The debate over SB 1045 could use more research and data beyond a few much-cited statistics (like the number of people leaving PES without a referral or the lack of spots in intensive case management). This brief is based on research conducted over 18 months on long-term care and conservatorship in California. With a group of research assistants,[1] we interviewed 80 clinicians, public defenders, county conservators, and advocates in 20 counties. We reviewed the published literature and reports as well as administrative data on conservatorship. I also conducted 14 months of observations with an intensive case management team that worked with clients who had been or were at risk of being conserved. I also am able to compare my results on conservatorship in California with research on involuntary treatment in New York (including observations of 206 civil commitment hearings) and fifteen months of research in France.

This brief is not intended to take a position on SB 1045 but highlight some areas where available data raises questions about the reform or where useful data is simply lacking.

Existing Research

There is very little scientific evidence on the outcomes or efficacy of conservatorship, or consensus on what those outcomes should be. The last published research that looked at outcomes from LPS conservatorships is based on data from the late 1980s.[2] County conservators range from viewing conservatorship as a permanent guardianship for individuals who will never improve to a tool to promote recovery. Its efficacy in achieving either has not been evaluated by any actors at the state and county level, as far as we can determine. However, in most counties, fewer than a quarter of conservatees graduate to lower levels of care each year.

Some of the evidence being cited in favor of SB 1045 is weak or not relevant. The Mayor’s plan for implementation of SB 1045 and public statements often suggest that new ‘Housing Conservatorships’ will benefit from the ‘black robe effect’—the power of judges to encourage treatment compliance. Meta-analyses of clinical studies on involuntary court-ordered outpatient treatment found “little evidence”[3] it was effective on key indicators like hospitalizations, functioning, or quality of life. Most of the positive evidence for programs like AoT is from New York,[4] where the measure has a strong enforcement mechanism in a system with nearly twice as many inpatient beds and which reaches double the proportion of the population as California’s.[5]

Concerns with SB 1045

Public Defenders raise serious questions about the effectiveness of legal protections for conserved clients. Because the state appears to provide no regulation or oversight for conservatorship, protections for conservatees depend on the courts. Some Public Defenders who worked with LPS cases described being treated like lawyers taking a “break” from “real” criminal cases. One result of the low status given to this work is that, in many counties, 75% of conservatorship hearings are uncontested.[6] Attorneys may not always have the time or the training to work with clients to determine if they are really consenting to conservatorships. Attorneys felt that hearings were largely pro forma and that having already been conserved created a “presumption of guilt” in renewal hearings. Although this largely reflects that counties are very judicious in filing conservatorship petitions, one study found that in only one out of 298 cases was a conservatorship petition not granted based on a contested hearing.[7] The city should consider models like New York’s Mental Hygiene Legal Services, a group of attorneys specifically dedicated to and specialized in representing the mentally ill full time, which could enhance representation of conservatees.[8]

5150s are a problematic measure of clinical needs. Ethnographic research with ambulance drivers, police officers, and homeless individuals by my colleagues Professor Josh Seim[9] and Chris Herring show that 5150s are used for a range of non-clinical purposes, like avoiding time-consuming bookings, clearing out homeless persons, resolving citizen complaints, or re-directing persons based on hospital overcrowding. My own interviews with a dozen psychiatric ER clinicians document their frustration with what many see as unjustified 5150s used to burden-shift difficult cases between professionals. There are four-fold differences in rates of 5150s by counties within the Bay Area, which are driven by police practices, not clinical need. Repeated 5250 holds, imposed by psychiatric professionals, might be a better measure of need for a conservatorship.

The Central Role of Placement Availability

The use of conservatorship is declining in California because of a lack of placements, not an overly-strict legal standard. According to (incomplete) data from the Department of Health Care Services,[10] the number of permanent and temporary conservatorship petitions have fallen by two-thirds since 1990. Interviewees were clear that the (lack of) availability of placements drove this process. Judges are reluctant to conserve individuals who might remain in inappropriate locked placements. Hospitals are unwilling to admit persons who they may be forced to keep at an administrative rate for lack of a step-down option. No interviewee suggested that judges were applying the “grave disability” standard in a stricter fashion than in the past.

Temporary and Permanent Conservatorships in California (FY 1990-2015)

The individuals SB 1045 targets may not be conserved, regardless of the reform, because they are the most difficult to place. County conservators consistently stated that it was increasingly difficult to find placements for individuals with dual-diagnosis substance abuse issues, complicated medical needs, and criminal justice and/or violence histories Private facilities saw them as demanding extra resources and subjecting them to potential licensing violations. Some counties worried that trying to force these individuals into inappropriate institutions would jeopardize placements for other conservatees. In the context of competition between counties for a limited number of locked beds, San Francisco will continue to struggle to place SB 1045 conservatees who are financially unappealing to private operators.

