Published August 8, 2020
A massive and highly critical state auditor’s report has given new life to legislation to deal with California’s notoriously troubled mental-health system. The shift comes as state lawmakers, convening amid the COVID-19 pandemic, face hundreds of bills in the closing days of the legislative session.
While a bill to strengthen and make permanent “Laura’s Law” in California sailed through the state Assembly in early June, it stalled in the state Senate, as legislative leaders clashed over how to manage the crush of bills awaiting action by the Aug. 31 deadline.
But when state Auditor Elaine Howle unequivocally urged statewide adoption of Laura’s Law in California in her July 28 report – and after Assembly leadership complained that Assembly bills were not receiving fair hearings in the Senate – the measure was suddenly added to the agenda for a Senate Health Committee hearing on Saturday, Aug. 1.
The original 2002 law enables families with severely mentally ill relatives to access a program known as Assisted Outpatient Treatment — AOT, or “Laura’s Law ” in California.
The bill, which gives family members legal recourse to get mentally ill relatives into treatment, easily passed 8-0.
“We were dead in the water,” said Randall Hagar, legislative advocate for the bill’s sponsor, the California Psychiatric Association, “and all of a sudden [the bill] was ‘pending’. It was the only bill added to the committee hearing.”
The Senate Health Committee’s required bill analysis was also expedited and it was joined with the Senate Judiciary Committee analysis. The measure, AB 1976 by Assemblywoman Susan Talamantes Eggman (D-Stockton), now goes to the Senate Appropriations Committee and, if approved, to the Senate floor.
The original 2002 law enables families with severely mentally ill relatives to access a program known as Assisted Outpatient Treatment — AOT, or “Laura’s Law ” in California. Experts say AOT has been successful in California and other states in reducing hospitalizations, incarceration and homelessness.
But California allows counties to decide whether they want to “opt-in” to the program of intensive treatment, and only 20 of California’s 58 counties have agreed to start Laura’s Law programs.
Eggman’s bill would require counties to publicly state, in writing, why they choose to “opt out” of the program, would add judges to the list of those who can request treatment, and end a “sunset” provision which required renewal hearings every five years.
Many of Howle’s recommendations are not new. They have been addressed by legislation, reports and recommendations spanning decades.
Eggman agreed to extend the bill’s implementation for six months until July 2021 to give counties time to prepare.
Laura’s Law is named for Laura Wilcox, a 19-year-old college student who was working in a Nevada County mental-health clinic in 2001, when she and two others were shot and killed by a deranged clinic client whose family had repeatedly tried to get help for him, but were rebuffed by a clinic psychiatrist.
“Laura Wilcox might be alive today if this program had existed then,” Eggman told the committee.
Laura’s parents, Nick and Amanda Wilcox, tirelessly lobbied state and local government for Laura’s Law and tougher gun legislation. Nick Wilcox testified at the Aug. 1 Health Committee hearing that the county programs have saved lives and reduced costly institutionalization.
“We’ve been approached many times by people who have told us that Laura’s Law saved the lives of their family members,” he said, by getting them into intensive treatment.
Most people voluntarily enter the program, but the law also provides for court oversight and intervention to ensure treatment.
Disability rights groups have long opposed the law, saying it infringes on civil rights, and county mental health directors – while supporting the concept of the law – dislike adopting it without more funding, and they say it places additional burdens on already strapped local programs.
Decades of bills, reports, recommendations
Many of Howle’s recommendations are not new. They have been addressed by legislation, reports and recommendations spanning decades. But an increasing number of mentally ill Californians wander the streets, recycle through overwhelmed hospital emergency rooms, or end up in jails and prisons that have become de facto mental institutions ill-equipped to house, much less help them.
In the detailed, 120-page audit, in the works since last summer, Howle specifically addressed the 1967 Lanterman-Petris-Short (LPS) Act , the landmark law that has governed mental-health care in California with few changes for more than half a century.
The auditor did an in-depth analysis of involuntary mental health treatment procedures (LPS “holds” and conservatorships) in three California counties – Los Angeles, San Francisco and Shasta. Howle was particularly critical of state oversight of programs primarily run by California counties, which receive billions in federal and state funds for mental health, with little statewide coordination or comprehensive data collection.
