>>California’s New Plan to Treat the Mentally Ill May End Up Violating Their Rights

Facing enormous pressure to tame what appears to be a spiraling and increasingly intertwined statewide crisis in mental health, substance use, and homelessness, California officials have created the Community Assistance, Recovery and Empowerment Court, or CARE Court. The new system is a policy smorgasbord that ranges from the provision of court-ordered treatment and housing to food assistance, social activities, and exercise programming for Californians with severe mental illness.

CARE Court, which launched in October to skeptical but hopeful Californians, is aimed at tackling the Golden State’s perpetual public welfare emergency through a collaborative referral and treatment process. The plan, passed and signed into law by Governor Gavin Newsom in July, is currently being piloted in San Francisco, San Diego, and Orange counties, with Los Angeles County, which has the state’s largest homeless population, launching on Dec. 1. California’s remaining counties will implement CARE Courts by year’s end.

Going back to the early 18^th Century, American prisons and mental health wards have used coercive or involuntary treatment on their populations, while so-called drug courts, invented in the 1970s, often make enrollment into substance use treatment programs, like methadone, a condition for favorable adjudication terms. CARE Courts are presented as a more compassionate and flexible iteration, yet can still involuntarily retain patients under a variety of open-ended scenarios, while their ultimate value in solving California’s problems is very much open to question.

Confronting America’s largest homeless population

At face value, CARE Court seems like a completely logical, if not desperate, solution for a state with America’s largest homeless population, one larger than those of the next three states of New York, Florida, and Washington, combined.

Under the initiative, individuals with severe mental illnesses such as schizophrenia can be recommended, or petitioned, for CARE Court proceedings, and their case reviewed at a clinical evaluation hearing in concert with a public defender. If clinically substantiated, the individual, their counsel and supporters, and the county’s behavioral health agency collaborate on a “CARE Plan” that can fast-track the individual into treatment and link them to services to help them further stabilize. These resources include medications, counseling, and substance-use recovery and management resources. But what qualifies someone to make a petition on behalf of another person, setting in motion such a potentially life-altering process? CARE Court empowers virtually anyone in an individual’s orbit to make that call, including family members, roommates, healthcare and behavioral health providers, and first responders such as paramedics.

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California’s focus on integrating family members and other potential sources of social support like friends into this process, would seem to be a big advantage to this approach. However, it’s an advantage that potentially presents an exceptional burden on these supporters, namely when there are conflicting desires about how to help the individual. In short, CARE Courts embody the “too many cooks in the kitchen” paradox that often plagues modern clinical decision-making. And this feature, too, cuts both ways: Court officials have the latitude to remove an individual’s social supports—including those who may reject the individual’s enrollment in CARE Courts—from the proceedings if they feel they have a conflict of interest.

From the most basic civil rights perspective, CARE Courts would seem to run roughshod on the 14th Amendment of the U.S. Constitution, which says that no state can abridge the privileges of citizens or deprive them of due process. But what are privileges of citizenship and due process to someone with severe mental illness, whose idea of life and liberty may be so radically different from others’? These are just some of the sticky questions animating the otherwise promising CARE Court initiative.

Along these lines, multiple lawsuits—most arguing that the bill diminishes due process, personal liberty, and equal protection rights—were filed, and rejected, against Newsom before the effort even began. The effort nevertheless still faces legal headwinds similar to those that have recently upheld or reversed other landmark cases on medical rights, as concerns likely continue to mount over the extent to which CARE Courts genuinely support the recovery and stabilization of individuals in severe mental distress, vs. simply serving as political cover for decades of failed public policy.

The Faustian bargain of coerced treatment

Coerced treatment is one of the thorniest topics in modern psychiatry, with the American Psychiatric Association and practitioners long recognizing the Faustian bargain it always entails. This is particularly true when intent and medicine’s longstanding Hippocratic principle of “first, do not harm” is considered. When is the practice being used for patient wellness and public safety? And when is it used as a means of shielding families, law enforcement, businesses, and the public from the discomfort and fear that comes from the mere presence of homeless individuals and having to deal with people who have a severe mental illness?

