LANTERMAN PETRIS SHORT (LPS) Act:
​Reforming the LPS to improve CA’s Mental Health
With thousands dying(1) and decompensating in California’s streets and institutions, the relentless cycle between homelessness, hospitalization and the criminal justice system for unserved and underserved individuals with severe mental illness must stop.  It is in the interest of the state of California, local communities and the individuals and families they serve to: (1) Reform the LPS Act; (2) Ensure the availability of requisite resources to reduce and minimize involuntary treatment.

RECOMMENDATIONS 

  1. Redefine the term “Grave Disability” to include: “being able to live safely in the community”, guided by an individual’s need for supervision and assistance, risks of bodily injury, housing situation, physical health challenges, patterns of behavior and degree of psychiatric deterioration.
  2. Physical Health: Allow LPS Conservators to manage physical health conditions (as is currently allowable in the probate (2) setting based on the person’s incapacity to give informed consent.)
  3. Conservatorship Hearings: Open up hearings in the following ways:
  • A. Testimony: Allow testimony from the medical written record by other informed experts familiar with the individual (as well as knowledgeable family members, friends or acquaintances) as an alternative to requiring the expert who made the record to testify.  This would ensure decisions to conserve are based on the entirety of the medical record and may also help prevent vulnerable individuals from being inappropriately released before their mental health conditions have resolved.
  • B. Virtual Attendance: Authorize virtual appearances in conservatorship hearings and trials to be the standard in order to:
    • i. Avoid premature terminations of involuntary commitments because of scheduling or other issues unrelated to the issues of grave disability;
    • ii. Reduce unnecessary, sometimes unsafe transport of clients;
    • iii. Improve courtroom efficiency.

REQUISITE RESOURCES 

1. Engagement Tools:
  • Comprehensive Outreach
  • Shared Decision Making
  • Psychiatric Advance Directives (3)
  • Assisted Outpatient Therapy (AOT) (4) /Laura’s Law (5)
  • Conservatorship
2. Comprehensive Community Services that are accessible, integrated, recovery-focused, trauma-informed and culturally competent, addressing:
  • Housing (including Board & Cares(6)
  • Mental Health
    • Stabilization
    • Hospitalization
    • Medication Management
    • Peer Support
    • Psycho-Social Services
    • Physical Health
    • Public Guardians & Conservators
      • Appropriately trained
      • Staffing should allow for manageable caseloads
  • Substance Use
  • Vocational Rehabilitation
3. Inter-Agency Collaboration between hospitals, jails, prisons and behavioral health departments (county and commercial) that include:
  • Discharge/Aftercare Plans
  • Warm hand-offs

