Written Testimony on LPS Reform

Thank you for the opportunity to submit testimony to today’s hearing on the Lanterman-Petris-Short Act. As a sociologist who has been studying LPS for the last four years, I can see the merits of what different sides of this debate will argue today—namely, that the legal framework for involuntary mental health care in the state appears to leave many people without care, and that some services are lacking or underfunded. But neither new resources nor legal changes alone will address a fundamental lack of authority and accountability in the LPS system.

This testimony is based on over 200 interviews with stakeholders across more than 30 counties in the state, plus dozens of site visits to treatment providers and long-term observations with an intensive outpatient treatment team. I have also reviewed all state government reports on LPS reaching back to 1967, the academic literature, and over 600 newspaper reports on the law. A full report that is the basis for my testimony is available online (shorturl.at/oEIR5).

Legal changes are unlikely to be as impactful as advocates hope.

There is no doubt that police, ER physicians, inpatient psychiatrists, Public Guardians, and judges all evoke LPS criteria to justify why some individuals are denied care even when it is apparent they desperately need it. But my research shows clearly that the way professionals define legal criteria is not set through legislation or by the courts, but by available resources.

One police officer explained why her units frequently left gravely disabled people on the street: “It’s not that we can’t scoop up people. My kids could probably say ‘wow that person should have some help.’ A lot of these are obvious. But where do they go? How do we ensure they’re not back here in three days?” From the perspective of one psychiatrist, “We write ‘they don’t meet criteria,’ but what we mean is ‘no hospital wants this person, there are no beds.’”

There is other evidence that interpretations of legal criteria hinge on inpatient capacity. When LPS was passed, grave disability was seen as the easiest way to get someone into the hospital as a work around to strict new standards on dangerousness. Now it is generally viewed as the hardest, not because the definition has changed, but because with fewer available placements and intense oversight by insurance, priority goes to people at immediate risk. Both nationally and internationally, rates of involuntary treatment do not vary with the looseness or strictness of legal criteria, but the broader organization of the mental health system (for citations, see shorturl.at/gxU06). California’s nominally strict criteria do not stop it from having a higher rate of short-term holds than virtually any European country and most U.S. states.

On the other hand, most professionals believe the existing criteria could expand if there was increased capacity. As one LPS Public Defender put it, “We have 71 beds at [County Hospital]. If all 71 are filled up, then grave disability means one thing…If we built a second Acute Private Hospital tomorrow, we doubled our capacity for involuntary acute care, I think we would find that there’s actually now 142 people who meet the criteria for grave disability, and if we shrunk it down to 35, we’d find that a lot of people, it turns out, are not gravely disabled.”

More resources are welcome, but may not alone ensure that the neediest cases get served.

Most of the people here today are convinced that California does not have enough beds in highly-structured or locked settings. Many of the figures that get cited to support, including in the briefing paper for this meeting (and some of my older work), are incorrect. California has about the same number of psychiatric inpatient beds as the national average and only slightly fewer than the UK or Canada (shorturl.at/pCDQ6). The depth of need may mean that California needs to increase inpatient resources beyond that in other states or countries, but we need to shift from just talking about the number of beds to asking what kind of beds and operated by whom.

One consistent finding both from my interviews and available data from several large counties is that not all hospitals that take involuntary patients are equally willing to provide long-term care. Some interviewees described working in private hospitals where a management systematically denies requests to apply for conservatorship even when a treating psychiatrist thinks it is necessary. In Los Angeles, 12% of acute-care psych beds are in county facilities, but they account for 39% of referrals, while the for-profit facilities that run 54% of beds provide 22% of referrals. Although some of this may be driven by differences in the patient population, it’s clear that public facilities are more able to bear the huge financial losses that stem from keeping people waiting for a conservatorship.

This is only one of the ways California has delegated essential safety net services to private entities. Privatization has in some cases created exciting innovation and high-quality care, but can also result in the neediest people not getting served. For example, counties bid against one another for contracts with long-term care facilities (or IMDs), a majority of which are controlled by just two companies. The absurd result is that some conservatees who have an IMD in their county have to be sent hundreds of miles away because nearby IMD beds have been bought by a county willing to pay more. This system also gives IMDs enormous power to refuse people with co-morbid substance abuse, medical needs, or a violence history, for whom these patients are a financial and regulatory risk. Contracted outpatient providers can also refuse to serve particularly complicated clients.