Those detained on LPS “holds” frequently end up in overcrowded hospital emergency rooms, where they too often languish without substantive – or any – treatment.
Howle recommended no changes in the basic LPS criteria for involuntary treatment – originally designed to prevent the grotesque civil-rights abuses of mentally ill Californians who were confined, often for years and against their will, in aging state mental hospitals.
But her report slams the lack of follow-up care for those who are detained under LPS holds, usually no more than 72 hours. The auditor also studied people placed in conservatorships – the most restrictive and long-term commitment under LPS – and concluded they receive little or no community care after leaving conservatorships.
California’s mental hospitals, which also housed developmentally disabled residents, including children, often for decades, were largely closed in the 1960s and 1970s, with only a few facilities remaining, mainly for those judged criminally insane.
But the “community care” touted to replace them never materialized. Howle excoriated the state’s failure to provide adequate or even minimal follow-up care to those detained on LPS “holds,” who frequently end up in overcrowded hospital emergency rooms, where they too often languish without substantive – or any – treatment.
“Perhaps most troublingly, many individuals were subjected to repeated instances of involuntary treatment without being connected to ongoing care that could help them live safely in their communities,” Howle wrote in a cover letter to the governor and legislative leaders.
In Los Angeles County alone, she said, “almost 7,400 people experienced five or more short-term involuntary holds from fiscal years 2015–16 through 2017–18, but only 9 percent were enrolled in the most intensive and comprehensive community-based services available in fiscal year 2018–19.”
Sacramento Mayor Darrell Steinberg described the auditor’s report as “compelling and spot-on.”
Mental-health professionals, advocates and families generally praised Howle’s report, while also recommending other changes in the law.
“It’s the first deep-dive that’s been done on LPS since it was passed,” said Hagar of the California Psychiatric Association, which has sponsored much of the mental-health legislation that followed LPS. “It’s very impressive, and there is new life for mental-health legislation in part because of the audit.”
Sacramento Mayor Darrell Steinberg, as a state legislator and Senate leader, authored significant legislation to improve mental-health care in California, including the 2004 Mental Health Services Act (MHSA), passed by voters as Proposition 63, the so-called “millionaire’s tax.” He described the auditor’s report as “compelling and spot-on.”
“It’s a microcosm of what’s wrong with the entire system,” he added. “And an indictment of a system that, despite many gains and $2 billion-plus in [annual] MHSA funds, still has not become focused on outcomes, on prevention, early intervention and on integrating the multitude of funding streams that would help people get more timely help.”
But Steinberg, Hagar and others said the audit failed to recommend expanding the criteria for LPS holds and conservatorships to include physical health and deterioration caused by mental illness as part of the “gravely disabled” criteria under existing law.
Focused as it was on “those people who somehow make their way into the system,” albeit on involuntary holds, Steinberg said the report “did not address how we get more people into some care in the first place. At least they found their way into the system, flawed as it is, but what about all the people who don’t enter any kind of care?”
Redefining ‘grave disability’
While strongly supporting statewide adoption of Laura’s Law, Howle criticized the law’s requirement that it be used only for people in a current state of mental “deterioration,” which the auditor said prevents the follow-up treatment necessary for individuals leaving involuntary holds and conservatorships — who are deemed sufficiently “recovered” to live safely in the community.
But without continuing treatment, they often deteriorate rapidly. Hagar said he is drafting new legislation for the next session to address that flaw in the law, noting that the auditor’s report “has given us the green light to do that.”
“It’s well-researched for those three counties, but we are a very big state.” — Sheree Lowe
Steinberg, Hagar and other mental-health advocates with long experience in legislative reform efforts, say the Legislature must address needed changes in the basic LPS criteria for involuntary holds, which they argue fail to protect people with severe mental illness whose physical health – and their ability to safely function in the community – are seriously impaired.