‘Housing Conservatorships’ is an inaccurate description of SB 1045. Most counties we spoke with do not place LPS conservatees in levels below an Adult Residential Facilities, in part because judges will not accept a placement into Permanent Supported Housing. We estimate that fewer than 10% of conservatees statewide are in this lowest level of care. Our interviewees in San Francisco largely concurred that the SB 1045 population will need placements consistent with ‘regular’ conservatorships, which usually means locked facilities or Board and Care homes. Since SB 1045 requires San Francisco to certify that it has sufficient resources to meet these clients’ needs before implementation, this certification should include an assessment of the availability of dual-diagnosis IMD and Board and Care placements.

Broader Reforms

Around the state, clinicians believe that higher levels of care are needed. Contrary to what some advocates have argued, most of the inpatient and outpatient clinicians we spoke with insist that there are clients who are not on conservatorship who would benefit from higher levels of care and for whom voluntary services alone are insufficient. But most of them are skeptical of SB 1045 because it seeks to mandate people into levels of care that do not currently exist. Many county conservators feel that their own expertise has not been included in debates on SB 1045.

Many policymakers believe that LPS needs to be expanded to include involuntary care for substance use disorders. 33 states already have laws that allow for civil commitments for substance use disorders. Most states use them very little or not at all. California should consider why these laws do not seem to be effective responses to substance abuse in other states.[11]

The county should consider alternative models more broadly. “Intensive” doesn’t necessarily mean “involuntary.” Most countries around the world have found that a higher number of inpatient psychiatric beds actually reduces the need for involuntary care.[12] Some, like France, consider the ratio of voluntary to involuntary hospitalizations to be an important metric of the system’s success. Even involuntary placements could be made more respectful of individual rights if California followed other states and adopted tools like Psychiatric Advance Directives.

I am grateful for the busy and dedicated professionals who took the time to speak with me for this research. I submit this brief as part of a shared commitment to improving outcomes for some of society’s most vulnerable individuals, regardless of the outcome of SB 1045. I am open to feedback on or corrections to this ongoing research.

[1] I am grateful to Sierra Timmons, Michael Long, Jessica Cohn, Didi Wu, Kimberly Nielsen, and Amritha Somasekar for their assistance.

[2] Lamb, Richard H. and Linda E. Weinberger. 1992. “Conservatorship for Gravely Disabled Psychiatric Patients: A Four-Year Follow-Up Study.” American Journal of Psychiatry (149):909–13.

[3] Kisely, Steve R. and Leslie A. Campbell. 2014. “Compulsory Community and Involuntary Outpatient Treatment for People with Severe Mental Disorders.” in Cochrane Database of Systematic Reviews. John Wiley & Sons, Ltd.

[4] Schneeberger, Andres R., Christian G. Huber, Undine E. Lang, Kristina H. Muenzenmaier, Dorothy Castille, Matthias Jaeger, Azizi Seixas, Julia Sowislo, and Bruce G. Link. 2017. “Effects of Assisted Outpatient Treatment and Health Care Services on Psychotic Symptoms.” Social Science & Medicine 175:152–60.

[5] Source: SAMHSA Uniform Reporting Services (2017)

[6] Morris, Grant H. 2009. “Let’s Do the Time Warp Again: Assessing the Competence of Counsel in Mental Health Conservatorship Proceedings.” San Diego Law Review 46:283–342.

[7] Ibid.

[8] Shea, Sheila. 2012. “The Mental Hygiene Legal Service at 50: A Retrospective and Prospective Examination of Advocacy for People with Mental Disabilities.” Government, Law, and Policy Journal 14(2):35–41.

[9] Seim, Josh. 2017. “The Ambulance: Toward a Labor Theory of Poverty Governance.” American Sociological Review 82(3):451–75.

[10] Data drawn from https://www.dhcs.ca.gov/services/MH/Pages/InvoluntaryDetention-MH.aspx. Note that San Francisco’s data reported to the state is not coherent.

[11] Christopher, Paul P., Debra A. Pinals, Taylor Stayton, Kellie Sanders, and Lester Blumberg. 2015. “Nature and Utilization of Civil Commitment for Substance Abuse in the United States.” Journal of the American Academy of Psychiatry and the Law Online 43(3):313–20.

[12] Allison, Stephen, Tarun Bastiampillai, and Doris A. Fuller. 2017. “Should the Government Change the Mental Health Act or Fund More Psychiatric Beds?” The Lancet Psychiatry 4(8):585–86; Gandré, Coralie, Jeanne Gervaix, Julien Thillard, Jean-Marc Macé, Jean-Luc Roelandt, and Karine Chevreul. 2017. “Involuntary Psychiatric Admissions and Development of Psychiatric Services as an Alternative to Full-Time Hospitalization in France.” Psychiatric Services 68(9):923–30.