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LPS REFORM TASK FORCE STEERING COMMITTEE

Elizabeth Galton, MD co-chair                  Carla Jacobs, co-chair
Gil Abdalian, MFCC, CRC                        Herb Barr
Howard Black                                          Hadassa Gilbert, JD
Randall Hagar                                         June Husted, PhD
Brian Jacobs                                           Barry Perrou, PsyD
Steven Ruben, JD                                    Amarjit Kaur Puar, LCSW
Roger Shock, MD                                    Barbara Silver, MD
Edward Titus, MD                                    Bernie Zuber

Contributing Writers

Gil Abdalian, MFCC, CRC                        Christopher Amenson, PhD
Lori Altshuler, MD                                    Elizabeth Galton, MD
June Husted, PhD                                    Carla Jacobs
Rosa Kaplan, DSW                                  Alex Kopelowicz, MD
H. Richard Lamb, MD                               Robert P. Liberman, MD
Stephen R. Marder, MD                            Dru Ann McCain
Rod Shaner, MD                                      Barbara Silver, MD
Jonathan Stanley, JD                               Paul Stavis, JD
David Stone, MD

With many thanks to all the other members and supporters of the LPS Reform Task Force as well as those who contributed financially to the printing of this report. Especial thanks to José Luis Quilez, cover designer; Daniel G. Amen, MD, for the use of the SPECT imaging slides; the staff of the Southern California Psychiatric Society and the California Psychiatric Association for their constant support over the three years the Task Force met; and Beth Howard and Diane Schroeder for their editing, proofing and typing.

2^nd Printing
March 1999
Published by: The LPS Reform Task Force
203 Argonne Ave., B104
Long Beach, CA 90803
562-438-4174

February, 1999

Introduction Mental illnesses, such as schizophrenia, bipolar disorder, obsessive compulsive disorder, and clinical depression, are neurobiological diseases of the brain. Recovery is very possible. Like most medical disorders, the earlier that treatment is initiated the better the prognosis. When the disease has progressed, a period of rehabilitation, social and vocational, may have to be completed to achieve the maximum recovery. With newer medications – and the new medications that are hoped for – people with mental illness experience fewer symptoms and fewer side effects. Thus, the next generation of people with mental illness may need to recover only from the illness and not both from the illness and the effects of the illness on their life circumstances.

One of the difficulties in providing continuous treatment in the community is that since these illnesses are brain disorders that affect the ill person’s reasoning, some individuals do not recognize that they are ill or that the symptoms of their condition will respond to medication. Therefore, they do not seek treatment. If hospitalized, they may be unable or unwilling to comply with treatment plans after discharge. When this occurs, the person may require involuntary treatment to protect their lives and avoid tragic social and personal consequences.

The current California law regarding involuntary treatment for mental illness -- the Lanterman, Petris, Short Act (LPS Act) -- was written 30 years ago before scientific knowledge advanced recognizing mental illness as a physical disorder of the brain. Its purpose was to depopulate state hospitals. It was not full realized at the time of its enactment the structure and support some people with mental illness would require to successfully participate in community life. Furthermore, over the years the act has been piecemeal amended to make it one of the most adversarial, costly and difficult to administer involuntary treatment systems in the United States. Lack of clear definition and common misinterpretation of its provisions have caused inconsistent application from county to county.

The law must be revised to incorporate modern scientific knowledge regarding the nature and treatment of mental illness in the community and to streamline its efficiency in today’s managed care environment.

The Process In 1995, the leadership of two organizations, the Los Angeles County Affiliates of the National Alliance for the Mentally Ill (NAMI) and the Southern California Psychiatric Society, agreed to put together a task force to explore a growing awareness of the difficulty to convey needed treatment with any consistency to people so impaired by mental illness that they required involuntary help. The group was first known as the "LPS Task Force" and later as the "LPS Reform Task Force." Early on it was decided to be very inclusive in our membership: anyone who wished to work on this problem was welcomed. We invited people we thought might be interested, others came because they had heard about our group. Our membership included, in addition to Alliance members and psychiatrists, law enforcement officers, psychologists, attorneys, nurses, the director of a conditional release program, mental health consumers, the head of an IMD, social workers and others. Minutes and meeting announcements were mailed out monthly to the growing list of attendees and perspective attendees.

It is important to understand the diverse backgrounds of the attendees. Some came from the point of view of having tried unsuccessfully to get treatment for a family member; others from the frustration of having tried unsuccessfully to provide such treatment. Still others felt strongly that a system which produced so much clearly evident suffering was wrong. Some had recovered from mental illness, but were frustrated at how long it had taken to get to that point. What all had in common was a sense that it was the California laws which had contributed to the tragedy of homelessness and criminalization of people with mental illness caused by lack of needed treatment.

Monthly meetings were held. We obtained the equivalent laws from all 50 states and read much literature on the subject of involuntary commitment. Discussions took place on a wide range of subjects from the newest scientific knowledge regarding brain function to criminal justice interaction to definitions of mental illness to effective methods of rehabilitation. Many professional people and organizations advised us and provided us with the educational structure necessary to undertake the project. We particularly would like to thank Dr. Stephen Marder; Dr. Robert Liberman, Dr. H.R. Lamb, the American Psychiatric Association Council on Psychiatry and Law and the Treatment Advocacy Center and as well as our guest speakers: David Meyer, JD, on commitment law; Dr. David Stone, on the results of an outcome study on patients impacted by the LPS procedures; and Gloria Nabrit, M.P.A., who spoke to us about Medi-Cal and financial considerations.

During the time of our meetings, on August 6, 1998, Los Angeles County

The Recommendations     This report includes recommendations of revision to the LPS Act that are the results of three years of study. In addition to the recommendations, briefing papers have been prepared on the major mental illnesses, medication advances, the consequences of lack of treatment, the current legal system, treatment issues and a history of the implementation of the LPS Act itself. The focus of this report is the involuntary treatment law as it pertains to adults with severe persistent mental illness. There are also provisions in the codes for involuntary treatment of juveniles with mental illness and people impaired by chronic alcoholism, but those populations and procedures are beyond the scope of our current study.

With all the work that this committee has done to suggest overdue corrections in our commitment laws, it must be recognized that reform will be for naught unless the State of California commits to adequate funding to provide treatment for people with severe mental illness. We have a choice: we can shut our eyes to the sight of tragedy or we can make up our minds to give people with mental illness a community structure of compassionate care.

TABLE OF CONTENTS

Executive Summary
Table of Contents
Recommendations
  Introduction
  Recommendation 1: Definition of Mental Illness
  Recommendation 2: Criteria for Treatment
  Recommendation 3: Super Gallinot Probable Cause Hearing
  Recommendation 4. Community Assisted Treatment
  Recommendation 5. Length of Certification
  Recommendation 6: Conservatorships
  Recommendation 7: Commitment Based on Demonstrated Danger
  Recommendation 8: Psychiatric History
  Recommendation 9: Emergency Response
  Recommendation 10: Psychiatric Mobile Response Teams
  Recommendation 11: Uniform Standards for Voluntary and Involuntary Hospitalization
  Recommendation 12: Funding
  Schematic of Existing System
  Schematic of Proposed System
History of LPS – Carla Jacobs
  Overview
  Extramural Care Program
  Short Doyle Programs
  History of Civil Commitment, Paul F. Stavis, MD
  Continuum Theory
  The Dilemma Report
  Lanterman Petris Short Act
  A New Dilemma
  Revolving Door
The Current Legal System
  Overview
  Specific Provisions of LPS
  The Current System
  Informal Due Process
  Gallinot Hearing - Probable Cause
  Writ Challenges – Gallinot Hearing
  Riese Hearings- Medication
  Writ Challenges – Medication Hearing
  Conservatorships
  Commitment for Demonstrated Danger
  Outpatient Committal
  Summary - Jonathan Stanley, Esq.
  Therapeutic Jurisprudence: The Impact of LPS On Recovery - David Stone, MD
What Is Mental Illness?
  Overview
  Schizophrenia - Stephen Marder, MD
  Major Depressive Unipolar Disorder - Elizabeth Galton, MD
  Bipolar Disorder – Manic Depression - Lori Altshuler, MD
  Obsessive Compulsive Disorder (OCD) - Barbara Silver, MD
  Anorexia Nervosa and Bulimia Nervosa - Barbara Silver, MD
  A Consumer's View of Mental Illness - Dru Ann McCain
  Is Mental Illness Treatable?
The Consequences of Lack of Treatment
  Overview
  Suicide
  Substance Abuse
  Violence
  Victimization
  Homelessness
  Criminalization
  Early Death and Other Physical Health Costs - Barbara Silver, MD
  AIDS/HIV
  Family Toll - Christopher Amenson, PhD
Treatment Issues
  Overview
  Early Intervention - Alex Kopelowicz, MD
  Barrier to Treatment: Insight - June Husted, PhD
  Medication - Stephen Marder, MD
  Medication Compliance
  In-patient Mental Health Services – Rosa Kaplan, D.S.W.
  Psychiatric Rehabilitation - Robert P. Liberman, MD
  Structure: The Missing Component in Community Treatment - H. Richard Lamb
  Community Assisted Treatment - Jonathan Stanley, JD
  Assertive Community Treatment - Gil Abdalian, MS, MBA, MFCC, CRC
  Ulysses Contract Advance Directives – Carla Jacobs
  Emergency Mental Health Mobile Teams - Rod Shaner, MD
  LPS Reform and Patient Rights - Rod Shaner, MD
Addendum - "Mental Health laws: Is Reform Overdue" Hearing: Los Angeles County Arboretum, August 6, 1998

