GRAVELY DISABLED: THE VESTIGIAL PRONG OF 5150 DESIGNATIONS.

• Author: Byun, Diane Y.

TABLE OF CONTENTS

1. Introduction 192 II. understanding Section 5150 197 A. Actions Authorized by [section]5150 197 B. Elements of a Valid [section]5150 199 1. Probable Cause 199 2. Mental Health Disorder 200 C. [section]5150 Criteria 203 1. Danger to Self 203 2. Danger to Others 204 3. Gravely Disabled 204 III. "Gravely Disabled": Redundant & Duplicitous 205 IV. Protection Through Engagement 208 A. Stigma & Discrimination Reduction Initiatives 209 B. Volunteer 5150 Task Force 210 C. Restorative Policing & Restorative Court 212 V. Conclusion 214 I. INTRODUCTION

   Effective July 1, 1972, California's Lanterman-Petris-Short Act (the "LPS Act") set the precedent for modern mental health commitment procedures in the United States.(1) The LPS Act sought to, inter alia, "end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorder"; "provide prompt evaluation and treatment of persons with mental health disorders or impaired by chronic alcoholism"; and "guarantee and protect public safety."(2) Although the LPS Act eradicated the state's ability to indefinitely detain the mentally ill, persons with mental health disorders are still vulnerable to involuntary civil commitment, such as 72-hour involuntary psychiatric holds.(3)

   California legislature allows a person with a mental health disorder(4) to be involuntarily detained for a 72-hour psychiatric hospitalization if police officers(5) (also referred to as "police" or "officer") and certain mental health professionals(6) believe that, due to a mental health disorder, an individual is more likely than not to cause or suffer specific types of harm.(7) This type of custody is often referred to as a "5150 hold" named after the statute that authorizes it, section 5150 of the LPS Act.(8) Police officers are authorized to make a 5150 designation if an individual meets at least one of the following criteria, as a result of a mental health disorder: (1) danger to self; (2) danger to others; or (3) grave disability.(9) The focus of this Paper is the last of the criteria, to be "gravely disabled."

   California Welfare and Institutions Code section 5008(h)(1)(A) defines the term "gravely disabled" as a condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.(10) In practice, a police officer could determine there is probable cause to designate a person as gravely disabled because a person seems to be mentally ill and not eating enough or unable to maintain adequate housing (i.e. if an indigent person seems mentally ill).(11) Notably, the mere existence of a mental health disorder does not, in itself, justify a finding of grave disability.(12)

   The LPS Act does not require substantial evidence for an officer to make a 5150 designation of "gravely disabled".(13) Thus, it is vital to provide detailed guidance on how to properly designate an individual as "gravely disabled" because such cases rely on the word of the official who made the "gravely disabled" designation.(14) An individual must be designated gravely disabled simply by a preponderance of the evidence.(15) Each case must be decided on the facts and circumstances presented to the police officer at the time of the detention, and the police officer is justified in considering the past conduct, character, and reputation of the detainee.(16) In its current state, the California Welfare and Institutions Code fails to provide this essential guidance.(17)

   In first devising the "gravely disabled" standard, the California Subcommittee on Mental Health Services pointed to "exceptional emergency cases where the person is so disabled or so uncontrolled that he is incapable of participating in planning for his own needs."(18) An example provided by the subcommittee included a young man who becomes uncommunicative, refuses to eat or leave his room and begins to soil himself.(19) The final definition, however, has proven to be open to a wide range of interpretations.(20) With no consistent statewide policy on how to assess whether an individual is gravely disabled in the application of 5150 designations, California's 58 counties are left to interpret a hodgepodge system.(21) Specific examples on what types of situations fall under "gravely disabled" are not included within the statute, forcing each county to provide its own interpretation of 5150 designations to county police. (22) This dearth of practical instruction allows broad discretion on whether probable cause exists to designate an individual as gravely disabled.(23) Such subjective determinations can result in an individual being improperly designated as gravely disabled, regardless of an actual connection between the individual's mental health disorder and inability to provide for food, clothing, or shelter.(24) For example, in the case of In re Azzarella, the court found Riverside County was not justified in its certification of petitioner as gravely disabled because there was no evidence showing petitioner's homelessness was caused by his mental health disorder.(25) Petitioner had been homeless for approximately 10 years, was not malnourished, and showed no other adverse consequences from living on the streets.(26) While the County presented evidence of petitioner's mental health disorder, it failed to present any evidence that, as a result of the mental health disorder, the petitioner was unable to provide for his basic personal needs for food, clothing, or shelter.(27)

