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Should county seek conservatorship of mentally ill homeless population?


We see them everyday in practically every sector of Los Angeles County. Homeless persons obviously suffering from mental illness, many of whom pose  not only a danger to themselves, but to innocent persons who may come across them at the wrong moment.

What to do with this burgeoning population of persons who, by virtue of their illness, cannot be legally held responsible for their actions? The challenges are steep. Because these persons generally won’t agree to treatment, the Board of Supervisors is following the lead of its counterparts in San Francisco and in San Diego in proposing to institute conservatorship from the most “gravely disabled” living on our streets.

Defining ‘gravely disabled’

A new state law wants to change the expanding homeless dilemma. Introduced late last year by Assemblyman Miguel Santiago—whose 53rd District includes Downtown Los Angeles—and Laura Friedman (D-Glendale), AB 1971 would change the state’s definition of “gravely disabled” to include people who don’t seek necessary treatment because of mental illness. The move followed a motion by the LA Board of Supervisors suggesting a change in the Mental Health Act of 1967, commonly referred to as the Lanterman-Petris-Short Act (LPS), that recognized that not everyone with a mental illnesses needed to be confined to a state-run psychiatric hospital.

The 1967 law has become a valuable tool for law enforcement agencies and mental health professionals dealing with mentally ill people living on the streets. This is the well-known “5150” statute that applies an involuntary hold on persons who may pose a clear and present danger to themselves and others by virtue of their significantly diminished mental capacity. The new argument is that the 5150 provision needs to be expanded, thereby giving authorities wider latitude in deciding when someone should be removed from the streets.

The new attention to this issue may have begun when the 9th Circuit Court of Appeals held that enforcing criminal laws against homeless people living on the street was “cruel and unusual punishment” if a city couldn’t offer enough shelters as an alternative. The ruling struck down a Boise, Idaho ordinance that made it a misdemeanor to camp or sleep on sidewalks, parks or other places without permission.

SCOTUS hears arguments

The U.S. Supreme Court recently heard arguments dating back to 2009, when several individuals who had been cited or convicted under the Boise ordinance filed a complaint against the city, saying that the statute constituted cruel and unusual punishment, and therefore violated their 8th Amendment rights. The case would make its way through the legal system for nearly a decade before the 9th Circuit Court of Appeals made its ruling in September, 2018.

The appeals court unanimously overturned an earlier district court’s decision in favor of Boise in not only protecting the Boise’s homeless persons when sleeping on the street when there was no shelter, but did the same for homeless persons in nine other western states where the court has jurisdiction,  including California. Los Angeles County is one of several California regions that have supported the Boise ruling, and joined dozens of other municipalities in submitting an amicus brief urging the Supreme Court to hear the case.

Records show that in 2017, more than 800 homeless people died in LA County from medical conditions that are considered to be “preventable.” While there is no estimation of who among those persons were mentally ill, it is generally acknowledged by mental health practitioners that mentally ill people are least likely to perceive how dangerous and unhealthy their living environments are.

An ‘extra tool’ for law enforcement?

Under current law, people can be detained if they are deemed to be a danger to themselves or others, or are “gravely disabled” which is defined primarily as being unable to provide food, clothing, proper hygiene or shelter for themselves, or to understand the nature and severity of their illness. Such holds can be expanded up to a month, and eventually include conservatorship for more than a year.

Proponents of AB 1971 see the measure as an extra tool for law enforcement agencies, mental health professionals and outreach workers when they encounter someone fully unable to care for themselves. In January, Dr. Jonathan Sherin, LA County’s medical director, told the Board of Supervisors that the proposed new application of conservatorship is not an expansion of the term “grave disability” but, rather, a needed clarification that can better assist in helping those who have lost their way and are suffering in silence because of the stigma of being labeled mentally ill.

“It’s a red flag for us to recognize,” Sherin said. “It’s  an objective measure that judges will be able to use and properly apply by considering the data when they’re making a determination about whether someone is ‘gravely disabled.’”

The Los Angeles County Council of the National Alliance on Mental Illness supports the additional language. Critics, however, argue that without proper resources and support such as housing and case management, medical treatment will be wholly ineffective. Supervisor Sheila Kuehl is among those critics. She wonders if there are sufficient county resources to assist these persons once they are placed under involuntary conservatorship. Two years ago, Kuehl warned that about the county taking on the responsibility of deciding who is and isn’t severely impaired in advocating for the civil rights of mentally ill homeless persons who may refuse medication or other treatment.

Kuehl disapproves of ‘forced treatment’

“To sponsor legislation to amend Lanterman-Petris-Short so that being gravely disabled includes not seeking medical treatment imagines that there is somewhere to go and somewhere to stay,” Kuehl said. Not exactly a fan of “forced treatment,” Kuehl cast the board’s lone vote opposing the county motion.

“The medical establishment has made decisions for people, taking away their rights to make decisions for themselves in the past in some very egregious ways,” Kuehl explained. She wants more measures available that would protect the autonomy and civil rights of persons who may qualify for the hold—whether voluntary or not.

Her colleague, Supervisor Kathryn Barger, has been pushing for a more aggressive approach, similar to the views of her predecessor, Michael Antonovich, primarily in the name of public safety. She attests that such measures can be of great benefit to the mentally ill homeless.

“We really want to get  to the root [method] of trying to keep mentally ill homeless individuals from cycling endlessly between hospital emergency rooms, jail and the street,” Barger said. Both she and Kuehl  joined in the motion to review the law and the way it is put into practice in Los Angeles County.

In short, “gravely ill” means that someone cannot provide for own basic needs, including food, clothing and shelter, due to a mental disorder. Roughly 2,800 persons in the county are under LPS court-mandated conservatorship. An initial conservatorship is temporary and lasts for 30 days, while the court investigates the need for yearlong supervision. Of the more than 900 referrals in 2017, about two in three ended in a one-year commitment subject to annual review by the courts.

More than 50,000 homeless in LA County

All conservatorships—even those suggested by and agreed to by family members—are overseen by the county’s Office of the Public Guardian. The files are getting heavier by the year, with caseworkers there handling an average of 70 to 90 cases. With a reported excess of 50,000 homeless persons in LA County—and an estimated 30 percent of them declared to be mentally ill—authorities can find themselves overwhelmed. For instance, in 2016 the Los Angeles Police Department had eight crisis teams working the streets and wrote just over 4,000 holds. By 2019—with an additional nine more teams—they wrote in excess of 7,000 holds.

Outreach workers, who are often the first to find someone who is either suicidal or in the midst of a psychotic episode, must decide whether to call for help. Most say that the process—a forcible dislocation—can be worse than doing nothing at all. While these conservatorships may be characterized as declaring “eminent domain” over a human being, many case workers believe that such methods may jeopardize the rapport and trust they have established with their clients and can result in the loss of a tent or other possessions. At worst, outreach workers might lose contact with them altogether, thereby terminating a relationship that is critical to providing help.

The American Civil Liberties Union (ACLU) in both Northern and Southern California have voiced opposition to the idea of placing the mentally ill homeless under state conservatorship. The so-called “hardline” elements of the law fall far short of the standards of 8th Amendment protections, they attest, in emphasizing that none of the affected counties statewide have adequate facilities to house these persons once they take them off the streets.

Both ACLU chapters agree that increasing the power of government to assess and potentially commit homeless persons to hospital care come with ethical questions regarding consent. Those pushing for reform can expect a battle with patient-rights advocates, likely including the ACLU.