 

Recommendations

Introduction

Treatment voluntarily embraced is always preferable to treatment given involuntarily. The goal of involuntary psychiatric services should be the provision of a caring environment where medical treatment, leading to cognitive improvement, is combined with dignified and respectful therapeutic conditions to help the patient accept and continue needed treatment willingly. Before any involuntary services are provided, the patient should be encouraged to consider those services on a voluntary basis. To be sure, mental illness is such that even when services are accessible, acceptable, and of high caliber, there will be individuals who need to be provided treatment involuntarily and given the community assistance of mandated follow-up care. The current system for providing involuntary treatment is incompatible with newer scientific knowledge regarding the fluctuating degrees of cognitive and mentation deficits caused by brain dysfunction in mental illness. Moreover, piecemeal additions to the statutes addressing involuntary treatment, as well as common practice misinterpretation of the statute over the past thirty years, have made the system cumbersome and adversarial.

Recommendation 1:   Definition of Mental Illness

Discussion: Mental health and mental disease are concepts of great importance to the twentieth century legislator. The content and meaning of these terms are also matters of concern to judges and attorneys and treating professionals. The Continuum Theory of the 50s and 60s, which postulated that mental illness was the far extreme of a degeneration from a state of mental health, contributed greatly to the debate. Today, the debate is over: mental health and mental illness are not part of a continuum. Mental illnesses, such as schizophrenia, bipolar disorder, OCD, are brain-based biological diseases which impact the cognitive and affective functions of their victims’ brains. They are as medical in nature as Alzheimer’s, Multiple Sclerosis and Parkinson’s disease.

Recommendation 2:  Criteria for Treatment

Discussion: A person may be involuntarily treated only if that person meets statutory criteria. Current California law emphasized deinstitutionalization of people from long term, state- run, mental facilities. Today, as the LPS proponents proposed, state institutions are nearly a thing of the past. As of January 6, 1999, California state hospitals had a total patient population of 3943 of which only 900 patients were on civil commitments. The remaining 3043 were on a variety of forensic commitments. (Source California State Department of Mental Health).

No one advocates a return to unnecessary long-term placement; our dilemma is how to provide treatment to people who do not have the medical capacity to accept or access it themselves, but who live in an open community environment.

Recommendation 3:  Super Gallinot Probable Cause Hearing

Discussion: The right of people with mental illness to refuse antipsychotic medication while involuntarily hospitalized is based on the belief that that person has the capacity to make an informed decision. A person with mental illness who has the insight necessary to recognize he/she has a mental illness which may respond to medical treatment, who has the consistent judgement necessary to weigh the risks and benefits of treatment as well as appreciate the possible consequences of refusing treatment, and chooses to refuse treatment, must be granted that right as well as responsibility for the consequences of his competent choice. Indeed, a person with this cognitive capacity should not be involuntarily hospitalized at all.

The principle governing a person with mental illness’ right to participate in every step of their treatment path is sound. In responding to a court case known as Riese vs. St. Mary’s (1987, 209 C.A.3d 1303), the legislature attempted to codify this principle into statute by allowing an involuntary patient to refuse medication short of a quasi-judicial finding of his/her incompetency to refuse. The application of the statute has turned the question of an involuntary patient’s right to refuse medication into an administrative nightmare as well as making treatment more adversarial than therapeutic: the doctor can be fighting the patient’s lawyer in front of the patient with whom he is still expected to build a trusting relationship.

Furthermore, since the decision to allow involuntary medication is made separately and in a different hearing than the probable cause hearing -- and then only at the hospital’s request -- a person who rightfully has the capacity to make competent decisions regarding medication may be detained involuntarily without treatment if the hospital does not apply for the hearing. This is a serious abridgement of that patient’s civil rights. Treatment and detention should not be considered a separate issue: to solely detain a person for whom treatment is available without providing him/her with that treatment deprives the individual of more rights than a decision requiring medication. Unable to provide treatment, hospitals become merely institutions of social control.

Recommendation: During the initial 72-hour period for evaluation and treatment, the treating physician should be required to evaluate whether or not the patient who is refusing medication has the medical capacity to do so. If the patient has previously signed a Ulysses Contract/Advance Directive assigning substitute decision making for treatment to a professional or family member of choice in the event that his or her judgement becomes impaired, and a copy of that directive has been provided to the treatment facility, medication will be administered only under the terms of the Ulysses Contract unless the person is imminently dangerous to self or others. If the person has not assigned a substitute decision-maker through a Ulysses Contract/Advance Directive, and in the treating physician’s opinion the patient does not have the capacity to make medication decisions, would benefit with medication, and would most likely deteriorate further without medication, medication may be administered. Before any administration of medication, the treating clinician will make reasonable attempts to obtain the patient’s agreement. Treating staff should be sensitive to all input given by the patient or his/her family regarding complaints of side effects, previous medications used, or problems with the prescribed medication.

Both issues--detention and capacity to refuse medication -- should be reviewed through a "Super Gallinot" probable cause hearing. The hearing should be nonadversarial and automatic, utilizing the same standards of proof and procedures of the current "Gallinot" hearing. The statute should be clear to specify that determination of capacity to refuse medication should consider more than the patient’s ability to convey information about side effects of medication. The capacity determination should consider whether the person has recognition of their illness as well as the consistent judgment to weigh the benefits and detriments of medication as well as the consequences of refusal. Subsequent certification hearings and conservatorship hearings should again consider the issue of medical capacity to make an informed consent, if the patient indicates he/she wishes to change or discontinue his medication against the treating physician’s advice. The patient may appeal the certification decision through a one writ entitlement which may be filed any time during the certification period. That writ can address the validity of the detention and/or the medication refusal capacity of the individual. The facility should also have a right to appeal to the Superior Court in the event the certification hearing determines the patient has met the criteria necessary for certification, but has the capacity to refuse medication and the facility and the treating clinician disagree.

Recommendation 4:  Community Assisted Treatment

Discussion: Many people with mental illness can be temporarily stabilized during a relatively brief period in the hospital, but have not yet reached the level of recovery which allows them to adequately function in the community unless they receive considerable support and supervision. When such support and supervision is not provided, these people revolve through repeated hospitalizations, homelessness and jailings. "Community Assisted Treatment" allows the option of discharging a person from a restrictive, expensive inpatient setting to a lesser restrictive environment without disrupting the person’s continuity of treatment and recovery. Community Assisted Treatment is less restrictive and more favorable to some patients than today’s conservatorship laws as it allows a voluntary decision by the patient to agree to participate in the provisions of a mutually decided upon community treatment plan overseen by a substitute decision maker, as well as an agreement by the community to provide for the person the services necessary to develop his/her stable recovery. Clear procedures for arranging mandated outpatient treatment should be in place.