SAMHSA Policy Guidelines

from SAMHSA’s 2019 “Civil Commitment and the Mental Health Care Continuum: Historical Trends and Principles for Law and Practice”(8) 
1. Effective Treatment
​Civil commitment, whether inpatient or outpatient, should be reserved for those reliably diagnosed with a serious mental illness for which there is available treatment that is likely to be effective. Commitment’s purpose must be treatment, and need for treatment is an essential requirement for commitment.
2. Inability to Engage Voluntarily
If the person is willing and able to engage with services voluntarily, he or she should not be committed. In deciding whether to order commitment, courts should consider the preferences of the person and the degree to which the person understands the nature of his or her mental illness and the likely effect of treatment.
3. Risk of Harm for Person or Others
​A person should not be subject to inpatient commitment unless, without a hospital level of care, the person will be at significant risk, in the foreseeable future, of behaving in a way, actively or passively, that brings harm to the person or others. Unless the serious mental illness for which treatment is needed places the person at risk for harm, inpatient commitment should not be used. Risk for harm, however, should not require risk of violent behavior. If an individual is at risk for injury, illness, death, or other major loss solely due to mental illness symptoms such as an inability to exercise self-control, judgment, and discretion in the conduct of his or her daily activities, or to satisfy his or her need for nourishment, personal or medical care, shelter, or self-protection and safety, he or she should be committable.
4. Outpatient      Commitment is Preferable
If a less restrictive alternative to inpatient commitment is available, including outpatient commitment, inpatient commitment should not be ordered. If, with the help of family, friends, or others who are available and willing to help, a person is capable of remaining in the community without presenting risks associated with need for treatment, he or she should not be subject to inpatient commitment.
5. Outpatient      Commitment    Requirements
A person should not be subject to outpatient commitment unless (i) he or she meets the standard for inpatient commitment, but may be served in a less restrictive setting, or (ii) without the treatment proposed, and other supports the court might order, it is reasonably predictable that the person will experience further disability or deterioration to a degree that, in the foreseeable future, the person will meet the inpatient commitment standard. Because commitment under this second prong (i.e., on grounds of further disability or deterioration) addresses risks of harm that are less immediate, respect for personal autonomy may require an additional finding of impairment in the person’s understanding of the nature of his or her mental illness and the treatment proposed, including the potential risks and benefits of such treatment and the expectable consequences if commitment is or is not ordered. Full legal incompetency, however, should not be required.
6. Due Process
Legal proceedings should accord due process protection, including prompt notice of rights, assignment of counsel, and an opportunity to challenge commitment before a judge or other judicial authority without unreasonable delay.
7. Minimize Trauma 
Commitment practices should respect the privacy and dignity of the individual. Every effort should be made to minimize trauma. If law enforcement agencies are responsible for transporting individuals proposed for or under order of commitment, they should assign plainclothes officers in unmarked cars, whenever possible. Shackles and other restraints should be used only if necessary, never as a matter of routine.
8. No Incarceration 
Unless already incarcerated for a criminal offense, or facing criminal charges, no candidate for commitment should be detained in a jail or other correctional facility pending commitment, and no person who has been committed should be placed in a correctional facility for treatment services.
9. Prevention Upon Release
 
Jail and prison authorities, when planning for the release (re-entry) of an inmate with a serious mental illness, should consider whether to initiate commitment proceedings (inpatient or outpatient), depending on the inmate’s needs and the likelihood that the inmate will cooperate with treatment once released. Such authorities likewise should be attentive to the needs of inmates while incarcerated and, when faced with an inmate whose needs cannot be met in the institution, should take whatever steps are provided by law for the inmate’s transfer or commitment to a more therapeutic setting. 
10. Prompt
Termination
of Commitment 
Civil commitment should never be used solely for preventive detention or community control. Treatment staff should have the authority to terminate commitment without the court’s authorization and should terminate commitment as soon as the individual progresses to the point where he or she no longer meets commitment criteria. No court should insist that a hospital or other treatment provider retain an individual in services at a level of care that the hospital or provider believes is unnecessary. Before terminating an individual’s commitment, treatment staff should arrange appropriate services and supports for the individual in the community.

MANDATORY CIVIL PROCESS TO INITIATE LPS CONSERVATORSHIP
(from CA WIC and San Francisco LPS Report 2019)  (9) 

Psychiatric Emergency Services (PE) or other acute setting initiates or receives patients on 5150 Hold (72 Hours)
  • 5150 hold: for patients deemed to be gravely disabled and a danger to themselves and/or others
  • If patient stabilizes within 72 hours, patient is discharged.
  • If 5150 hold expires & treating psychiatrist determines patient is still gravely disabled, can initiate 5250 hold for up to an additional 14 days. Patients who appear to need a 5250 hold are scheduled for admission to the acute inpatient unit.
  • If patient stabilizes, patient is discharged.
Acute inpatient initiates 5250 Hold (Additional 14 days)
  • If 5250 hold expires and patient has not stabilized, can initiate 5270 hold for up to 30 days
  • Can refer patients to Public Conservator for temporary conservatorship at this stage or at any point during or after the initial 5150 hold
  • If patient stabilizes, patient is discharged.
Acute inpatient initiates 5270 Hold (Additional 30 days) 
  • If 5270 has expired or close to expiration and patient has not stabilized, can refer to Public Conservator for temporary conservatorship determination
  • Public Conservator investigates whether patient meets gravely disability criteria
  • If patient stabilizes or does not meet grave disability criteria, patient is discharged.  
​If psychiatrist determines patient is still gravely disabled, refers patient to the Public Conservator to determine if a temporary conservatorship is appropriate (5352.1 status)