The reality is that county behavioral departments, Public Guardians, and courts do not actually have authority over the LPS or conservatorship system. “People think we have a magic wand, but we are at the mercy of the operators,” one Public Guardian told me. Meanwhile, some of those operators feel that once they accept someone, the county might abandon them and stop working to step them to lower levels of care. No one is actually responsible for someone’s entire trajectory through the mental health system.

The State needs to play a role not just in providing funding or writing the law, but setting standards and establishing best practices.

None of the hundreds of people I interviewed could identify who in state government was specifically responsible for the implementation of LPS. My understanding is that the Department of Mental Health had an LPS office that provided technical assistance, but it closed in 2012 when the department was merged with DHCS.

The consequences for professionals, families, and service-users of this lack of direct engagement are dire. A psychiatrist in the state hospital told me he could forcibly medicate some of his patients but not others because counties interpreted the powers of conservators so differently. Families described having a family member hospitalized in one county, where staff told them their family member would die without a conservatorship, only to be told they did not meet criteria by the Public Guardian in their home county. Service users in one county might have regular contact and assistance from their Guardian, while others I spoke to didn’t even know their conservator’s name. Some reported experiencing months of delays in access to minimum comforts, like access to their social security check to buy snacks while locked in an IMD.

State government needs to have a dedicated office providing technical assistance and setting standards for the application of LPS criteria, alongside the Guardian’s professional association, the CAPAPGPC. There also needs to be greater clarity about the goals of involuntary treatment and conservatorship. Public Guardians I spoke to ranged from saying their focus was on just keeping people alive to viewing it as accompaniment towards independence and recovery.

New resources need to come with reorganization and funding for neglected parts of the continuum.

Many bills to expand the use of LPS or conservatorships have advanced without any funding attached for Public Guardians. Like everyone else in the continuum, Public Guardians are resistant to conserving more people both out of concerns for civil liberties and because they know that, without more funds, they cannot provide appropriate supports to new conservatees. In the past, county governments have suddenly deemed many people no longer gravely disabled and not needing conservatorship in response to budget cuts. Public Guardians need a stable, state budget stream.  

The state also needs to step in to regulate the zero-sum competition between counties for scarce beds, particularly in IMD/MHRCs (which also creates a huge administrative burden on facilities). It needs to ensure that facilities receiving public funds take people who are appropriate for their level of care, not just the clients of their choosing. At the same time, it should be actively cultivating innovative models, including from private companies, that currently rely on finite county realignment funds. That said, my research also makes it clear that truly public facilities—like state hospitals—need to be part of the continuum of care as a back-stop for people who might be refused or black-listed by contracted providers.

Investments in new capacity need to focus on quality and not just access to care. In nearly all studies, service users emphasize their desire to be respected and listened to by staff and incorporated into the decision-making process as much as possible, even when subject to involuntary care (shorturl.at/glxV6).

There is a need for more oversight, research, and investment in alternatives.

Many people in the conservatorship continuum have the ability to block a conservatorship, but no one has the authority to coordinate the system to put one into place if needed. Because of a lack of research, we don’t even know when conservatorship is the best intervention (shorturl.at/glxV6). Current reforms are advancing without any information about whether conservatorship is an effective tool for substance use or unmet medical needs, for example.

It would be a scandal if the state could not say how many people are incarcerated in California, but the reality is that we have no data on how many people are conserved, where they are, or what happens to them. As a result, we will have only anecdotal evidence if these reforms have an impact. We can’t have accountability without greater monitoring, oversight, and evaluation statewide.

Accountability also means making sure that potential conservatees are offered a full range of alternatives to LPS conservatorship, like FSPs willing to take people with the most serious conditions, early intervention into psychosis, assisted outpatient treatment, or psychiatric advance directives. New models, like community or outpatient conservatorship, deserve investment and study because they may reduce institutionalization while still providing intensive supports.

Conclusion: searching for consensus

As I show in a forthcoming paper (shorturl.at/sNQT0), the battle lines between those advocating for legal changes and those calling for more resources were drawn almost as soon as LPS was passed in 1967. Today’s hearing is unlikely to break that impasse. However, I hope consensus could be reached on some reforms to ensure greater accountability, quality, and a full-continuum of care for people receiving or at risk of receiving involuntary interventions. Thank you for your consideration.

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