Recommendation: An "aftercare" program, Community Assisted Treatment, be legislatively required for people who are stable enough to leave the hospital with adequate community support and supervision but who have in the past failed to thrive evidenced by not maintaining in treatment services, housing or medication compliance/efficacy when previously released from involuntary hospitalization. The standards for placement in the program should be (1) the patient has received due process through the probable cause hearing that he/she meets the criteria for involuntary hospitalization because of mental illness; (2) the treating physician believes, at any time during the certification period, the patient is sufficiently stable to benefit from community placement, but needs continuing treatment and care under supervised conditions to maintain and improve his/her recovery; (3) the patient agrees, and desires to participate in such a program and is willing to be placed on "on leave" status from his/her current involuntary hold certification and be released from the hospital to a lower level of care; (4) The patient is not an immediate harm to self or others; (5) the community mental health system (county or private) agrees with the patient and the doctor’s decision, and agrees to provide services necessary to the patient as directed by the treatment plan including, but not limited to, housing placement, support treatment services, medication supervision for compliance, efficacy, and side effects, and application for any necessary fiscal supports and entitlements. An aftercare expediter responsible for helping to implement and supervise the after care plan will be appointed to act as a substitute decision-maker for the patient and named in the treatment plan to which the patient has agreed. The treatment plan will be filed with and ordered by the county Superior Court. In the event, the patient does not or cannot abide by the terms of the agreed upon treatment plan, including medication compliance or efficacy, and the person is in danger of deteriorating from his released level of functioning, or if in the expediter’s view the patient will best benefit from re-hospitalization, the expediter may cause the person to be returned to a more intensive level of treatment for the remaining days of the underlying involuntary treatment certification. If the returned "on leave" patient is not expected to recovery sufficiently during the remaining period of time of their previously certified hold, the treating physician may apply for a new certification and subsequent conservatorship. The "on-leave" status may be renewed annually upon agreement by all parties and re-order by the court. If the "on leave" patient has not required treatment in an intensive setting for a one year period from their initial certification date, he/she may be unconditionally discharged from the ‘on leave’ status.

Recommendation 5:   Length of Certification

Discussion: One reason the LPS Act allowed for tiered, short periods of hold for involuntary treatment is that the original statute eliminated initial due process previously fulfilled through the commitment court. The thought was that if a person was unnecessarily detained, that detention would be relatively short and not a serious abridgement of the individual’s liberty. In 1978, the Gallinot case and subsequent legislation established an upfront due process hearing at the end of 72 hours; however, the tiered lengths for certifications based on the type of behavioral hold (gravely disabled, dangerous to self or others) remained. The multi-layered due process reviews, lengths of treatment and notice filing requirements have been referred to as "Byzantine." If not rising to the level of Byzantine, the administrative nightmare is at least cumbersome, nontherapeutic, administratively costly and constitutionally unnecessarily complex making California’s procedure for involuntary treatment one of the most complex systems in the United States. Medically there is no reason for different periods of times for treatment of people who are "dangerous to self or others" or "gravely disabled" or the new criteria proposed in this paper. These criteria are nothing more than descriptions of behavioral byproducts of symptoms of the mental illnesses and have no relevancy to the amount of time needed to stabilize a person in treatment.

Today these tiered lengths of stay are empty gestures geared at preventing inappropriate long term hospitalization in state hospitals. State hospitals are virtually a thing of the past for civil patients. There is now an initial up front due process in the Gallinot hearing. By law, the physician is required to discharge any patient who no longer meets the criteria for hospitalization. Additionally, third party payers act as a fiscal incentive to rapid release through "medical necessity" definitions. Furthermore, the patient is entitled to a writ to appeal his treatment and detention to the Superior Court. Indeed the tiered system of differing tracts for certification can be nontherapeutic to the recovering patient who is taken from treatment many times and placed into an adversarial position with the treating clinician who must testify "against" the patient with whom he/she is attempting to develop a good doctor/patient relationship.

Recommendation 6:   Conservatorships

Discussion: Currently conservatorships are only available to those people with mental illness who achieve a behavioral byproduct of their illness that results in grave disability. As a result, people who remain potentially suicidal, dangerous to self or potentially dangerous to others are simply released with no guarantee of continuing treatment. It has been said that one is allowed to commit suicide in California after 31 days. Furthermore, California is one of the only states to require a standard of proof for long term civil treatment that is normally restricted to criminal cases: that of "beyond a reasonable doubt." A person with mental illness is not a criminal and should receive needed help and treatment more readily than this. A paralegal system may occur in some California counties where good people trying to do good things make a quantum leap during the conservatorship process from the criteria of "dangerous to self or others" to a finding of "gravely disabled" (as evidenced by ability to provide or utilize food, shelter, and clothing). This is done to facilitate the treatment and supervision allowable by a conservatorship. Manipulation of the law in this manner, however, forces good people to provide less than honest testimony within the judicial system. A simpler and more rational response would be to provide any person who continues to require the treatment, structure and support of a conservatorship that assistance regardless of the criteria under which they were initially detained.

Recommendation: Conservatorships be available for any person who, due to mental illness, continues to fit the criteria for involuntary treatment and is in continuing need of treatment after the initial certification period regardless of the criteria used for the original detention unless that person is a demonstrated danger to others. The standard of proof for a conservatorship should be clear and convincing evidence.

Recommendation 7:  Commitment Based on Demonstrated Danger

Discussion: The only true civil commitment in California occurs under WIC 5300, which allows a person who is a "demonstrated danger to others" to be placed on a 180 day-commitment following an initial 14 day certification for involuntary treatment. This section of the LPS Act is rarely used because it requires that during the hospitalization period or just prior to, the person posed demonstrated danger of inflicting substantial physical harm on others and that the demonstrated danger was based on actual infliction, attempt, or serious threat of harm. Danger of this level rarely occurs in a supervised hospital environment. A person who has been initially held because of danger to others, but has not reached a level of "demonstrated" danger under current law is simply released. (See recommendation regarding conservatorship.) However, even for those few patients who, because to symptoms of their illness, are demonstratedly dangerous, the procedures involved in obtaining a 180-day commitment are so stringent that they may be a barrier to needed treatment and supervision.

The person detained under WIC 5300 must be brought to trial within 10 days unless his public defender applies for an extension, granted a jury trial (if so desired) and found to be a demonstrated danger beyond a reasonable doubt. During the 180 days, which is renewable, the person may be placed in a locked psychiatric facility or placed on outpatient commital status, if the professional in charge of the facility and the county mental health director advise the court that the person will no longer be dangerous, will benefit from outpatient status, and will participate in an appropriate program of supervision and treatment. The limit of commitment -- 180 days -- may not allow sufficient time for inhospital stabilization and successful reintegration to the community through supervised outpatient committal.

Recommendation 8:  Psychiatric History

Discussion  Mental illness does not exist in a vacuum of time. The severity of an individual’s symptoms wax and wane, sometimes hour by hour or day by day. It is not uncommon for a person with mental illness to "present well" at a legal hearing with minimal displayed psychiatric symptoms and rational plans for self care because that person has had a few days of medication in the hospital prior to the hearing or has been "coached" as to appropriate responses. Yet, upon release, the person historically has gone off medication, drifted into homelessness or repeated hospitalizations.

It is also not uncommon for an individual to minimize or fail to disclose the severity of his/her symptoms during the actual hearing. This is especially true of the individual who is paranoid and cautious in disclosing information to strangers. While nothing in the LPS Act precludes a hearing officer or judge from considering the past history of an individual’s illness, common interpretation by some hearing officers is that they must only consider the person’s presentation "at that moment in time." Without reasonable consideration of the person’s psychiatric history, the individual may be inappropriately and prematurely released without sufficient stabilization. A grave disservice is thus done to the person who requires a period of stability in order to gain recovery from his/her disease.

Recommendation 9:  Emergency Response

Discussion: Emergency response to mental health crisis varies throughout the state in implementation and quality of content. Some counties have mobile psychiatric response teams; others may rely heavily on private teams. In many cases, law enforcement is the only availability when a person is in medical crisis due to their illness and yet law enforcement may be least able to appropriately intervene because they are not aware of alternatives to hospitalization and lack sufficient training to evaluate components of the emergency situation that are related to mental illness.

