Clare Cortright: This, like, mental health becoming a focus and a practice area for traditional civil rights groups who have not had this as a focus area. There's starting to be a lot of attention because they're realizing this is the bleeding edge, right? Like, if it doesn't stop with us, it doesn't stop with us.
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and in recent years there has been a lot of legislative activity in California focused on making it easier to funnel people into the commitment process. But in order to really understand the scope of these new laws, I think we first have to discuss the foundation upon which these laws are being built.
So to better understand mental health laws in California, and the practical reality of what it is like to survive the commitment process in that state, I spoke with Clare Cortright.
Clare Cortright: My name is Clare Cortright, I'm currently the policy director for Cal Voices. We are a peer run organization, so that means we're an organization that's run entirely by and for people with mental illness. Um, I'm an attorney, I'm a person with lived experience of serious mental illness, lived experience of involuntary hospitalization, family member, friend, you know, partner to someone with serious mental illness. I spent, uh, almost 5 years representing folk who are being detained on involuntary holds in California. So we have a series of them, they go in increasing lengths, so I've represented several thousand people in four counties in California. You know, a lot of my, um, opinions and feelings about mental health are really from listening. I think when I did the back of the envelope math on like, how long have I spent in conversation with mental health consumers in one, you know, setting or another. And I think it's about like, four years in solid conversation with people. So that's kind of where my thinking has comes from.
Jesse: So, California has one of the most infamous mental health laws. What is a 5150?
Clare Cortright: Yeah, so in terms of who can initiate a 5150 in California, it's the police, categorically, and then the county has control. Typically, the county is going to want it to be a licensed provider of some type, somebody with some education, but they don't have to be. You could have, like, a behavioral health tech that has no education do it legally. So that initial hold, the 72 hour hold, is typically initiated by law enforcement.
Then you're, the law requires you to be transported to a designated facility, a mental health facility, doesn't happen. People sit in ERs a lot, um, for a number of reasons. So then you go to the hospital, you're supposed to get an evaluation. That evaluation is supposed to determine if you meet the criteria to be on a hold and also if you need to be on a hold, or if you will accept voluntary treatment.
Jesse: So the 72 hour hold, that's initiated by some sort of, someone with some sort of professional experience, or a police officer, they bring them in. Is that 72 hour hold three business days?
Clare Cortright: Oh, no, I mean, there's some provisions in the law that say in smaller counties, they can maybe not count some days. It doesn't really work like that in California, 72 hours means, and actually there was a law that clarified it maybe last year. So 72 hours really means 72 hours, or at least it's supposed to. And so then, yeah, so then the next step is you have to have an evaluation by a clinician and that you are supposed to be offered voluntary treatment at the point that they're considering a two week hold. It's just, it doesn't happen, and then it's not enforced. So what you will typically see is everybody gets placed on a hold and then the court system kind of just winnows through whether that hold was legitimate or not, which is what I was doing.
Jesse: So in California the commitment process is initiated by 5150, which allows a facility to involuntarily detain a person for 72 hours. But what are the parameters of that detention? What criteria is supposed to be used to determine whether or not initiating a 5150 is legally appropriate?
Clare Cortright: In California, currently under the law, if you suffer from, or someone alleges that you suffer from a mental health disorder, which is undefined, and you are also a danger to yourself, a danger to other people, or what's called gravely disabled, you can be placed on a series of involuntary psychiatric holds. Obviously, those holds would place you in a locked facility where you could be subject to either voluntary treatment, or involuntary treatment, meaning involuntary medication. There's a lot of misconception that mental hospitals do much more other than medicate people, they do not, you don't get therapy in a hospital. It's just, it's shocking and disappointing to many people.
