to others, or to himself, or to be gravely disabled, and, if known to the petitioner, the address, age, sex, marital status, and occupation of the person.

c.     The facts upon which the allegations of the petition are based.

d.     The name of, as a respondent thereto, every person known or believed by the petitioner to be legally responsible for the care, support, and maintenance of the person alleged, as a result of mental disorder, to be a danger to others, or to himself, or to be gravely disabled, and the address of each such person, if known to the petitioner.

e.    Such other information as the court may require."

Comment: The petition is for an involuntary evaluation of the individual only.

§ 5206. After the evaluation the court may order the detained person released, referred for care, certified for intensive treatment (i.e. additional assisted treatment), or recommended for a conservatorship.

9.    Is there a penalty for filing an unfounded petition?

§ 5203. "Any individual who seeks a petition for court-ordered evaluation knowing that the person for whom the petition is sought is not, as a result of mental disorder, a danger to himself, or to others, or gravely disabled is guilty of a misdemeanor, and may be held liable in civil damages by the person against whom the petition was sought."

10.    Participation of other individuals in assisted treatment hearing (i.e. notice, a right to be heard or standing for family members, legal guardians, doctors, etc.).

§ 5256.4(c). "Reasonable attempts shall be made by the mental health facility to notify family members or any other person designated by the patient, of the time and place of the certification hearing, unless the patient requests that this information not be provided. The patient shall be advised by the facility that is treating the patient that he or she has the right to request that this information not be provided." (For certification for intensive treatment)

§ 5276. This exact same provision applies to habeas corpus hearings reviewing the legality of an involuntary patient’s detention.

Comment: Note that, no matter what his or her mental condition, a hearing subject may require that his family not be given notice of his certification or habeas corpus hearing.

11.    Length of initial term of assisted inpatient treatment.

§ 5250. Not more than 14 days.

12.    Conditions necessary for judicially ordered inpatient treatment (exact wording of key portions of applicable statute desired).

§ 5250. "If a person is detained for 72 hours under the provisions of Article 1 (commencing with Section 5150), or under court order for evaluation pursuant to Article 2 (commencing with Section 5200) or Article 3 (commencing with Section 5225) and has received an evaluation, he or she may be certified for not more than 14 days of intensive treatment related to the mental disorder or impairment by chronic alcoholism, under the following conditions:

(a) The professional staff of the agency or facility providing evaluation services has analyzed the person's condition and has found the person is, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled.

(b) The facility providing intensive treatment is designated by the county to provide intensive treatment, and agrees to admit the person. No facility shall be designated to provide intensive treatment unless it complies with the certification review hearing required by this article. The procedures shall be described in the county Short-Doyle plan as required by Section 5651.3.

(c) The person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis.

(d) (1) Notwithstanding paragraph (1) of subdivision (h) of Section 5008, a person is not "gravely disabled" if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person's basic personal needs for food, clothing, or shelter.

(2) However, unless they specifically indicate in writing their willingness and ability to help, family, friends, or others shall not be considered willing or able to provide this help.

(3) The purpose of this subdivision is to avoid the necessity for, and the harmful effects of, requiring family, friends, and others to publicly state, and requiring the certification review officer to publicly find, that no one is willing or able to assist the mentally disordered person in providing for the person's basic needs for food, clothing, or shelter."

Comment: Requiring that the family’s willingness to provide for a potential committee be submitted in writing benefits the detainee, his family, and the court.

13.    Evidentiary standard under which eligibility for assisted treatment is judged (two most common are "beyond a reasonable doubt" and "clear and convincing evidence").

Not apparent from the mental health code. However, the California court of Appeals, in Department of Corrections v. Office of Administrative Hearings, 61 Cal.Rptr. 2d 903, 53 Cal.App.4th 780 (App.2 Dist. 1997), did hold that in LPS conservatorship proceedings grave disability must be proven beyond a reasonable doubt to a unanimous jury.

14.    Is there a least restrictive treatment requirement?

§ 5325.1(a). Persons with mental illness have a "right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual."