While the auditor concluded those criteria do not require change, critics say the report contained little analysis of how that conclusion was reached. “What is the basis for the conclusion?” Hagar asked. “We didn’t find anything [in the report]. And that’s not enough.”
Some local mental health directors also disagreed with the auditor’s conclusion, pointing to individuals with severe mental illness whose physical health and safety are impacted.
In Los Angeles County’s response to the auditor’s findings, the county Department of Mental Health said LPS criteria should be expanded to “redefine grave disability.” The county suggested legislation that “at a minimum. . .should address the capacity of an individual to make informed decisions and include criteria regarding the need for significant supervision and assistance, risk for substantial bodily injury, worsening physical health as well as significant psychiatric deterioration.”
Sheree Lowe, vice-president of behavioral health for the California Hospital Association, praised the report, but said its scope was limited. “It’s well-researched for those three counties,” she said, “but we are a very big state. And one of the big problems with our county-based delivery systems is that the array and amount (of mental-health services) vary county by county and city by city, and there is little continuity.”
“Despite the billions of dollars the state invests in the county-based mental-health system each year, stakeholders do not have the information they need to assess the effectiveness of these funds on people’s lives.” — Elaine Howle
Nor did the report address the huge burden shouldered by hospital emergency rooms, Lowe said, which is where thousands of people experiencing mental-health crises, including 5150 holds (a reference to the law governing mental-health holds), end up, often brought there by a police officer. And, as the auditor did note, data collection on the number of involuntary holds is limited and inconsistent, with no reliable statewide database.
While the state Department of Justice maintains confidential data on involuntary mental-health holds, the DOJ said in its written response to the auditor’s findings that its use of mental health records “is very limited to the purpose of determining someone’s eligibility to purchase or possess firearms and/or ammunition.”
Largely nonexistent statewide data collection on mental-health programs was a major criticism by the auditor.
“Despite the billions of dollars the state invests in the county-based mental-health system each year, stakeholders do not have the information they need to assess the effectiveness of these funds on people’s lives,” the auditor concluded. “Public reporting of dedicated funds [for mental-health programs] is disjointed and incomplete.”
The audit was originally requested in the summer of 2019 by the Steinberg Institute, founded by Mayor Steinberg to advocate for mental-health reform, and by legislators concerned about the lack of data on the state’s vast mental-health system, which is largely administered by the counties. And efforts to reform the aging LPS law were stymied by the lack of reliable statewide data.
The history of legislative efforts to address mental health in California is long and tortuous…
“What we found was that information being shared [about LPS reforms] was anecdotal,” said Maggie Merritt, the institute’s executive director. “There was no sound research or data. And there were legislators at the time who had bills on the LPS Act. We thought it was time for an audit to better inform the efforts that were in play.” She said the auditor’s report will help to inform future legislation.
Lack of treatment, ‘tragic deaths’
In a June 3, 2019, letter to the Joint Legislative Audits Committee requesting the audit, Sen. Henry Stern, D-Calabasas, and five other legislators said the audit was needed in order to support LPS reforms.
“The criteria for making a determination that a person is considered ‘gravely disabled’ [under LPS] has been subject to varying degrees of interpretations in jurisdictions across the state,” they wrote. “These subjective interpretations have created unequal application of the law from county to county,” resulting in lack of treatment and “tragic deaths.”
“By better understanding how and when the LPS Act is applied by the counties, we will come to understand how we might improve the LPS Act or other areas of the law to prevent these tragic deaths,” they concluded. The request was quickly approved, and the audit undertaken soon after.
The history of legislative efforts to address mental health in California is long and tortuous, and the LPS Act was a reaction – many critics have long said an over-reaction – to the blatant civil rights abuses of mentally ill and developmentally disabled Californians, who were often locked away in state mental hospitals, sometimes for decades, with limited treatment and little recourse.
The end result was no consistent community care and a patchwork of programs, with vast differences across the state, and thousands of mentally ill Californians recycling through hospital ER’s, wandering the streets or incarcerated.
The detailed 2012 task force report noted that inpatient psychiatric beds have been “substantially reduced” in California, and emergency rooms are overwhelmed by people in mental-health crises.