So with regards to danger to self, we think of that typically as intentional self injury. The law again is vague, it doesn't really define, you know, how imminent this has to be or how serious danger to self. It's also interpreted in California to mean, for instance, like if someone is, let's say that they are experiencing a psychosis that is causing them to be disoriented, or in traffic, right? This is a common thing, people say, well, what if somebody is just running in traffic? Is that danger to self? Even though that person does not have the intentionality to harm themselves but their mental health is related to the way that their life is in danger, that satisfies danger to self in California. That's pretty consistently interpreted. So, even if your self harm is not intentional but your mental illness is the reason why there's some harm that's going to qualify for danger to self. You know, does it have to be imminent and serious? I would say consistently people have that standard in their mind, if you see how judges work, but technically the law doesn't really specify. So you will see a broad range of, like, you know, somebody's in the hospital post a very serious and lethal attempt versus somebody who just has thoughts that they might want to harm themselves, even if that is like kind of a chronic and baseline situation for them. You'll see people, you know, borderline personality disorder, some people that deal with chronic suicidality will end up in the hospital just for thoughts and be like, Hey, look, I've had thoughts for 15 years, never did anything. So, you know, what gives? So it's really, it's a broad spectrum there.
Danger to others is kind of similar, it can be predictive just like danger to self, right? So we might be putting you in a hospital because although you have not done anything to yourself, we think you’re at risk of it. I'll give an example of somebody that you wouldn't be surprised to see on a danger to others, you know, somebody that's having roommate conflicts in their boarding care home. You know, they have an established serious mental illness diagnosis and they push somebody, or slap somebody, they're going to the hospital for danger to others. Interestingly, it's the least common hold by far. It's also the most common hold to be struck down as baseless. It's also very racist, I could get into that.
But to go back kind of to the legal standard, what grave disability means is a person who, due to a mental illness, is unable to provide for their own food, clothing, and shelter. What it is in practice is there's absolutely no rigor to it, right? Like, and this is just like a random example, it's not because it's the only client. Just before I stopped actively doing defense, the last client that I had was a guy who made $190,000, like, this is legit, right? He wasn't delusional. I mean, $190,000 a year, you know, was housed, was everything, right? And had a longstanding serious mental illness and a very rare instance of psychosis. He was feeling better in the hospital. He's no longer psychotic. Nobody said that he was. And he got called gravely disabled. I had to take him to a hearing to get him out of the hospital. They would not discharge him. I'm like, y'all, he can provide food, clothing and shelter. His mental illness is not interfering with those things, you know, and even if he were completely inside psychosis, he has the resources and the legal standard is, can you access them? So, although grave disability appears to sort of be a standard that says you have to be more than just mentally ill, right? Has to be mentally ill plus. What it is in practice is “We think you're sufficiently mentally ill.”
Jesse: So this criteria; Danger to Self, Danger to Others, and Grave Disability. This criteria creates the broad net of eligibility used to determine whether or not someone can be forced into a 5150. And there are essentially no judicial safeguards in this part of the commitment process. It is also very common for a 5150, which is a 72 hour hold, to lead straight to 14 days of detention. So my next question for Claire was, what happens then?
Clare Cortright: So when you get to the two week hold, it's the same criteria; Danger to Self, Danger to Others, or Grave Disability. You do have the ability to challenge the hold, but the legal standard is very low. You don't get an attorney, you get an advocate, unless you happen to be in a county that uses attorneys, which is just a few. Santa Clara is one. So you get an advocate, you meet with your advocate, you kind of say, this is why I think this is bogus, this is why I don't meet criteria. Um, the hearing is just done by hearing officers, so they're attorneys that are employees of the court. There's no rules of evidence or procedure, it's not like a real court. The doctors aren't there, the medical professionals who are making these allegations about you are not there. You don't get to cross examine them. Basically, how these things work is you've got a social worker liaison from the hospital that’s going to come in and read from your medical record and everything in that medical record is going to be more or less treated as gospel truth, and then you got to talk your way out of it. So, you know, there's this kind of stereotype of who ends up in hospitals, it's not true. Oh, man, it's all kinds of people for all kinds of reasons and typically people are waiting, you know, four to six days into their two week hold to have a hearing. So you can be in a hospital in California without the ability to legally challenge it or get out, even if it's bogus, you know, for a week, easy. And that can be really catastrophic for people. They lose their jobs, they lose custody of their children, their cars get towed, they can't get them out of a hawk.