Recommendation 10:   Psychiatric Mobile Response Teams (PMRT)

Recommendation 11:  Uniform Standards for Voluntary and Involuntary Hospitalization

Discussion: There is general consensus that there are widespread differences among counties and providers in their implementation of various provisions of the LPS Act. This is a reflection of the vagueness of some of the legal provisions and lack of definition within the statute and the distorting impact of variable resource dedication. As a result flexibility in interpretation has evolved. Historically the concerns have been differences in the interpretation of the criteria, demarcation between substance abuse and underlying mental illness and the responsibility for treatment in emergency situations, and the utilization of conservatorships for people who are not gravely disabled but clearly in need of continuing treatment and supervision as well as uniform training and certification standards for personnel who are routinely involved in the implementation of LPS. (Lewin/ICF, Evaluation of Proposed Changes to California’s Lanterman Petris Short Act, June 1988) These historic concerns are addressed and rectified in previous recommendations in this report.

Recommendation: California fund the Adult System of Care with components to assure prioritization of services to the most seriously disabled mentally ill adults whether services are needed by them on an involuntary or voluntary basis. The recognition that some people, due to the severity of their illness, will require treatment involuntarily must be incorporated into the Adult System of Care legislation and recognized as a form of community assistance.

History of LPS - Carla Jacobs

Overview

It was an era of well-intended reform -- and much social debate about the nature of mental illness -- when in 1966, the Lanterman Petris Short Act (LPS Act) was first envisioned. The 100-year-old reform of Dorthea Dix, born from a vision of peaceful asylum in hospitals rather than a disgraceful existence in jails, had become threadbare. In many cases, the state mental hospitals themselves had become overcrowded and dingy warehouses. Psychiatric activists and their allies started promoting new policies designed to provide care and treatment in the community rather than in mental asylums. The generous spirit of the Great Society saw passage of various entitlement programs which would help states pay for treatment, but only if services were provided in the community, or on a short-term basis in general hospitals. The Federal government was committed to the historical idea that states are responsible for long-term care.¹

Extramural Care Program

In 1939, Department of Mental Health Director Dr. Aron Rosanoff initiated an "extramural care program" to "break down the walls between the hospital and the community" and to help patients to re-integrate into the community. Patients could be either unconditionally discharged from in-patient hospitalization or placed "on leave," if it seemed that they might require help and supervision during community re-entry. The Division of Adult Protective Social Services (known as the Bureau of Social Work prior to July 1, 1966) helped patients "on leave" to find employment and to obtain welfare assistance and housing. Convalescent leave psychiatrists, working in regional bureau offices, provided consultation and dispensed medication. Workers conducted "home visits" with former patients in order to make sure that they were managing satisfactorily on their own. In 1966, approximately 20,000 people were "on leave" from state hospitals.⁴

Dr. Rosanoff's extramural care program was credited with having forestalled a far worse wartime deterioration of state hospitals than that which actually occurred. But, during the 1950s, California's population spiraled; state hospital populations grew exponentially, overtaxing existing facilities. In some hospitals, two patients shared a single bed and surplus army cots filled every nook and cranny. Poorly paid nursing staff were wont to keep up with the vast numbers of patients. Community-based services were seen as the solution for patients who might otherwise have been sent to overcrowded, and, generally, remote, hospitals. It was also thought that the provision of community-based services might reduce the need for capitol outlay for construction and reduce the expense of hospital maintenance and staffing.

Short Doyle Programs

In 1958, a community-based mental health system was established under the Short Doyle Act, a state-county matching program initially funded on a 50-50 cost sharing basis. In 1963, the matching formula was revised to the counties' advantage to 75-25 for newly-initiated programs. During 1966-67, Short Doyle programs were authorized to spend $34 million in public money, two-thirds of which came from the state and one-third of which was provided by counties. Short Doyle programs were controlled, for the most part, by counties. (Exceptions included three programs -- one in Berkeley, one in San Jose, and one in the Greater Los Angeles area). In 1966, 41 Short Doyle programs operated in 38 of California's 58 counties, representing 96 percent of the state's total population.

Over half of these programs included both inpatient and outpatient services. In 1966, approximately 115,000 people received services from Short Doyle programs, closing the year with a caseload of nearly 33,000 people. Ten percent of Short Doyle patients were inpatients in community hospitals. The Short Doyle system, however, was not acting as a deterrent to the state hospital system; during that same year, state hospitals admitted 28,834 patients, 60% of which were first-time inpatients, while the balance were re-admits or court-ordered admissions.⁵

The words of the Declaration of Independence and the Preamble of the United States Constitution expressly incorporate these principles in the fabric of our fundamental law.

Continuum Theory

The failure of the Short Doyle system to deter entry to state hospitals can be attributed, in part, to a post war shift in psychiatric thinking toward a psychodynamic and psychoanalytical model that emphasized life experience and the role of socioenvironmental factors as key in the development of mental illness. This is known as the "Continuum Theory." The Continuum Theory postulated that mental illness was the result of social degeneration and that if social and environmental conditions were ameliorated before degeneration, mental illness could be prevented.⁶

People in Short Doyle programs, generally of higher socioeconomic status than state hospital patients, were thought to have "problems in living." Community mental health care providers, guided by the Continuum Theory, sought to prevent mental illness by intervening in such problems while the individuals were still "mentally healthy." Less generously explained, Short Doyle programs were notorious for accepting "easy" patients; people who were poor, black or psychotic generally went directly to state hospitals.⁷ Ironically, the community mental health care system is still accused by many as "putting away" more difficult patients -- this time in jails and prisons.

The Dilemma Report

By 1966, state appropriations for state hospitals totaled $111.5 million. Overall the appropriations for the Department of Mental Health was $190 million with a portion going to facilities and services under its auspices and the Short Doyle matching funds. The state hospital system was almost completely financed by the State General Fund. The Department was second only to the University system in terms of outlay and staffing.⁸

The dilemma posed in California was how to stem entry into the state hospital by encouraging the community system to accept more patients, hopefully improving quality of care while allowing state expense to be alleviated by the newly available federal funds. Jerome Waldie, democratic majority leader of the California Assembly, and his chief aide, Art Bolton, started searching for a conduit. Earlier that year, a Special Fact Finding Committee on the Judiciary had produced a lengthy report concluding that while commitment laws were in scattered disarray throughout the Welfare and Institutions Code, existing legislation ensured sound medical practice and adequately protected the fundamental legal rights of patients.⁹ Waldie and Bolton thought differently. In January 1965 the California Medical Association had published a report on conditions within state hospitals. The report found that without adequate staff, equipment, and space, most state hospitals were unable to provide state-of-the-art treatment. Waldie and Bolton recognized that the linchpin to the entry of the state hospital system was through the commitment process.¹⁰

To focus public and legislative interest on mental illness is a daunting task, but a necessary one in order for major legislative reform to take place. The Assembly Subcommittee on Mental Health, which Waldie chaired, set out to develop a working knowledge of contemporary thinking about mental illness and commitment. They reviewed the legal and scientific mental health research literature available to them at that time and conducted public hearings. The Subcommittee contracted with a private research firm, Social Psychiatry Research Associates of San Francisco, which defined itself as "researchers engaged in a series of social surveys generally focused on the community careers of people labeled as deviant." The mandate of the research firm was to assist in designing and completing a survey of the courts and to process and analyze the data collected. The findings were then synthesized into a document known as "The Dilemma Report."^{11 12}

The research leader was Dorothy Miller, an adherent of Erving Goffman who postulated a phenomenological argument that denied mental illness as anything more than a condition caused by institutionalization. Goffman's theories permeated the Dilemma Report, just as they had flooded popular imagination through Ken Kesey's One Flew over the Cuckoo's Nest.

Another popular sociologist used as reference for the investigation was Thomas Scheff, a professor of sociology at the University of California at Santa Barbara, who esoterically promulgated a theory that while many people might exhibit symptoms of mental illness, these people are no more than residual rule breakers and mental illness only exists as a label -- or a definition -- by group culture for its "social losers." He later became known as the "father of the labeling theory."

