Health Care & Hospital Law,
Oct. 26, 2023
CARE Court will become a path toward institutionalization
California must invest in community mental health services and housing – with input from people with lived experience of mental illness – not involuntary treatment.
“Nothing about us without us” is a disability rights mantra going back several decades. Its meaning is as simple as it sounds: policies affecting people with disabilities should not be created without the full and direct participation of those most impacted. But over the past two years, the Governor and Legislature have embarked on sweeping changes to our mental health system. Without any of us, especially Black, Indigenous and People of Color, who are disproportionately affected by both serious mental health diagnoses and homelessness.
Recently enacted legislation strips us of civil rights and, subject to voter approval, cuts core mental health services on which we depend. These changes perpetuate mental health stigma and blame people with mental health disabilities for the homelessness crisis. Senate Bill 43 expands criteria for involuntary treatment to make it easier to hospitalize and conserve people against their will. Mental Health Services Act modernization, if approved by voters, will significantly reduce funding available for voluntary, community-based mental health services and provide taxpayer-funded grants to build and expand locked, involuntary facilities. The CARE Act, also known as CARE Court, allows third parties to initiate court proceedings against people with mental health disabilities and creates a new pathway to conservatorship.
This legislation was enacted over the objection of people with mental health disabilities, who made clear that recovery and wellbeing depend on housing and voluntary community services. During legislative hearings on Senate Bill 43, author Senator Eggman said that when State hospitals closed, we promised community-based services that never materialized. Yet instead of enacting legislation to increase access to those services, her solution is to step in with ways to increase conservatorship – despite the total lack of any data to suggest that approach will work. This unfortunate policy choice will only move us backwards.
The evidence that does exist strongly suggests addressing homelessness and mental health recovery requires housing. Although some like to think people end up living on the street because of mental illness and substance use, two recent publications upend that myth. In June 2023, the University of California, San Francisco released the California Statewide Study of People Experiencing Homelessness, the largest study of the unhoused in almost 30 years. According to principal investigator Margot Kushel, MD, the cause of homelessness is lack of affordable housing, low income and sudden loss of income. Data analysis by Mental Health America of California confirms the UCSF findings. People are unhoused because they cannot afford housing. According to MHAC, “[t]he high number of Californians without homes is not a mental health issue, it is a housing access and affordability crisis.”
One cannot solve a housing crisis through a forced-treatment lens. The vast majority of our estimated 173,000 unhoused, 78% unsheltered neighbors, are neither seriously mentally ill nor substance users. The unhoused do suffer from anxiety and depression at extremely high rates, conditions that developed because they are unhoused. That suffering is being cynically pathologized to support a false narrative that mental illness is causing homelessness.
Proposition 63 of 2004, a grassroots voter initiative, imposed a 1% tax on incomes above $1 million to fund community-based mental health treatment. Groundbreaking at the time, Prop 63 was the result of hard work over several years to draft, collect signatures and pass. Much of Prop 63 is being rewritten by the modernization legislation. In July the Legislative Analyst estimated the changes would reduce services under Prop 63 by $700 million. That’s an important point – real people are getting real services right now but are in jeopardy of losing those services. How can any solution that decreases services hope to succeed?
CARE Court gives hundreds of millions of dollars to create a judicial infrastructure for court-ordered treatment under a “CARE plan.” People brought to CARE Court have committed no crime. Though CARE Court has been promoted as a solution to homelessness, there is no guarantee of housing.
Supporters like to say CARE Court is voluntary but that is not the case under any accepted definition of the word. Voluntary means “without any element of force, fraud, deceit, duress, coercion, or undue influence.” California Penal Code Section 261.6 The black-robe effect will amplify CARE Court’s coercive nature. On top of that, there is a price for people who “fail” in CARE Court: they may be referred for conservatorship with a presumption that there is no less restrictive option available. Under SB 43’s lower standard for conservatorship, CARE Court will become a path toward institutionalization.
If you are trying to solve a problem, it’s important to both identify the problem accurately and evaluate potential solutions on the basis of whether they solve the problem. As the California Legislative Analyst noted in their July 13 post, “the administration’s justification of its proposed changes is incomplete.” Justification is still incomplete. At stake is billions of dollars and the real lives of people these policies purport to help.