I mean, it's really, it can be very, very destructive to people's lives.
Jesse: That, so that hearing, it’s your first chance to challenge it, it's not in a formal courtroom with a judge. Is that a probable cause hearing?
Clare Cortright: Correct. And what probable cause means, it's a legal standard and it's very low. So what it actually is defined as is a legal standard that says, okay, you're an ordinary, reasonable person, do you have enough evidence without any specialized knowledge? As an ordinary reasonable person, have they presented enough evidence to you that you would, the lowest part of it is, you would strongly suspect that this person is actually mentally ill and as a result of their mental illness meets the criteria of the whole Danger to Self, Danger to Others, Grave Disability, very low standard.
And interestingly, in California, you know, because these psychiatric holds don't have anything to do with you being incompetent, and this is like a common misconception, right? We're doing this to people who aren't competent. No, the law doesn't say that, right? Like, there's all kinds of people with suicidality who are perfectly competent and don't want your services, but they don't have the legal right to refuse medical care despite being competent. So this creates a weirdness, right? Where you get into the hospital, they just want to medicate you. That is what they do. That is the only thing that exists today. Everybody's on medications. If you're not on medications, I'm getting you out of that hospital real fast. But in order to medicate someone in California, you either have to consent or they have to bring what's called a Riese petition, which is a petition to the court to involuntarily medicate you that has a higher legal standard. The doctor does have to show up. You do get cross examined on that. That's a real fight. So, you do end up with weird situations where, like, I lost the hold hearing, you're staying in the hospital, but I won the medication hearing. So then really, what are we here for? Right? So there's this oddness. So, right, you have the whole hold process and the hearings related to the hold, but then secondarily, the medication picture is completely separate. That's how the hospital system has to deal with the fact that we have very clear constitutional precedent that says that competent people have the right to refuse medical care. I think they should have the right to refuse hospitalization if they're competent, but that's not in the law yet, but there's many things many people should be sued for and that's probably one of them.
Jesse: This system; the 5150, the Riese petition, all of that is essentially woven into the basic fabric of the commitment process in California. And recently there has been a lot of legislative activity focused around the concept that these forms of detention provide too much due process. That it needs to be easier to force someone into this system. And one of the more prominent examples of this accelerated expansion of the commitment systems in California is the CARE Act, which created a new civil court process often referred to as CARE Courts. But what are CARE Courts? And how do they interact with the existing commitment system?
Clare Cortright: Okay, so the thing about CARE Court is Care CARE and Involuntary Holds, Involuntary Holds are under what's called the Lanterman-Petris-Short Act, or LPS. So, the legal criteria to be in the LPS system; Danger to Self, Danger to Others, Grave Disability, that's the LPS criteria. CARE Court is a completely different legal criteria. It's apples and it's oranges, right? So, CARE Court is, the standard is very low, it's that you're 18. You have a diagnosis in the schizophrenia, uh, spectrum class in the DSM. So that does not include bipolar, it doesn't include major depressive disorder with psychosis, or any other, like, medical cause psychosis, all of that's excluded. It's really going to be, you know, your core sort of schizophrenia, schizoaffective, schizophreniform, delusional disorder, that kind of thing. So, CARE Court, again, 18, schizophrenia spectrum DSM class diagnosis, you're not clinically stabilized in ongoing voluntary treatment. None of that is defined. We don't know what clinically stabilized means, it's just somebody's opinion. Specifically, it's the opinion of the person who's filing the petition, which can be someone as simple as someone you live with. So, like, my roommate could do this. Judicial Council, which interprets laws in California for the court system says, Hey, somebody who's in voluntary treatment, including seeing your psychiatrist, taking your medications, someone who's in voluntary treatment can be in CARE court if the petitioner feels that they're not clinically stabilized. The treatment that they're willing to engage in isn't effective. So, this is a really shockingly low standard.