The sociological confusion surrounding the nature of mental illness in the 1960s was well stated in The Dilemma Report which said, "The term 'mental illness' is a nonscientific, generalized popular label used to describe a wide range of behavior which is considered 'peculiar' or 'sick' or objectionable . . . it does not reveal the cause of any individual's difficulty. . . . It is also evident that when a person's behavior is labeled 'mental illness,' those who do the labeling are guided by their own concepts of what is normal and abnormal. Madness, like beauty, may exist in the eye of the beholder. . . .Despite all these uncertainties the general public, its elected representatives and civil servants have perpetuated the commitment court and mental hospital system as a means of disposing of a variety of disagreeable social problems."^{13 14}

An Emergency Services Unit (ESU), envisioned as a replacement to the former commitment process, was proposed as a place where people could come, both voluntarily or "through the help of others," for evaluation and services. Another sociological theory popular at the time was that mental illness was a reflection of poverty biased by middle class standards which could be "cured" by financial aid. The ESU recipient would therefore be given a wide choice of community services while the ESU staff investigated and clarified the financial resources available in each case.¹⁶ Additionally, the ESU would provide short-term suicide prevention counseling and other such emergency medical, legal or social services the authors believed would ameliorate crises situations. All ESU services would be voluntary, subject to termination by the individual at any time.¹⁷

A one-day commitment court survey was conducted for the Mental Health Sub-committee by volunteers from the California Mental Health Association. Surveyors reported that only 8 percent of all people appearing before the court on that day appeared to be "dangerous to others" while 18 percent constituted some manner of "danger to themselves." The others were committed because the court found them in "need for supervision, treatment, care, or restraint."¹⁸

It was concluded that few people would require help on a nonvoluntary basis and that if community services were offered, they would be accepted. The paper acknowledged that there would be some exceptional emergency cases where individuals might be too disabled or uncontrolled to participate in planning for their own needs.¹⁹ For these people, the plan proposed non-voluntary crisis placement for a maximum of 14 days. Certification for such placement required a written affirmation by a physician, after ESU staff agreed that all other alternatives had been exhausted, that: (1) the person was gravely disabled; or (2) he\she was exhibiting destructive behavior and appeared to be an immediate threat to other people; and (3) the individual had refused voluntary treatment. There would be no due process, other than the ESU's review for this period of time, unless the individual requested a court hearing. In spite of this certification, however, the patient would be allowed to leave after 14 days if he/she did not wish to remain for voluntary treatment. If after 14 days the person remained "gravely disabled," as evidenced by his/her inability to provide food, shelter, or clothing, guardianship could then be initiated through the courts. The "dangerous" would simply be released; to keep them longer, in the minds of the authors, was simply a case of preventative jailing.

The Dilemma Report also suggested that suicidal patients should not be involuntarily treated, but should, instead, be given preventative counseling at the ESU. The Report states: "Even if the state were to hospitalize suicidal patients for their own protection, there is no evidence that it is possible to prevent people from killing themselves if they are determined to do so." The report noted that even "on leave" patients had a ten times greater suicide rate than that of the normal population and that trying to prevent suicide, when attempting to teach responsibility to the patient, might be the worse possible therapy. Suicide was not, after all, a violation of California law.²⁰

The Dilemma Report was released on November, 28 1966. Its draft legislation got off to a flowery start, only to be met with the usual support/opposition based on ideologies and turf wars. At a early public hearing, Dr. Warren Vaughn set the tone of both opposition and support to the bill when he praised its emphasis on community services, but gave qualm to the limitation of seventeen days (three days of observation and fourteen days commitment) for involuntary commitment. He strongly recommended that suicidal people also be included for potential nonvoluntary treatment, and that the definition of gravely disabled be broadened.

Maurice Rodgers, spokesman for the California State Psychological Association, called the plan the "Magna Carta of the Mentally Ill," while the American Civil Liberties Union (ACLU), officially in support of the legislation, raised objection to the fact that the patient had to personally petition for a due process hearing at the initial point in the commitment. (The current probable cause hearing at 72 hours was legislated after a court case in 1978, known as Doe v. Gallinot.)

Some Short Doyle administrators objected to the ESU which would have been funded through MediCal. They viewed the ESU as a potentially competing community mental health system to their own, which was limited by the amount of match given by the counties. The bill was subsequently redrafted to make it difficult for the county supervisors to bypass Short-Doyle directors for evaluation and treatment services. The California State Association of Counties (CSAC) thought the bill would add extra financial burden on the counties.²²

Frank Lanterman himself noted the inadvisability of releasing people who were potentially dangerous after the 14 days hold.

Perhaps the most colorful support came from ninety-one year old Mr. Simpson who said he had once spent seven months in Agnews State Hospital as a "political prisoner." Raising a paperback copy of Ken Kesey's One Flew over the Cuckoo’s Nest, he said it told the truth about mental hospitals.

The commitment bill was amended nearly 300 times, and was as good as dead during the legislative process until Frank Lanterman refused to allow another bill out of a committee he chaired unless the commitment bill was amended into it. The bill which accepted the amendment was a popular piece of legislation authored by Senator Short, which called for an increase in state financial participation in the Short Doyle system to a 90/10 ratio. As a result the new commitment scheme became known as Lanterman, Petris, Short Act (LPS).

LPS was signed into law in 1967 by Governor Ronald Reagan, the same year in which his budget act abolished 1700 hospital staff positions and closed several of the state-operated aftercare facilities. Reagan promised to eliminate even more hospitals if the patient population continued to decline. Year-end population counts for the state hospitals had been declining by approximately 2000 people per year since 1960. The LPS Act became effective January 1, 1969 giving the system a year to reconstitute itself to the new procedures.²³

The LPS Act was a seminal doctrine. Its goal was the end of inappropriate lifetime commitment for people with mental illness. The memorialization of this doctrine remains excellent. It firmly established in the mind of the state and the public that people with mental illness are entitled to civil rights, nondiscrimination, treatment and community life. However, like Dorthea Dix's good intent when she first proposed state hospitals, implementation of the act has become threadbare.

A New Dilemma

Consensus does not exist on whether most long term placements in state hospitals would have not ceased naturally with the advent of more effective medications and monetary incentives toward community placements.²⁴ An unwritten goal of the LPS Act was to prevent the Short-Doyle community system from "dumping" difficult, seriously mentally ill patients.²⁵ After the statue's passage, the community mental health system reconstituted itself to accommodate additional patients who previously had been placed in hospital because of financial or social dependence and who could accept treatment voluntarily. But, the new stringent behavioral criteria for involuntarily committing a patient to treatment applied to both state and community hospitals. How to handle the serious, hard to reach patients -- who clearly needed treatment but did not fit the new criteria or who recycled through short term stays -- became a community dilemma. For them, there was nowhere to go.²⁶

Revolving Door

By the late 1970s, papers about the "new chronic patient" began to be presented at psychiatric conferences. These individuals were often referred to as "revolving door" and "treatment resistant" patients because of their frequent admissions to, and rapid discharges from, psychiatric hospitals. This generally occurred because these patients failed to follow through with outpatient care recommendations, and suffered relapses.²⁸

Early on Senator Frank Lanterman recognized serious missing links in the system of care he envisioned through the LPS Act, which seemed to contribute to the rising number of patients recycling through short-term hospitalization. He convened a wide-spectrum task force, including law enforcement, defense attorneys, prosecutors, psychiatrists and other treatment professionals. As a result, he introduced a bill in 1974, allowing "outpatient committal" of these patients on parens patriae basis. The bill became subjected to the beliefs of the era which considered any form of commitment by the State for mental illness an undue use of totalitarian control and therefore suspect. The legislation was subsequently amended to allow such proceedings only if the person was an "immediate danger to others," and passed the procedural rigors of the 180-day commitment judicial process. Thus, effectively what was intended as a "safety net" for seriously ill individuals was still unavailable to the "chronic patient" -- who, like the majority of people with mental illness was not dangerous, just very ill.²⁹

California is still experiencing the reality of recycling patients, a costly situation both in terms of human suffering and economic impact. Typically what happens with revolving door patients is that they stabilize during a hospital stay, but only continue their medication and outpatient therapy for a short time after discharge, if at all.³¹ Most relapses in people with mental illness who have been hospitalized occur because of medication noncompliance; noncompliance rates are significantly higher during the first few months after discharge than at any other time.³² Between July 1, 1997 and June 30, 1998, Los Angeles County had a total of 12,208 unduplicated patients who were involuntarily hospitalized. Of this group, 90% were admitted to the hospital only once or twice (9,213 and 1,844 respectively). There were 1,151 patients admitted three or more times -- ranging from 594 people admitted three times to one person who was hospitalized 20 times in that year.³³

The expense of this recidivism is shocking. If the approximate cost was $434 per hospital day, involuntary treatment cost Los Angeles County $86,333,450 for fiscal year 1997-1998. This figure does not include auxiliary costs, such as law enforcement and judicial expenses. The 10% of patients who recycled through the system used 25% of its involuntary hospital budget. Patients who were admitted to involuntary treatment three or more times cost the County $20,695,724.³⁴ Significantly, the average length of stay for those who only had one or two admissions was 11.8 days; those with three or more admissions averaged 7.79 days, just slightly more than the time normally used for the evaluation period and the probable cause hearing.