15.    Is there a confidentiality exception for family members of committees and/or individuals undergoing emergency evaluations?

§ 5328.1. "(a) Upon request of a member of the family of a patient, or other person designated by the patient, a public or private treatment facility shall give the family member or the designee notification of the patient's diagnosis, the prognosis, the medications prescribed, the side effects of medications prescribed, if any, and the progress of the patient, if, after notification of the patient that this information is requested, the patient authorizes its disclosure. If, when initially informed of the request for notification, the patient is unable to authorize the release of such information, notation of the attempt shall be made into the patient's treatment record, and daily efforts shall be made to secure the patient's consent or refusal of authorization. However, if a request for information is made by the spouse, parent, child, or sibling of the patient and the patient is unable to authorize the release of such information, the requester shall be given notification of the patient's presence in the facility, except to the extent prohibited by federal law."

"(b) Upon the admission of any mental health patient to a 24-hour public or private health facility licensed pursuant to Section 1250 of the Health and Safety Code, the facility shall make reasonable attempts to notify the patient's next of kin or any other person designated by the patient, of the patient's admission, unless the patient requests that this information not be provided. The facility shall make reasonable attempts to notify the patient's next of kin or any other person designated by the patient, of the patient's release, transfer, serious illness, injury, or death only upon request of the family member, unless the patient requests that this information not be provided. The patient shall be advised by the facility that he or she has the right to request that this information not be provided."

Comment: Except for the conditional burden placed on the hospital to confirm the admission of a patient in response to a family member’s inquiry, this statute has essentially no substance. It forbids the disclosure of medical information to a patient’s family unless the patient gives his consent. That would be the scenario without § 5238.1.

16.    Are advance directives or durable powers of attorney addressed and, if so, in what way?

Not in the mental health code.

17.    Is there a separate proceeding necessary to abrogate a committee’s right to refuse treatment?

§ 5532(b). "If any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall only be administered when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person's incapacity to refuse the treatment, in a hearing held for that purpose."

§§ 5333-37 describe the conduct and portent of the hearing that determines a patient’s capacity to refuse medication.

18.    Does the treating hospital and/or physician have discretion to release individuals before the end of their assisted inpatient care periods?

Yes. Various sections empower the release of patients who no longer meet the initial commitment standard prior to the expiration of their assisted treatment periods.

19.    Individual(s) who may decide to initiate new periods of assisted treatment.

In the various statutes covering the certification of an individual for additional treatment, it is the professional person in charge of the treating facility who initiates the process for re-certification. Under most of these statutes, the signature of another medical professional is also required on the notice of certification.

20.    Type of forum that decides on need for extended assisted treatment (normally either judicial or administrative).

Mainly judicial, but certifications for intensive treatment, for a maximum of 14 days, are presided over by non-judicial commissioners or referees:

§ 5256.1. "The certification review hearing shall be conducted by either a court-appointed commissioner or a referee, or a certification review hearing officer. The certification review hearing officer shall be either a state qualified administrative law hearing officer, a medical doctor, a licensed psychologist, a registered nurse, a lawyer, a certified law student, a licensed clinical social worker, or a licensed marriage, family and child counselor. Licensed psychologists, licensed clinical social workers, licensed marriage, family and child counselors, and registered nurses who serve as certification review hearing officers shall have had a minimum of five years experience in mental health. Certification review hearing officers shall be selected from a list of eligible persons unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors."

Comment: While the above statute does provide for a non-judicial decision-maker, individuals may always apply for a court to order their release from the treatment system by filing a habeas petition, pursuant to § 5275, which would be evaluated by a local superior court following § 5276.

21.    Participation of other individuals in the extension hearing (i.e. notice, a right to be heard and/or right to counsel for family members, legal guardians, doctors, etc.).

None noted other than that described in section No. 10.

22.    Maximum length of subsequent assisted inpatient treatment (and of any possible subsequent periods).

After the initial 14 day certification for intensive treatment has expired, California has separate statutory procedures, with different maximum periods of assisted treatment, for patients who are dangers to themselves, dangers to others, and gravely depraved:

§ 5260 (danger to self-maximum of 14 days of additional treatment).