And then the last criteria, if you want the minimum, it's like a decision tree. There's a bunch of junk, but let's take the lowest one because that's the broadest. Right? So, the lowest one is we think that you need to be in care court or be under a court ordered treatment plan to prevent you from relapsing into a state where you might be in a hospital, or might be worse off. So this is just super speculative, it's super low. So, it's a very minimal standard to like, you sort of say the magic words, the court looks at the documents and says, if I take all of this as true, does this person meet care court criteria? Yes? Okay. Boom. Now you're in the soup, right? Now you've got to show up to court, all this stuff.
Jesse: So the criteria used to force someone into the CARE Court process is a different, lower standard of criteria than is used for the 5150. So my next question for Clare was what happens to a person when they are pulled into the CARE Court process? What sort of impact can that type of court order have on the person it targets?
Clare Cortright: They can order a care plan. What's that? It's what kind of treatment we think you need to engage in. Unspecified. “stabilizing medications”, okay. And then housing, a housing plan. It's the court really saying we can kind of take over your entire life on this. So, you know, if it gets to the stage where the court is actually ordering this plan, the court is issuing an order and you're supposed to comply with it and you're supposed to show up to court periodically. It's usually 60 days for a case management conference, but I guess they could make you show up every day if they wanted to. And we're going to talk about whether you're being a good boy, or person, and whether you're not. And so if you're not, what can they do to you? You know, is kind of the question and the answer is not a lot, right? What does the CARE Act say they can do to you? Well, if you're not participating in your care plan, the court can terminate it. The court can use its power to make you go, the court can 5150 you. It's called Section 5200, but the court cannot 5150 you just for defying them in CARE Court. You have to still meet the legal criteria to be in the hospital. Again, the reason for that is the United States Supreme Court, right? So, you know, it's like, okay, if you don't do your care plan, we could just stop this process because you're not going to participate. We can try to order you to a hospital, and obviously that could be abused, right? Like, the court could just do it even though you don't meet criteria. And then the other thing is that if you don't follow your care plan, we're going to use it as evidence that you are a scofflaw in a conservatorship proceeding.
So, it creates what's called a legal presumption, and they're going to say, look, if you're subsequently in any proceeding under the LPS, including an involuntary hospitalization, we get to use your scofflawing in CARE Court as evidence that you need that process. And that's clearly BS, right? Because these criteria have nothing to do with each other, right? So, it's still oppressive. It's still a violation of people's civil rights. A lot of it is untested, you know, can the court really tell me where I can live because they think I'm not optimally stabilized? Good question, we'll find out. You know, I, I guess what I would want people to know about CARE Court is that it's not every other outpatient treatment law. We have outpatient treatment laws across the country, CARE Court is different because the standard is so low. It's such a low standard, right? That it can happen to people who would never, ever be hospitalized, never, ever have been hospitalized. They can be in the court system. They can also refer to people, so if your conservatorship is ending because you no longer meet criteria to be in a conservatorship, that conservator can petition you into CARE Court. So the court system can have you longer, right? So they can sort of step you down from a conservatorship into CARE Court.
Jesse: So it seems like it's a form of community based court order, really, really low standard, but what strikes me is that it seems like almost by design, it isn't that the court order has some immense teeth to it. It is that it creates a sort of process of information gathering. You're stuck in a process where they're collecting information about you and constantly you have looming over you, because of this court order and because of all these records, at any point we could use that information if we so choose. So the coercion becomes ever present.