No study is available indicating how many times these recycling patients have been in jail, or on the streets on their way to rehospitalization. A study by an ad hoc group of psychiatric residents in Los Angeles, however, found that patients with schizophrenia released from nonvoluntary hospitalization by legal hearing because they did not meet the stringent behavioral criteria for involuntary treatment were likely to spend 28 days in jail mental health treatment over the next year. Those who were allowed to remain until medical decision determined release averaged one day in jail.

Over the last 30 years, the number of patients who once might have been in State hospitals, but are now on the streets, or in our jails and prisons, has risen significantly. In 1968, the year before LPS was implemented, the year-end population in State hospitals was 35,739.³⁵ Today, state hospitals are primarily forensic and house fewer than 4,000 mentally ill patients. Between 20,000 and 30,000 people with mental illness are in our jails and prisons. At least an equal number are homeless on the streets.

A significant number of people with mental illness need more structure and support than the community service system currently provides. Instead, they revolve from the hospital, to the streets, and to jail. For them, we have replaced one inadequate system of care -- keeping people institutionalized for long periods of time -- with another inadequate system of care.

The Current Legal System

Overview

In California, mental health professionals acting under authority of a state statute are authorized to make the initial decision regarding a person’s placement, involuntarily, in a treatment facility. This deprivation of civil liberties is limited by a safeguard called "due process." Due process requires that reasonable procedures are taken to protect the individual from undue deprivation. The amount of process -- that is, how many safeguards -- the Constitution requires depends on a balance between an American's interest to be free and the state's interest to promote public health and to protect the safety of its citizens. In temporary civil commitment, due process can become imbalanced between the State's interest and that of civil liberties. California's current system is exemplitive of that imbalance, especially considering that symptoms of mental illness can deprive the individual victim of the free will necessary to enjoy that liberty. In some cases, it appears as if the liberty is given to the psychosis to benefit a philosophy that values esoteric interpretations of liberty over life itself.

Specific Provisions of LPS

The statute regulating the authority of the state is codified in the  Lanterman-Petris-Short Act (LPS). Beginning in the California Welfare and Institutions Code Section 5000, the LPS Act covers a wide range of topics including voluntary and involuntary treatment, patients rights, confidentiality, and conservatorship. The heart of LPS -- the rules that govern involuntary treatment -- is the topic of this discussion.

Under Section 5150 of LPS, only certain individuals may place a person into involuntary hospitalization to initiate the first 72-hour period for evaluation and treatment. These individuals include law enforcement officers, members of the attending staff of an evaluation facility designated by the county, members of a designated mobile crisis team, or other professional persons designated by the county. A person may not be involuntarily hospitalized by family or friends.

Section 5150 of LPS also defines the circumstances under which an adult may be involuntarily placed in a psychiatric hospital designated by the county. There are two requirements for involuntary hospitalization: First that the individual has a mental disorder and second, as a result of that disorder the individual is a danger to self or others or gravely disabled. Gravely disabled is defined as an inability to take care of one's basic needs, such as those for food, clothing or shelter. The law does not define mental disorder nor does the law define what constitutes a danger.

If a person is considered to be a danger to self or others, or gravely disabled due to mental disorder, WIC Section 5150 allows 72 hours of hospitalization in a designated facility for evaluation and treatment. If at any time an individual who is involuntarily hospitalized no longer meets the criteria under LPS, he/she must be released. If at the end of the 72-hour period the person is still dangerous to self or others, or gravely disabled, Section 5250 allows certification for a 14-day period of involuntary hospitalization. Prior to certification, the patient must be given the opportunity to accept treatment on a voluntary basis. If after the initial 14-day certification, the patient continues to be dangerous or gravely disabled, additional extensions may occur, but the extended hospitalization requires stronger showing of dangerousness than the original 14-day certification. Stays beyond the 14-day certification are sometimes referred to as postcertification holds. In the case of the gravely disabled, a temporary conservatorship might be filed to extend the length of stay pending a permanent conservatorship.

After the original 17 days (the initial 72-hour hold and the additional 14-day hold) the length of extended hospitalization depends upon which criteria the involuntary hold is based. Under Section 5260 of the Welfare and Institutions Code, individuals who threaten or attempt to take their own life during the 14-day intensive treatment period may be held for a second 14-day intensive treatment. The criteria for the second 14-day hold requires suicidal behavior (threats are considered behavior) rather than just general dangerousness to self. After the second 14 day certification, if the person remains suicidal, they must be released.

Individuals who pose a demonstrated danger of inflicting substantial physical harm on others may be confined for up to 180 days for further treatment after the initial 14-day period. Proof of danger must be based on actual infliction, attempt, or serious threat of harm during, or just prior to, the initial hold. Rarely are people in California placed on 180-day holds because of the procedures and costs necessary to obtain one. Additionally, danger of this level frequently requires arrest. Thus, unless a person who has been brought in as a danger to others can be "made to fit" the gravely disabled or danger to self criteria due to suicidal behavior, they will be released after 17 days unless showing demonstrated danger.

Finally, a person who is gravely disabled may be certified for an additional 30 days of intensive treatment or placed on a temporary conservatorship. The additional 30-day hold is used in only a few counties. Most often a temporary conservatorship is appointed. The temporary conservator has the authority to authorize an additional 30 days of hospitalization. Following a temporary conservatorship and a full investigation considering conservatorship, a conservatorship for one year may be established by the court. This conservatorship is renewable at the end of each one-year period.

Informal Due Process

Gallinot Hearing - Probable Cause

If, at the end of the 72 hour evaluation, the person who has been detained appears to continue to fulfill the criteria, the person can be placed on a 14 day hold. A certification review hearing is conducted within 4 days of the beginning of the 14 day hold. Also known as a "Gallinot" hearing after the court case which required its legislation (Doe v. Gallinot, 657 F.2d. 1017 (9th Cir. 1981)), this procedure is sometimes referred to as a ‘probable cause’ hearing. It is an automatic hearing and does not have to be applied for by the patient. Certification review hearings are non-judicial proceedings that usually take place at the treatment facility. Either a court-appointed commissioner or referee, or a certification review hearing officer, conducts the hearing. During the hearing the treating psychiatrist or his designee presents information regarding the need for continued hospitalization. The patient is entitled to assistance by an advocate. The patient or his advocate may present evidence and cross-examine opposing witnesses. Additionally the patient may request attendance of any facility staff who participated in or has knowledge of the 14-day certification.

Writ Challenges - Gallinot Hearing

Section 5275 of the Welfare and Institutions Code gives the patient possibility to challenge the Gallinot hearing decision and any additional holds by means of a judicial review known as a writ. A hearing on a writ must be conducted by a judge and held within two days of the request of the patient. In the writ proceedings, the government bears the burden of proof by a standard of preponderance of evidence.

Riese Hearings - Medication

Although Section 5152 was written to provide detention and treatment, currently under California statute medication may not be given an involuntarily hospitalized person who refuses it, except in emergency situations. An emergency is defined in WIC 5008 (m) as a situation in which action to impose treatment over the person’s objection is necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first to gain consent. Thus, a person with mental illness may be involuntarily detained in a hospital for "evaluation" and "treatment", but not receive treatment.