​(5352.1) Public Conservator investigation finds grave disability. District Attorney petitions the Superior Court to grant temporary conservatorship (Additional 30 days)
  • If Superior Court agrees, Court grants temporary conservatorship of 30 days, and can extend up to six months. The patient can be placed in the clinically appropriate level of care pending the permanent conservatorship hearing.
  • If Superior Court denies petition for temporary conservatorship, patient is discharged
5008(h)(1)(a) hearing for one year conservatorship establishes permanent conservatorship
  • ​If Superior Court denies petition for permanent conservatorship, patient is discharged.
  • If Superior Court approves petition, the patient is placed in the clinically appropriate level of care
  • Public Defender represents patients at hearings for permanent conservatorship and City Attorney represents Public Conservator & DPH
  • Annual psychiatric evaluation to determine readiness for discharge

End Notes

1. https://insp.ngo/there-are-literally-thousands-of-people-dying-homeless-on-the-streets-of-america/
2. Probate Conservatorships:  LPS conservatorships differ from probate conservatorships.  California’s Probate Code (Division 4, Part 3, Section 1800) authorizes the local Superior Court to appoint a conservator for adults who are unable to provide for their basic needs of food, clothing, and shelter, and/or manage their personal finances due to dementia or physical disabilities.
3. Psychiatric Advance Directives (PADs) are legal documents, drafted when a person is well enough to consider preferences for future mental health treatment. PADs allow appointment of a health proxy to interpret preferences in a crisis, and the PAD is used when a person becomes unable to make decisions during a mental health crisis.
4. Assisted Outpatient Treatment (AOT): From CA’s  Department of Health Care Services 2018-19 Report highlighted:
  • Hospitalizations were reduced by a 33 percent change during AOT, as compared to prior to the program. All counties reported a decrease in the number of days hospitalized, frequency of psychiatric hospitalizations, and/or crisis interventions per individual.
  • Law enforcement contacts were reduced by a 43 percent change during AOT, as compared to prior to the program. Five counties reported all participants avoided law enforcement contact while receiving services. Four of the six counties that reported incarcerations of participants during AOT, noted reductions in the number of days incarcerated per individual.
4. Laura’s Law: [Important Note:  Research evidence has shown very little correlation between mental illness and any violent behavior.[7] Signed into law in 2002, Laura’s Law was adopted by the state Legislature after a man with mental illness fatally shot Laura Wilcox, a 19-year-old volunteer at a Nevada County mental health clinic. The legislation allows each county in the state to decide whether to adopt the provision. To qualify for Laura’s Law, an individual must have a serious mental illness that resulted in a psychiatric hospitalization or incarceration twice in the previous three years or resulted in violent behavior within the past 48 months. While outpatient treatment can be ordered, medication cannot.  Laura’s Law is designed specifically to help individuals with mental illness who suffer from a condition known as “anosognosia,” a complete lack of awareness of their mental illness.  2020 legislation, AB 1976 requires counties to participate in Laura's Law unless they opt out.
5. See CALBHB/C’s Issue Brief:  Adult Residential Facilities (ARFs)
6. “While an estimated 18.3 percent of Americans suffer from some form of mental illness, only about 4 percent of community violence is attributable to psychopathology per se (Swanson, 1994).” Substance Abuse and Mental Health Services Administration [SAMHSA], 2016 “Civil Commitment and the Mental Health Care Continuum:  Historical Trends and Principles for Law and Practice”, SAMHSA, 2019, page 18.
7. SAMHSA “Civil Commitment and the Mental Health Care Continuum:  Historical Trends and Principles for Law and Practice”:  Practical Tools to Assist Policy Makers in Evaluating, Reforming and Implementing Involuntary Civil Commitment: Policy Guidelines for Involuntary Commitment”, page 32
8. City & County of San Francisco Policy Analysis Report Re: Review of LPS Conservatorship in San Francisco, Page A-6

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