U.S. law has generally supported an individual’s right to refuse medical treatment, but when competency is raised, things get fuzzy. And here we return to the question of choice and who gets to choose, for whom, and why. Human Rights Watch and California’s ACLU have framed the CARE Courts as an autonomy-crushing practice that will further advance the judiciary’s dangerous incursion into healthcare. Newsom, a Democrat who has flirted with the idea of running for president, made it clear he’s unphased by such criticisms as he seeks to improve the state’s diminished image. “Change has its enemies. I get it,” Newsom explained. “But one thing you cannot argue for, with all due respect to all the critics out there, is the status quo. You can’t. And in the absence of alternatives, what the hell are we going to do to address this crisis?”

In politics, doing something is almost always seen as better than doing nothing, and doing something new is almost always seen as better than staying the course. For that reason alone, CARE Court may have some lessons—both intended and not—for how we more broadly approach mental health policy across the country.

Roughly 90% of Americans believe the country is experiencing a mental health crisis. So, it’s no surprise that they may look at the most extreme manifestations of it—manic or zombified people loitering in their communities—in places like California and see initiatives like CARE Courts as, at worse, necessary evils.

Are CARE Courts coercive though? It depends on your lens. According to the law, an individual cannot be forcibly entered into treatment or required to take stabilizing medications. However, if an individual refuses to voluntarily take treatment, conservatorship can then simply be imposed at the discretion of court officials. And it’s under conservatorship where CARE Courts can then be used as a kind of medical blackmail without theoretically conflicting with their primary selling point to the public: creating options for some of our society’s most vulnerable people. And should things go awry, CARE Courts and their operators are essentially immune. The bill exempts counties or an employee of a county from civil or criminal liability for any action by a CARE Court patient, except in cases of gross negligence, which is notoriously hard to prove.

CARE Courts’ limited power

Yet for all of its testing of individual and constitutional rights, the CARE Courts’ actual ability to solve these core public health problems are quite limited. As Judge Michael Begert of the Superior Court in San Francisco recently explained, “it’s hopefully going to help some people who need some help, and it is probably not going to make a huge dent in what you observe in the community.” Down I-5 in Riverside County, another government official, focusing on the CARE Courts’ highly marketed focus on homelessness, noted, “the biggest thing we’ve learned is this is not the panacea to solve homelessness.”

And these modest expectations are perhaps not even modest enough. CARE Courts focuses only on diagnoses of schizophrenia and related “spectrum” disorders, all of which are difficult to diagnose. Respected Dutch psychiatrist Jim van Os went so far as to say schizophrenia, as constructed by the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders—psychiatry’s gold standard for diagnoses—doesn’t even exist. This notion has gained considerable traction in clinical ranks over the last decade. And many of the complex medications used to treat schizophrenia and related conditions have serious and common side effects, including weight gain and insulin resistance, which is a precursor to diabetes. Furthermore, schizophrenia and related disorders are greatly over-diagnosed in Black populations, who represent roughly one-quarter of California’s homeless population.

CARE Court embodies the idea of clinical “diversion,” an intervention that can stall one’s descent from untreated mental illness and substance use into homelessness and incarceration. But considering that California has done very little in the past three decades to corral its persistently high unemployment rates and address its chronically expensive and scant housing stock, the key reasons behind this multidimensional mental health crisis, CARE Court is far from preventive enough.

Homelessness is directly connected to the economic health and opportunity of a community. In turn, severe mental illness is a major risk factor for homelessness, and homelessness is connected to the worsening of mental illness symptoms and more intense substance use. Of the 15 cities with the highest cost of living in the US, five are in California, much of this tied to the state’s gilded tech sector and the housing bubble and gentrification that it has conjured. California also has the nation’s third-highest unemployment rate. Even modest political solutions to address these dynamics have been jettisoned. For example, Newsom recently vetoed employee protection bills that would have lengthened the period of time in which employers are required to notify employees of layoffs and axed bills aimed at supporting affordable housing projects and transitional housing for homeless LGBTQ+ youth.

As state officials and advocates implement CARE Courts, they must consider the potentially coercive and disenfranchising aspects of the initiative. They must also make space for community dialogue on its rollout—the good, the bad, and the ugly—to develop culturally tailored solutions that are attuned to communities’ experiences with the causes and accelerants of mental illness, and consider these as the primary, or at least simultaneous, intervention targets. The path to promoting more positive and affirming engagements with these vulnerable populations is by bringing greater attention to the clear institutional and social causes—unemployment, homelessness and deficient healthcare high among them— rather than the perhaps more visceral and morbid individual and community outcomes. This is likely to be CARE Court’s most prescient yet obvious lesson for the rest of the country.

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