To provide pharmacological treatment for such a patient, the treating physician must petition the court to have the patient declared unable to consent for such treatment. This petition, the Riese petition, can only be filed after the psychiatrist has made repeated efforts to obtain the patient’s consent. After the petition is filed, a "Riese" or capacity hearing is held, the goal being the determination of whether or not the patient has the capacity to consent or refuse the administration of medication. During the hearing, the treating psychiatrist must present evidence to prove the patient’s lack of capacity. The patient is represented by an advocate, who along with the patient, can argue for the patient’s capacity. The court-appointed hearing officer, who must be an attorney, determines the patient’s capacity or lack thereof. If the patient is found to lack capacity to provide informed consent, the patient can be required to take the psychotropic medication prescribed by the treating physician.

Either the patient or the hospital may appeal the hearing decision to Superior Court If an appeal is requested by a physician whose patient is in a private facility, that facility must provide an attorney to be present on the hearing date. County Counsel generally presents cases for appeals requested by physicians in a county facility. A medication capacity hearing remains in effect only for the duration of a specific hold upon which the person is currently detained. A change in legal status necessitates a new medication capacity hearing if the person continues to refuse. Each capacity hearing has a subsequent right to appeal.

Due to the cumbersomeness of the medication hearing procedures, many hospitals and physicians working under near triage conditions in extreme budgetary and time restraints, are wont to call for a medication hearing unless the person is in extremely dire straits.

Thus, the practical application of a good idea -- allowing patients who do have medical capacity to make informed decisions regarding their medication -- becomes a procedural barrier against giving care to those who do not have capacity. At least one study found the average length of stay increased for patients for whom Riese petitions were filed, and restraints and seclusion was needed longer than for other adult inpatients.³⁶ In nearly all the cases where medication hearings were actually filed by the treating physician, the patient was found to lack capacity to refuse the prescribed antipsychotic medications.³⁷ The current application of the Riese hearings have increased the expense to the system while increasing time hospitalized and reducing the therapeutic value of hospitalization to the patient.

Conservatorships

LPS Conservatorships may be sought for patients that are gravely disabled by LPS criteria and are expected to remain so. The LPS Conservatorship provides the Conservator with limited powers over the Conservatee, possibly including the power to place the Conservatee in locked and unlocked psychiatric facilities and to authorize the administration of psychotropic medications. WIC 5358 requires that the Conservator have reasonable cause to believe that hospitalization is necessary before placing the person in a locked unit. "Reasonable cause" must be based on a belief that a change in the Conservatee’s condition poses an immediate and substantial danger to the Conservatee or others.

The LPS Conservatorship application process, which generally begins during a 14 day hold, must be initiated by a professional person in a facility providing intensive treatment. It may not be applied for by a spouse, relative, friend or other nondesignated individual. Once the application is received by the Superior Court, the Court can appoint a Temporary Conservator who begins a 30 day period of investigation. The purpose of investigation is to determine the validity of the application with regard to the grave disability of the patient. During this investigation, the patient may challenge the Temporary Conservatorship through a writ proceeding. At the end of the 30 day investigation or allowed extensions, a hearing is held in Superior Court. The patient, the Temporary Conservator, and a psychiatrist involved in the treatment of the patient must attend the hearing. The patient is represented by a Public Defender. The judge, taking into account the report of the Temporary Conservator, the testimony of the psychiatrist, and the defense against the conservatorship presented by the Public Defender, makes a decision regarding the appointment of a Full Conservator. The 30 day investigation period may be extended if the patient requests a jury trial instead of the hearing. The Full Conservator may be a private party, such as a relative or friend of the patient, or a member of the Public Guardian’s office. If the psychiatrist is unable to appear or does not appear for the hearing, the Conservatorship will not be granted. The Conservatorship remains in place for one year. A conservatee may during any six month period of the conservatorship apply for re-hearing of both the issue or the terms of the conservatorship.

Renewal of the one year Conservatorship can occur. The Conservator must petition the Court for reappointment. A hearing will again be held in Superior Court with the patient represented by the Office of the Public Defender. The Court may require a treating psychiatrist or psychiatrist to appear. If the treatment professional is unable to appear or if the Conservator does not reapply, the Conservatorship may be discontinued. The Conservatee must also appear in court and the conservatorship not be renewed if he fails to appear.

It must be noted that LPS Conservatorships are not available to people who remain a passive danger to self due to inability to provide for medical or physical safety due to mental illness nor are they available to people who remain suicidal or have a past history of danger unless they also fit the criteria of gravely disabled as described in the statute.

Commitment for Demonstrated Danger

A 180-day hold for demonstrably dangerous mentally ill individuals requires a court trial. Furthermore, if the person asks for a jury trial, the trial must be granted within 10 days of that request. During the trial, the patient is entitled to an attorney. The State’s burden of proof equates to that required for a criminal conviction: beyond a reasonable doubt. Because of the extreme standard of proof, and the provisions and costs of a jury trial, 180-day commitments based on dangerousness are very rarely used in California. Furthermore, danger of this level frequently results in arrest. California remains one of the only states that requires a burden of proof as high as "beyond a reasonable doubt" in commitment proceedings.

Outpatient Committal

Summary - Jonathan Stanley, Esq.

Because of the tendency to make everything seem as if its judicial, California’s system for mandatory treatment is as complex as it is ineffective. The multitudes of checkpoints that must be surmounted are redundant and wasteful. The reason for multiple judicial/due process paths for those dangerous to others, suicidal and gravely disabled is unclear and unique in comparison to other state’s statutes. Judicial discretion in treatment placement and the relatively short length of treatment combined with a 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 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.

Therapeutic Jurisprudence: The Impact of LPS on Recovery - David Stone, MD

As statutory and case law concerning the confinement and treatment of the mentally ill has evolved over the past thirty years, psychiatric research has responded with various attempts to quantify the impact of those legal changes on the citizen/patient. The majority of these studies have been critically reviewed by Paul S. Appelbaum, M.D. in his book Almost a Revolution: Mental Health Law and the Limits of Change.³⁸

Meanwhile, legal academia has itself responded to the law's sweeping changes. Over the past several years, a new area of enquiry in legal philosophy has emerged, namely therapeutic jurisprudence. Key thinkers in the area of therapeutic jurisprudence recognize that the weighing of only the personal and state interests is inadequate for mental health law; in addition, lawmakers and jurists must weigh the law's therapeutic impact on patient care and outcome. Refreshingly, some authors have urged legal scholars and scientists to "audit the law's success of failure" in the criminal and civil areas of mental health law, thus proposing critical, scientific assays of the law itself.

A recent large prospective study in the Los Angeles area has done just that, focusing on the Gallinot probable cause hearing and its impact on relapse and recidivism one year after discharge from inpatient care at Harbor-U.C.L.A. Medical center.³⁹ Historically, the probable cause hearing was amended into LPS statute after the California case of Doe v. Gallinot (486 F. Supp. 983). The probable cause hearing determines if the person meets the current criteria for involuntary treatment. Citing "massive curtailment of liberty", "adverse social consequences" of commitment, and the "substantial risk of erroneous application" of the grave disability standard, the District Court and Appellate Judges mandated probable cause review hearings to occur within seven days of confinement in every case of involuntary treatment.

The Harbor study followed 250 consecutive admissions to the hospital's two acute care settings. One year from the original admission date, the investigators compared the treatment outcomes of those patients for whom probable cause was found to the outcomes of those patients whose treatment was terminated when probable cause was not found. The results of this study were not only striking, but showed robust statistical significance.

Patients with major depression differed significantly in the time to enter outpatient treatment after discharge, despite standardized discharge planning in both groups: those who were allowed to complete their inpatient care entered outpatient treatment within 24 days of discharge, while those patients whose treatment was interrupted by the Gallinot hearing took over 173 days to enter the outpatient setting. Another trend emerged in the depressed: patients who completed their inpatient care averaged only 1.55 days back in the hospital over the follow-up year, while those whose treatment was curtailed by the hearing relapsed for an average of 14.25 days over the follow-up year.