   The fragmented and inconsistent application of "gravely disabled" in 5150 designations harms persons suffering from mental health disorders, the very community the LPS Act sought to protect. Specifically, the inclusion of "gravely disabled" in 5150 designation criteria violates the LPS Act's legislative intent(28) in three ways:

   First, the LPS Act's goal of ending inappropriate and involuntary commitment of persons with mental health disorder is violated because police officers can find probable cause make a designation of "gravely disabled" under section 5150 if an individual is mentally ill and unable to provide for his or her basic personal needs, regardless of proof of an actual causal connection.

   Second, the LPS Act's goal of prompt evaluation and treatment of persons with mental health disorders is violated because the broad definition of "gravely disabled" produces an onslaught of potential patients being sent to LPS-designated hospitals with limited resources (e.g. lack of beds and psychiatric staff). Consequently, persons designated as gravely disabled (whether improperly designated or not) wait an inordinate amount of time for a psychiatric evaluation and/or a hospital bed.

   Third, the LPS Act's goal of guaranteeing and protecting public safety is violated because the inclusion of "gravely disabled" in 5150 designations indicates that the LPS Act provided the public with a duplicitous means of removing the mentally ill, impoverished, and houseless from the streets under the guise of "public safety." It is unclear whether the LPS Act sought to provide protection for the mentally ill, or to provide protection from the mentally ill. (emphasis added).

   This Paper suggests the following to remedy the effects of implementing the broadly defined "gravely disabled" in 5150 designations: (1) remove "gravely disabled" from the 5150 criteria; (2) integrate the community with mental health advocacy efforts by creating outreach and education programs; and (3) implement a client-centric approach to interacting with persons with mental health disorders through restorative policing and the establishment of a restorative court.

   This Paper will discuss the issues surrounding the inclusion of "gravely disabled" in 5150 hold criteria and will provide an amendment suggestion and community program recommendations in an effort to remedy the issues. Part I provides an overview and analysis of California Welfare and Institutions Code section 5150. Part II argues that "gravely disabled" should be removed from the 5150 designation criteria because it is (i) unnecessary due to its implicit requirement of harm to self; and (ii) a duplicitous means of removing impoverished and houseless persons from being visible in the community. Part III provides recommendations on how to protect persons with mental health disorders through (i) county-specific stigma and discrimination reduction initiatives; (ii) the creation of a volunteer task force dedicated to 5150-matters; and (iii) the implementation of restorative policing and the establishment of a restorative court.

2. UNDERSTANDING SECTION 5150

   1. Actions Authorized by [section] 5150

      Section 5150 allows law enforcement officers(29) and various medical professionals(30) to bring an individual to an LPS designated facility(31) for assessment, evaluation, and treatment for up to 72 hours(32) where there is "probable cause to believe that the person is, as a result of mental health disorder, a danger to others, or to himself or herself, or gravely disabled."(33) An LPS designated facility is a hospital facility designated by the county to evaluate and treat involuntary psychiatric patients and approved by the State Department of Health Care Services (hereinafter "LPS facility").(34) If a 5150-designated individual is taken to a non-LPS facility, the 5150 is incomplete and he or she must be discharged.(35) Notably, a 5150 designation only empowers police officers to detain and transport or cause the detention and transport of a person meeting 5150-specific criteria to an LPS facility to determine whether further mental health evaluation and treatment is necessary.(36) 5150 designation does not empower an officer to directly admit a person to an LPS facility for mental health treatment.(37)

      When a police officer takes a person into custody under section 5150 and presents that person to an LPS facility, he or she must provide a written...