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Column: Newsom, Gloria give momentum to expand conservatorships for mentally-ill homeless people

San Diego Union-Tribune - 1/19/2022

Last week, Gov. Gavin Newsom suggested the law needed to be changed to require treatment for homeless people "who truly can't help themselves."

Two days later, Mayor Todd Gloria echoed that sentiment.

"I am pushing for state action on conservatorships so that people who cannot help themselves aren't left vulnerable to the dangers of life on the streets," he said in his State of the City speech last Wednesday.

This wasn't the first time the governor and the mayor, along with others, have talked about expanding the state's conservatorship law to more homeless people with severe mental illness.

As state and local governments begin pouring in more resources to house and help people living on the street, the idea of allowing more conservatorships increasingly has been part of discussions about reducing pervasive homelessness in California.

Bills aimed at making substantial changes to the law have failed to get through the Legislature in recent years, however. But the effort is gaining new momentum. In mid-December, a legislative committee held a hearing focused on conservatorships and whether the rules to allow them should be changed.

It's a thorny issue about rights and responsibilities: Should society force people with badly impaired decision-making ability into the care they need, or protect their right to choose for themselves?

The former often is backed by mental health advocates and families with relatives who have mental disorders, while civil libertarians and disability groups tend to argue the latter, though the two sides aren't neatly defined.

A central question is whether a looser law can still provide adequate safeguards to avoid putting people under conservatorship who shouldn't be there, and making sure those who are ready to come out of it are allowed to do so.

Looming over the debate is a dark history of grim institutions and a law enacted more than half a century ago to do away with them that was supposed to provide a better alternative, but didn't.

Conservatorships got a lot of attention last year with the plight of pop star Britney Spears, who got out from under her father's legal control after 13 years.

John Cox, who ran as a replacement candidate in the unsuccessful Newsom recall, keyed off that in promoting his sweeping proposal to put homeless people living on the streets either in jail or treatment facilities. Other Republican candidates offered similar proposals.

"Britney Spears doesn't need a conservator," said Cox, a Rancho Santa Fe businessman. "Thousands of Californians living on the streets are the ones that need conservatorships. And we have to force people to do it."

The discussions going on in Sacramento are more narrowly focused and predate the Spears resolution. Newsom raised the issue of overhauling conservatorships in his February 2020 State of the State address, which almost exclusively focused on homelessness.

Up until the mid-1960s, it was easier to get someone institutionalized involuntarily in California. Concern grew over reports of poor treatment, abuse, lobotomies and electric shock therapy.

In response, the Lanterman-Petris-Short Act was passed by the Legislature in 1967 and signed by Gov. Ronald Reagan to restrict involuntary care to people who were a threat to themselves or others, or "gravely disabled," and limited how long they could be confined. That included the 72-hour hold, often called a 5150 by law enforcement, a reference to the section of the state Welfare and Institutions Code.

One of the authors of the law, the late Democratic state Sen. Nicholas Petris of Oakland, later said the law didn't fulfill the promise of funding treatment for people with mental illness in community-based programs. According to CalMatters, he blamed Reagan for diverting much of the money back to the state general fund.

"That took the guts right out of this state money for local treatment," Petris said, according to an oral history in 1989. "It emptied out the hospitals, but there was no follow-up treatment….In this overemphasis to get away from this tyrannical and oppressive system… of incarcerating people so easily, we went overboard the other way."

Other critics note that some people with mental health disorders ended up in the criminal justice system, and eventually were released. That process sped up through prison reforms under Gov. Jerry Brown.

Advocates for changing the law have focused on expanding the definition for "gravely disabled." According to Assembly Bill 1572 introduced in 2019, existing law defines that as, among other things, "a condition in which a person, as a result of a mental health disorder, is unable to provide for the basic personal needs of food, clothing, or shelter."

The measure proposed this change: A person "as a result of a mental health disorder, is incapable of making informed decisions about, or providing for, the person's own basic personal needs for food, clothing, shelter, or medical care without significant supervision and assistance from another person . . ."

Proponents say conservatorships should be a last resort and expanding them must be combined with increased spending on housing, treatment and other supportive services.

"It can't be done in isolation," said Greg Angela, CEO of Interfaith Community Services in Escondido. ". . . It's not a silver bullet."

The American Civil Liberties Union has criticized proposed expansions of conservatorships for a number of reasons. One is that it would take considerable resources to bulk up the process — lawyers, judges, guards, facilities — that could be used to improve a system that presses for voluntary treatment. But the ACLU has a larger argument.

"Conservatorship is the biggest deprivation of civil rights aside from the death penalty," Susan Mizner, disability rights program director of the ACLU, stated in opposition to one piece of conservatorship legislation.

Mental health advocate Linda Mimms of Poway said there's a different civil rights issue: not giving care to people with serious mental illness, who don't realize they need it.

"It's unconscionable not to get them into the medical treatment they need," said Mimms, vice chair of the Schizophrenia & Psychosis Action Alliance.

She added that a revised law would "only be applied to our sickest people." Mimms insisted there would be adequate protections for those under conservatorship.

One law in this area that recently passed allowed San Diego, Los Angeles and San Francisco counties to set up pilot programs expanding the use of conservatorships. While many are watching how this plays out, the programs are still very restrictive. For one thing, courts can only approve conservatorships for people who have been placed in a 72-hour psychiatric hold at least eight times in a year.

Even if, miraculously, San Diego and the rest of the state make significant progress in housing and helping homeless people who will accept the assistance, those who won't will remain a safety, societal and political problem unless something changes.

This story originally appeared in San Diego Union-Tribune.

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