“Deinstitutionalization was the beginning of the difficult times,” Dr. Stephen Mayberg, former director of the state Department of Mental Health, which has since been absorbed into other departments in the constant bureaucratic juggling that characterizes the state mental-health system, told a California Journal reporter in 1997.
“The state hospitals went from 35,000 to 5,000, and the community just was expected to deal with it, without the expertise or the resources. It was a recipe for problems, and we’ve been digging ourselves out of that hole ever since.”
More than three decades after LPS was passed in 1967, the first of two community-based LPS Reform Task Forces was formed in 1998 to examine the law and recommend changes.
Comprised of prominent mental-health clinicians, judges, law enforcement, family members and advocacy groups (the California Psychiatric Association and the National Alliance on Mental Illness-California were major supporters), the task forces were not convened by any governmental agency. Both raised serious questions about the effectiveness of LPS and proposed some of the same legislative changes addressed in the state Auditor’s report.
The second task force report, in 2012, “Separate and Not Equal: The Case for Updating California’s Mental Health Treatment Law,” has since served as a blueprint for legislative reform.
The detailed 2012 task force report noted that inpatient psychiatric beds have been “substantially reduced” in California, and emergency rooms are overwhelmed by people in mental-health crises. At the same time, state prison realignment policies dictate that more mentally ill parolees be treated in the community, with “little consideration…given to the failure of the mental health system to prevent their initial incarceration.”
At that time, the then 10-year-old Laura’s Law was operating in only two California counties.
“A person with severe mental illness is now four times more likely to be in jail than in a hospital bed,” the report concluded. “The LPS Act is 45 years old (in 2012), and it has not changed in response to an evolving mental health delivery system.”
“Mental illness is a disease of the brain” – Dr. Steve Seager
The first task force report, released in 1999, titled “A New Vision for Mental Health Treatment Laws,” lambasted the failures of LPS, and made recommendations to change the law that are similar to the recent state Auditor’s scathing report.
Noting that LPS “was written 30 years ago, before scientific knowledge advanced, recognizing mental illness as a physical disorder of the brain,” the task force said flatly that the law’s purpose was primarily “to depopulate the state hospitals.” The “community care” that was to replace the hospitals was disjointed and inconsistent throughout the state, and the LPS Act was amended “piecemeal,” resulting in an involuntary treatment system that is “adversarial, costly and difficult to administer.”
The report included summaries of testimony by families, clinicians and advocates at a remarkable 1998 Los Angeles hearing on mental health reform convened by L.A. County Supervisor Mike Antonovich and then-state Assemblywoman Helen Thomson, D-Davis, a former psychiatric nurse who authored major mental-health legislation, including the 2002 Laura’s Law.
The testimony reflected the makeup of the LPS Reform Task Force itself, and the accounts are instructive, thoughtful, wrenching – and more than three decades before widespread recognition of the need for substantive change.
Some of the dozens who testified are identified by name, mostly advocates and clinicians; others, mostly family members, are identified by initials. All called for change in the then 30-year-old LPS law, detailing horrific experiences in the state’s desperately broken “system” of community-based mental health care.
“Mental illness is a disease of the brain,” Dr. Steve Seager, a psychiatrist and author of several books on mental illness, testified at the LA hearing.
“It is not mystical, it is not demon possession, it is not punishment from God. It is a disease like heart disease, liver disease. . .The three most common admitting diagnoses from a study in San Francisco [of] homeless mentally ill were scabies and lice; starvation; and major trauma, either beatings, stab wounds or gunshots. . . The homeless mentally ill are murdered at ten times the rate that normal people are murdered. A third to one-half of homeless mentally ill women have been raped.
“The whole system is wrong.”
Editor’s Note: Sigrid Bathen is a Sacramento journalist and former Sacramento Bee reporter who taught journalism at Sacramento State for 32 years. She has long covered mental-health issues, for several publications, and her writing has won numerous awards. She has covered health care, education and state government for Capitol Weekly since 2005. Her web site is www.sigridbathen.com. She can be reached at firstname.lastname@example.org.