Clare Cortright: Yes, it's absolutely surveillance, and one of the more outrageous things that happened with CARE Court, CARE Court is still under construction. There was a bill in the legislature that passed called Senate Bill 35 from Tom Umberg, Senator Tom Umberg, who's the person that did CARE Court. And what it purported to do is like at this initial stage where the county, you know, when you get a petition filed against you in CARE Court, you don't get any notice initially. You don't even know this is happening. And you're not represented by an attorney. So like, let's say the county is the petitioner, the county is then, this law purports to say that the county has to give the court all your medical records. Not just your mental health records, all your medical records. And only those medical records that support their position that you belong in CARE Court. And this is happening without your knowledge or consent. And then they also placed in there that other providers, if you're not a client of the county, other providers can and sometimes have to turn your medical records over to the county for the purposes of investigating you and prosecuting you in CARE Court. You know, there's so many deep and important issues that people aren't talking about, like, just a fundamental question, you know, when is your private health decision the government's business? We should ask that question, right? Because you can't catch schizophrenia. When are the decisions I'm making about my body or what to put in my body become a matter of public interest? And CARE Court is a real assault on that level because it's not a good reason, right? This isn't a good reason to be in a courtroom, to be hailed into court that someone feels you're not optimally stabilized although you're in voluntary treatment for a mental health disorder. I mean, it's shockingly low.
And the mentality is as concerning as the black letter law. And what's happening in California, because we are changing the definition of Grave Disability and it's now even more speculative and low, and I will spend just one moment saying what that is. Now you can be considered gravely disabled in California if you don't have a mental health disorder, you have only a serious substance use disorder of any kind, and we feel that you cannot adequately protect yourself. You can't attend to self protection. Now you can be conserved in a locked facility because we feel that your substance use disorder is making it so that you can't protect yourself. Protect yourself from whom? Ask Jordan Neely.
Jesse: As we brought the interview to a close, I asked Clare if there is anything else about these laws, or about these ongoing legislative efforts, that is important to know?
Clare Cortright: I will just say briefly, what is happening in California Is we have a very large homeless population. We have plenty of studies to show it's overwhelmingly sane and sober people, but there is a tremendous amount of political pressure to do something, do something about the unhoused, particularly those with substance use disorders or mental illness. And what is emerging now, what just happened during this legislative cycle is the Mental Health Services Act, which is overwhelmingly for voluntary county based public mental health services, it's a third of our system, is being rated to support a bond in part to be operating subsidies for buildings being built under an associated bond, AB 53, that is going to build locked infrastructure.
At the 11th hour, literally, they had 72 hours under the California constitution to have this bill in print before it could be voted on. At 81 hours out they flipped it from it's for voluntary unlocked facilities to all of it can be used for locked facilities. They need to build out locked infrastructure for substance use in California that doesn't exist to support their expansion of involuntary holds and conservatorships for people with substance use disorders.
There is a grand scheme here and for advocates we're looking at this like it is the largest expansion of the carceral state in California ever. 4.34 billion dollars to build out this infrastructure and taking voluntary mental health services money to support it. And if you listen to politicians, right, they are telling you, we think we have 60,000 people who have serious substance use disorder, serious mental illness on the streets. And this is the plan for them. This is the system we're building to deal with this, and it's carceral.
CARE Court is a sideshow in my opinion. CARE Court is not even the tip of the iceberg on this.
Jesse: When we first started production on this episode our intent was simply to talk about CARE Courts. But it became quickly apparent that CARE Courts were just one thread being woven into an ever expanding net of commitment laws in California. And those laws, those expansions, frighten me. So over the next few episodes we are going to talk more about these laws. We are going to talk about which parts of the commitment process are going to be expanded. And we're going to try and figure out what it means to try and survive, in California, when almost every single legislator enthusiastically declares that they now consider you committable.
Next time on Committable.
Olivia Ensign: No matter how many times the proponents of this system want to use the word voluntary or care, it doesn't change the fundamentally coercive nature of CARE Court.
Lex Steppling: It's a political spectacle rooted in the discomfort or the revulsion of several classes of people rather than the conversation we should all be having, which is like, there are solutions to this actually. They may not be something you understand, but there are answers.
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.