Calif. Law Creates New Civil Court for People With SMI Facing Incarceration or Homelessness

A recent poll conducted by the University of Southern California Price School of Social Policy just prior to the 2022 primary elections in California indicated that 22.9% of potential voters identified homelessness as the number one problem in California. Approximately 20% to 25% of people experiencing homelessness suffer from a severe mental illness, according to a 2009 report from the National Coalition for the Homeless. As psychiatrists working in public psychiatry settings, we see firsthand the crisis of homelessness and its intersection with mental health in our state. California has more than 161,000 residents experiencing homelessness, according to a 2020 report from the state’s Department of Housing and Urban Development; approximately 40% reside in the Los Angeles area.

Every current prospective candidate for office in California has at least one proposal to solve this chronic humanitarian crisis that appears to be expanding. In March, Gov. Gavin Newsom suddenly proposed a new initiative targeting people with serious mental illness who are experiencing homelessness or incarceration. This blindsided the general public and triggered a scramble to better shape a skeletal proposal. The Psychiatric Physicians Alliance of California (PPAC), among others, became engaged by the administration for this purpose. SB 1338, sponsored by state Sens. Tom Umberg and Susan Eggman, abruptly became the legislative vehicle for this proposal. Disability and civil rights advocates strongly oppose the proposal due to concerns about a potential expansion of involuntary treatment. Furthermore, they argue that the law is antithetical to recovery principles, which are based on self-determination and self-direction; they additionally argue this law is based on stigma and stereotypes of people living with mental illness and experiencing homelessness. Disability rights organizations from more than 20 states registered their opposition. The very prominent Bazelon Center for Mental Health Law was also in opposition.

The initial proposal, CARE (Community Assistance, Recovery, and Empowerment) Court Act, eventually morphed into the CARE Act, which establishes a new civil court specifically designed to coordinate a voluntary “CARE plan” for adult patients who have “schizophrenia-spectrum and other psychotic disorders” (primary substance use disorders are excluded), lack medical decision-making capacity, are not currently clinically stabilized, and are unable to survive safely in the community. Each CARE plan will be developed based on an individual’s needs in consultation with behavioral health professionals and may include “medically necessary stabilization medications” but will not authorize involuntary medication. Individuals in the criminal justice system may qualify for referral, including those deemed incompetent to stand trial and those accused of minor offenses, pending adjudication. Family members, behavioral health professionals, judges, and social service agency representatives are authorized to refer patients. Re-direction to involuntary care may result when individuals fail to engage or do not “graduate” from the CARE plan after a maximum of two years.

New funding for housing is dedicated for participants if indicated by their CARE plan, thereby triggering a reshuffling of prioritized populations for housing; an increasingly diminishing pool of affordable housing may ultimately compromise implementation. Financial penalties imposed on counties for failure to implement the law initially garnered robust opposition by counties until new funding resources were included. Decades of inadequate funding for community-based services, along with prolonged and severe professional workforce issues acknowledged by many sectors and by Gov. Newsom’s administration, may also challenge implementation.

Last-minute amendments were designed to implement the CARE Act in a more iterative process and to address myriad costs that would have been the responsibility of counties. Start-up funding levels include $63 million for counties, self-help, and legal aid, and $40 million for court costs. In addition, an indemnification provision pertaining to professional staff was added. Health plans are to be held liable for services provided. Eight counties are slated to pilot the program one year prior statewide expansion. These additional amendments garnered the support of the California State Association of Counties, joining a few mental health organizations, including the PPAC and the California chapter of the National Alliance on Mental Illness (NAMI-California).

As psychiatrists working in public settings, we have grown accustomed to working with patients who refuse medications that would help them and who intermittently lack medical decision-making capacity. Involuntary treatment of psychiatric symptoms may be indicated for many patients who are identified for this program, but the absence of a provision to provide involuntary treatment under this new law remains problematic. Should outpatient medication adherence present a significant barrier to patient success through the CARE Act, California should consider modeling legislation after New York’s Kendra’s Law. Kendra’s Law, while being much less extensive in its scope relative to the CARE Act, authorizes court-ordered involuntary outpatient psychiatric medications and has passed constitutional muster.

The governor’s office estimates that a population of 7,000 to 12,000 individuals who meet the narrow criteria will benefit on an annual basis once implemented. Others estimate that a much higher number may benefit. SB 1338 was signed by Gov. Newsom on September 14.

A recent poll conducted in both Spanish and English by the Institute of Governmental Studies at UC Berkeley indicates that California voters overwhelmingly endorse this new state law by a 5-to-1 margin. This support emanates from all regions of the state and across party lines.

As is the case with many other new laws, there is an array of recommendations for improving this initiative emerging in the mental health policy landscape including an involuntary treatment provision. In addition, there are rumors circulating among a group of prominent legal advocacy organizations, which have previously succeeded in suing the state of California in regard to other mental health–related laws, that a lawsuit against the state is imminent to prevent the implementation of SB 1338. ■