§ 5270.35 (gravely disabled-maximum of 30 days of additional treatment).

§ 5300 (recent evidence of being a danger to others-maximum of 180 days of additional treatment).

After the periods under either § 5260 or § 5270.35 expire, there is no apparent method for securing further treatment under the California Code other than to establish that an individual is either dangerous to others pursuant to § 5300 or gravely disabled and eligible for a conservatorship under § 5350 et seq.

23.    Alternative(s) to inpatient treatment (i.e., conditional release, trial release,assisted outpatient treatment, etc.)

California allows for outpatient treatment of those who receive care under § 5300, because they are dangerous to others, and of gravely disabled individuals placed under a conservatorship pursuant to § 5350 et seq.:

§ 5305(a). "Any person committed pursuant to Section 5300 may be placed on outpatient status if all of the following conditions are satisfied:

(1) In the evaluation of the superintendent or professional person in charge of the licensed health facility, the person named in the petition will no longer be a danger to the health and safety of others while on outpatient status and will benefit from outpatient status.

(2) The county mental health director advises the court that the person named in the petition will benefit from outpatient status and identifies an appropriate program of supervision and treatment."

§ 5358. This section includes a least restrictive alternative placement requirement for conservatees that clearly includes direct designation to outpatient status.

§ 5358.6. "Any conservator who places his or her conservatee in an inpatient facility pursuant to Section 5358, may also require the conservatee to undergo outpatient treatment. Before doing so, the conservator shall obtain the agreement of the person in charge of a mental health facility that the conservatee will receive outpatient treatment and that the person in charge of the facility will designate a person to be the outpatient supervisor of the conservatee. The person in charge of these facilities shall notify the county mental health director or his or her designee of such agreement. At 90-day intervals following the commencement of the outpatient treatment, the outpatient supervisor shall make a report in writing to the conservator and to the person in charge of the mental health facility setting forth the status and progress of the conservatee."

Comment: While described as outpatient treatment, § 5305 and § 5358.6 are more akin to what is normally considered "conditional release," because both statutes are applicable only to individuals already assigned to inpatient facilities

24.    Maximum duration of alternative(s) to assisted inpatient treatment.

Length of commitment or conservatorship.

25.    Procedure necessary to transfer patient from outpatient to inpatient care.

For those originally treated under § 5300 (danger to self or another). Either the county mental health director, under

§ 5306.5, or the district or county attorney functioning as the county’s representative for the purposes of the mental health code, under § 5307, may petition for the review of the outpatient status of a person committed on the basis of presenting a danger to others pursuant to § 5300. The court that originally granted the individual’s outpatient status shall review the petition within 15 days. Pursuant to § 5308, the county mental health director may hospitalize the individual until the revocation hearing, if he or she is a current danger to self or to another.

For those originally treated under § 5350 et seq. (conservatorship). § 5358(d)(1). "In any case in which a conservator has reasonable cause to believe that his or her conservatee is in need of immediate more restrictive placement because the condition of the conservatee has so changed that the conservatee poses an immediate and substantial danger to himself or herself or others, the conservator shall have the right to place his or her conservatee in a more restrictive facility or hospital. Notwithstanding Section 5328, if the change of placement is to a placement more restrictive than the court-determined placement, the conservator shall provide written notice of the change of placement and the reason therefor to the court, the conservatee's attorney, the county patient's rights advocate and any other persons designated by the court pursuant to subdivision (c)."

Comment: A conservator is only to provide notice of the transfer of a conservatee to inpatient treatment, judicial approval is not required. And notice need only be given if the inpatient placement is more restrictive than the original conservatorship order. However, a conservatee may subsequently challenge his confinement in a habeas corpus hearing under § 7250.

26.     Describe any procedures for conservatorship, guardianship, etc., which are applicable to the mentally ill.

§ 5350.1. "The purpose of conservatorship…is to provide individualized treatment, supervision, and placement."