Among patients with bipolar affective disorder, the completers and non-completers also differed significantly: patients whose treatment was cut short by the Gallinot hearing relapsed back to the emergency or acute setting within an average of 18 days, while those patients who completed their treatment without interruption did not relapse until an average of 65 days. These findings conform with clinical experience: as psychiatrists, practitioners of mental health law, and relatives of affected family members know, bipolar affective disorder is a relapsing-remitting illness. It is episodic. Furthermore, like seizure disorders, each inadequately treated episode of bipolar affective illness is associated longitudinally with faster relapse rates and stronger intensity and duration of each subsequent episode. Each interruption of treatment condemns the patient, ultimately, to worsening outcomes.

Finally, among patients with schizophrenia, Gallinot intervention assured significantly worse outcomes for the patient released from acute treatment. Patients who were retained in treatment spent fewer relapse days in the hospital setting compared to non-completers, and spent less than one day on average in treatment in the county jail over the following year. In contrast, those patients who were released prematurely by the probable cause hearing spent a greater amount of time back in acute treatment and an average of 28 days in treatment in the county jail mental health unit.

In the Gallinot case, well-intentioned appeals to least restrictive alternatives, appeals that hinge on the fear of "massive curtailment of liberty" as outlined by the Gallinot court, appear to fall flat in the face of the above data. Indeed, for the patients whose liberty the law seeks to preserve, the premature probable cause hearing release guarantees both worsened clinical morbidity and heightened restriction of personal liberties over the follow-up year. The data further suggest that the ultimate "stigma" lies not with commitment or treatment, but with the disease itself and the law's effect of severing treatment.

Overview

Despite age-old myths and misinformation, mental illnesses are not caused by bad character, poor child-rearing, abuse or an individual's unwillingness to behave in a socially-acceptable manner. Like Parkinson's, Alzheimer's and epilepsy, mental illness is a biological, physical disorder of the brain. Brain chemistry, structure and functioning, as well as genetics, have been identified as among the leading biological factors causing brain disorders.

The person who develops a mental illness typically loses his or her normal capacity for receiving, filtering, sorting, or interpreting information that comes into the brain through the senses. This may result in confusion, difficulty following the ideas and opinions of others, and problems in communicating ones' own ideas and opinions. In the most severe cases, the individual may make observations about his or her environment that are incorrect or wrongly interpreted, resulting in delusions, or in personalized perceptions, called hallucinations.

Mental illness may take one of many forms, but there is a common thread running through each of these forms -- that of the immediate need for treatment. But, unfortunately, mental illness often brings with it impaired judgment, rendering some of its sufferers incapable of making rational decisions about their own treatment and care.

A few of the more common disorders include:

Schizophrenia - Stephen Marder, MD

Characterized by psychotic symptoms, such as hallucinations and delusions, and impairments in social and vocational adjustment, Schizophrenia affects approximately 1% of the world population. Its onset usually occurs in the late teenage years or the twenties, but it may emerge during childhood or at any point during adulthood. Some individuals who develop schizophrenia experience a normal childhood and adolescence before the onset of active symptoms. For other individuals, the development of the illness is more gradual. These patients may have demonstrated early characteristics of the illness during childhood. They may have appeared awkward and shy, and have had few friends. Later, clear symptoms of schizophrenia, such as hallucinations and delusions, may emerge. Although hallucinations and delusions may emerge during childhood, this is uncommon.

Although the causes of schizophrenia have not been identified, it is evident that this illness is a disease of the brain. Individuals with schizophrenia often demonstrate differences in the size and shape of the brain areas that control our emotions and our higher brain functions. A number of research studies have found that when individuals with schizophrenia are asked to complete a task that is carried out by a particular area of the brain, they are unable to increase the amount of activity in that brain area.

Schizophrenia is an illness that runs in families. The risk for developing schizophrenia increase from 1% for the general population to 8-10% if the patient has a relative (i.e., sibling or parent) who suffers from schizophrenia. If the patient has a nonidentical twin with schizophrenia, the risk is similar to the risk for a sibling. However, if the twin is identical, the risk increases to as high as 50% in some studies.

Individuals with schizophrenia demonstrate remarkable differences in the severity of their illness and the nature of their symptoms. For some patients, schizophrenia can be managed with antipsychotic medications and supportive psychosocial treatments. These individuals may function normally within their communities. Other people with schizophrenia may be severely impaired continuing to experience auditory hallucinations (usually voices), delusions, and disorganized thoughts despite receiving antipsychotic medications. Others may have these symptoms adequately controlled, but will experience a lack of motivation and disinterest in social interactions. These later symptoms may or may not respond to medications, and can cause severe impairments.

The management of schizophrenia nearly always includes both antipsychotic medications and psychosocial treatments. Antipsychotic medications decrease the severity of nearly all of the symptoms of schizophrenia. They are most effective for symptoms such as hallucinations and delusions, but they may also improve decreased motivation and disorganized thoughts. Once psychotic symptoms have been minimized with an antipsychotic, these agents must nearly always be continued to prevent symptoms from returning. Many patients with schizophrenia experience severe side effects when they receive the older antipsychotics, particularly stiffness and restlessness. Until recently, many patients found that taking antipsychotics was almost as disturbing as the disease itself. Newer antipsychotics which just became available during the 1990s are associated with much milder side effects.

Major Depressive Unipolar Disorder - Elizabeth Galton, MD

Depression is the most common psychiatric disorder, with a lifetime risk of developing it varying in prevalence, depending on the study, of 10% to 25% for women, and 5% to 12% in men. No relationship has been found between getting the disease and ethnicity, education, income or marital status. It may begin at any age. Average age of onset is in the mid-twenties. The course is variable. Some people have isolated episodes separated by years without illness; others have clusters of episodes, and others have increasingly frequent episodes as they age.

The features include: a depressed mood with loss of interest and pleasure in nearly all activities; changes in appetite or weight, sleep and activity levels; low energy; feelings of worthlessness and guilt; difficulty concentrating, thinking or making decisions; agitation; or recurrent thoughts of death, with possible plans or attempts to commit suicide.

Suicidal thoughts are common, associated with thoughts that the world would be a better place without them. They vary in intensity and lethality. Thoughts of suicide may be motivated by a desire to escape seemingly insurmountable obstacles or a wish to end an excruciatingly painful emotional state caused by the underlying depression.

The disorder is treatable with a good success rate if caught early. Treatment consists of anti-depressant medication and psychotherapy. Adequate length of time devoted to treatment (usually requiring months or years) can prevent recurrence. For severe depression, hospitalization may be necessary.

Bipolar Disorder - Manic Depression - Lori Altshuler, MD

People with bipolar disorder experience severe mood swings ranging from depression (very low mood) to mania (very elevated mood). During both of these extremes, patients can lose their ability to make rational decisions about their care.

The depressed phase of bipolar disorder is characterized by a down mood. Patients often feel fatigued and lack motivation to accomplish things they had been able to do before the depression. Depression slows people down, both literally and metaphorically. For example, patients feel like they are weighted down and find it difficult to move. On a different level, the thought process is also slowed and the patient loses the ability to think clearly. This change in the ability to think clearly is known as "cognitive impairment" and also affects decision-making. The world becomes a bleak place and the patient may have irrational thoughts about wanting to die. A person with severe depression may not be able to make rational decisions about his/her treatment because the depression can cause thinking to become biased and clouded.

At the other extreme, a patient with mania may also be unable to make sound decisions regarding his/her treatment. Mania is characterized by a mood so high that it interferes with day to day activities. Individuals who are manic usually lack insight into their condition. They sleep less than usual (sometimes not at all for days) and they are constantly on the go. They may talk rapidly in a manner that does not make sense to a normal person. People who are manic can become psychotic, meaning that they lose touch with reality. They may see or hear things that others don't, or they may think they have special powers. A patient in a manic state such as this has a distorted perception of reality and has no ability to make sound decisions grounded in reality. Because mania often feels good to the patient, he/she might refuse treatment when it is indeed necessary to stabilize the patient's mood and to prevent escalation into a more dangerous state

Obsessive Compulsive Disorder (OCD) - Barbara Silver, MD