California poised to amend landmark mental health law

Sept. 15, 2023 Updated 3:29 PM PT

California lawmakers gave final approval late Thursday to a significant overhaul of the state’s landmark 1967 behavioral health law, part of an ongoing effort to address a statewide mental illness crisis made worse by homelessness and illicit drugs, such as fentanyl and methamphetamine.

Senate Bill 43, introduced this year by Sen. Susan Talamantes Eggman (D-Stockton), expands the criteria for the detention, treatment and conservatorship of people with severe mental illness. Passed by the Assembly and the Senate, the bill advances to Gov. Gavin Newsom, who has until Oct. 14 to sign or veto the measure.

The bill is one of three passed by the Legislature on Thursday night aimed at transforming the behavioral health landscape in California. The others, championed by Newsom, place a measure on the March 2024 ballot to fund an increase in psychiatric beds and services across the state.

All three passed with overwhelming bipartisan support, a rare display of unity on one of California’s most vexing issues. Republicans and Democrats alike spoke of the need for serious changes to get mentally ill Californians the help they need.

Eggman’s bill represents a decades-long legislative effort to amend the Lanterman-Petris-Short Act, or LPS, passed when Ronald Reagan was governor. That law said someone could be detained against their will if they are “gravely disabled” or posed a danger to themselves or others.

“This is the year we got there,” said Eggman, who sees SB 43 as one of a series of legislative victories that have transformed mental health care in the state. “These have been the biggest five years for behavioral health in California — if not in the history of the state, then certainly since the 1960s.”

The measure was endorsed by a coalition of mayors, psychiatrists, physicians and the National Alliance on Mental Illness California, which said it provides counties with another tool for addressing an epidemic of mental illness.

It could be implemented county by county starting in January.

“Reforming LPS has been a goal since the 1980s, so this has been a long time coming,” said Rod Shaner, former medical director of the Los Angeles County Department of Mental Health. “SB 43 is the culmination of many bills and attempts to modernize core LPS language. Eggman has moved this bill further than many people thought likely.”

Critics, who include human rights and disability rights advocates, argue that SB 43 could undermine the civil liberties of Black, Indigenous and other communities of color, given the demographics of the state’s homeless population.

Others say the measure risks overwhelming a mental health system already stretched to capacity.

Deb Roth, a senior legislative advocate for Disability Rights California, said the bill “will lead to more use of conservatorship, which takes away people’s rights.” Roth testified against the bill before the Assembly Judiciary Committee.

Together with the CARE Act and Newsom’s initiatives calling for the reform of mental health services funding, SB 43 is part of a wave of change coming to California’s behavioral health laws.

SB 43 adds “severe substance use disorder” to the definition of gravely disabled, which had previously been defined as the inability to provide food, clothing and shelter. In addition to those categories, the law adds “personal safety and necessary medical care” as basic personal needs for compelling people into treatment.

Under SB 43, if evidence is found that a mental health disorder or substance use disorder is placing — or will place — a person’s physical or mental health at “substantial risk of serious harm,” crisis teams and mental health providers can initiate an involuntary hold that can lead to conservatorship.

The focus on substance use disorder — which adds to the focus that LPS places on “chronic alcoholism” — takes into account the “overlap of substance abuse and mental illness,” Shaner said. “Treating mental illness can’t be successful without tackling substance abuse.”

In addition, the new law gives conservatorship court more leeway in allowing testimony from expert witnesses, who may not have first-hand knowledge of a case.

Medical records, for instance, are often ruled as hearsay in court and inadmissible unless the doctor who wrote the report testifies.

SB 43 would go into effect in 2024, but counties can postpone implementation until 2026 amid concerns about the burden it might place on already crowded psychiatric facilities.

NAMI California, which endorsed SB 43, said in a statement that the bill is “essential” for those living with severe mental illness and their families by “modernizing the definition” of gravely disabled.

L.A. County Supervisor Kathryn Barger said she hopes the Department of Public Health — with its division of substance abuse prevention and control — will move urgently to put SB 43 into practice.

“We want to be methodical, but we don’t have that luxury,” she said. “People in communities are frustrated, and people are languishing in the streets.”

But the county’s Department of Health Services, which operates three hospitals with locked psychiatric emergency departments and inpatient psychiatric units, expressed concern about resources, saying in a statement that the law would pressure facilities to “discharge patients to sub-acute beds that don’t exist.”

The California State Assn. of Counties raised a similar concern. “Expanding the definition does not expand placements in a system already stretched thin. To truly realize an expansion of LPS, additional investments are needed for treatment, including locked facilities, workforce, housing, and step-down care options,” it said in a statement.

An estimated 171,000 people are homeless in California, and nearly 70,000 live in Los Angeles County. In 2019, it was estimated that as many as 76% of homeless people in the county could be affected by mental illness, substance abuse, poor health and physical disability.

Dr. Margot Kushel, who directs the Center for Vulnerable Populations at UC San Francisco, said she doesn’t believe the bill will be as effective as legislators hope.

“Eggman is right to bring attention to a big problem, but I don’t think changing the definition of grave disability will meaningfully address the problem it is trying to solve,” she said. “We already have very strong laws that allow us to hold people against their will, but that system is not functioning because at the end of the day we don’t have adequate housing or support for those people.”

Rachel Bhagwat, legislative advocate for the ACLU California Action, said that involuntary holds do not work in advancing treatment and instead “lead to processing people into the most restrictive and most expensive corners of the system.”

“We want to make sure people get the services they need, and while SB 43 was written with good intentions, it expands an approach that has failed and harmed our communities,” Bhagwat said.

The other key measures approved by the Legislature would amend the state’s Mental Health Services Act. AB 531 is a nearly $6.4-billion bond measure for the construction of mental health campuses, residences and permanent supportive housing. SB 326 would reallocate $1 billion from the act to operate the facilities. These high-profile bills will reform a primary funding stream for behavioral health in California.

When Eggman introduced SB 43 in March, she cited progress lawmakers had made addressing the escalation of homelessness and mental illness that had overtaken the state’s ability to provide meaningful treatment. But that work, she added, had “not made a huge dent in helping the most ill.”

An unwillingness to modify LPS stood in the way. That legislation, which went into effect in 1972, served as a model for similar bills written by other states interested in adopting a more progressive approach to behavioral health care, and for years, its landmark status made it difficult for California lawmakers to reform.

But now with SB 43 on Newsom’s desk, that fidelity to the past is gone. None too soon, according to Eggman.

“We were the most steadfast in holding to LPS — and not to our credit,” she said. “We had a part in not helping people and letting it go on for too long.”

California lawmakers approve key changes to landmark mental health law

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