§ 5350. "A conservator of the person, of the estate, or of the person and the estate may be appointed for any person who is gravely disabled as a result of mental disorder or impairment…"

§ 5352. "When the professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment determines that a person in his care is gravely disabled as a result of mental disorder…and is unwilling to accept, or incapable of accepting, treatment voluntarily, he may recommend conservatorship to the officer providing conservatorship investigation of the county of residence of the person…"

"If the officer providing conservatorship investigation concurs with the recommendation, he shall petition the superior court in the county of residence of the patient to establish conservatorship."

§ 5352.1. "The court may establish a temporary conservatorship for a period not to exceed 30 days and appoint a temporary conservator on the basis of the comprehensive report of the officer providing conservatorship investigation …or on the basis of an affidavit of the professional person who recommended conservatorship…"

§ 5350.2. "Reasonable attempts shall be made by the county mental health program to notify family members or any other person designated by the person for whom conservatorship is sought, of the time and place of the conservatorship hearing. The person for whom the conservatorship is sought shall be advised by the facility treating the person that he or she may request that information about the time and place of the conservatorship hearing not be given to family members, in those circumstances where the proposed conservator is not a family member. The request shall be honored by the mental health program."

§ 5350(d). The person for whom conservatorship is sought shall have the right to demand a court or jury trial on the issue whether he or she is gravely disabled. Demand for court or jury trial shall be made within five days following the hearing on the conservatorship petition. If the proposed conservatee demands a court or jury trial before the date of the hearing as provided for in Section 5365, the demand shall constitute a waiver of the hearing.

Court or jury trial shall commence within 10 days of the date of the demand…"

§ 5358(a)(2)(b). "A conservator shall also have the right, if specified in the court order, to require his or her conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee's being gravely disabled…"

§ 5357. The court may seek to limit a conservatee’s detrimental behavior by imposing restrictions on, among others, the following:

"(a) The privilege of possessing a license to operate a motor vehicle. If the report recommends against this right and if the court follows the recommendation, the agency providing conservatorship investigation shall, upon the appointment of the conservator, so notify the Department of Motor Vehicles."

"(b) The right to enter into contracts. The officer may recommend against the person having the right to enter specified types of transactions or transactions in excess of specified money amounts."

" (d) The right to refuse or consent to treatment related specifically to the conservatee's being gravely disabled. The conservatee shall retain all rights specified in Section 5325."

§ 5361. "Conservatorship initiated pursuant to this chapter shall automatically terminate one year after the appointment of the conservator by the superior court.…If upon the termination of an initial or a succeeding period of conservatorship the conservator determines that conservatorship is still required, he may petition the superior court for his reappointment as conservator for a succeeding one-year period. The petition must include the opinion of two physicians or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders that the conservatee is still gravely disabled as a result of mental disorder…"

§ 5364. "At any time, the conservatee may petition the superior court for a rehearing as to his status as a conservatee. However, after the filing of the first petition for rehearing pursuant to this section, no further petition for rehearing shall be submitted for a period of six months."

27.    Other.

California’s system for assisted treatment is as complex as it is ineffective. The multitudes of judicial checkpoints that must be surmounted are redundant and wasteful. When treatment is sought via a petition, judicial approval is required to even obtain an initial evaluation. In almost all other states, a person may refuse to be evaluated, yet still be put under observation and treatment based on his own actions and the opinions of medical professionals. The reason for multiple judicial paths for those dangerous to others, suicidal and gravely depraved is unclear and understandably unique. Judicial discretion in treatment placement and period length combined with the statutory obligation to release substantially recovered involuntary patients and a committee’s right to demand judicial review of his mandated care already provide overlapping protections against inordinately long treatment terms. To offer conservatorship as an option for the long-term care of gravely disabled individuals with available caregivers is understandable. To make it the sole means of extended treatment for those suffering from mental illness, unless they are proven an active threat to others, is incomprehensible. California’s system cries for a major overhaul or, ideally, a replacement. Even if not to provide more treatment, then to maintain existing levels at greatly reduced costs.

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