State lawmakers eye forced treatment to address overlap in homelessness and mental illness

Reviewed by Lily Ramsey, LLMMay 17 2023

Many of the unhoused people in Portland, Oregon, live in tents pitched on sidewalks or in aging campers parked in small convoys behind grocery stores.

Mental illness can be part of the story of how a person ends up homeless — or part of the price of survival on the streets, where sleep and safety are scarce. Homeless people in Multnomah County, which includes Portland, die about 30 years earlier than the average American. These grim realities have ratcheted up the pressure on politicians to do something.

High housing costs and financial adversity are among the root causes of the burgeoning population on the streets.

About 1 in 3 people who are homeless in Portland report having a mental illness or a substance use disorder, and the combination of homelessness and substance use or untreated mental illness has led to very public tragedies.

People with schizophrenia, for example, have died of hypothermia on the city’s streets. One resident gave birth in a snowstorm to a stillborn infant. Methamphetamine, cheaper and more potent than it used to be, is creating a heightened risk of overdose and psychosis.

In Oregon, some politicians, including Portland Mayor Ted Wheeler, have proposed changing the civil commitment law so doctors have more leeway in compelling treatment for patients too sick to know they need care. Without such changes, they argue, people with untreated addictions or mental illnesses are stuck cycling between the streets, county jails, and state psychiatric hospitals.

“I think we can do better by people than allowing them to flounder,” said Janelle Bynum, a state legislator who represents suburbs southeast of Portland.

Bynum, a Democrat, signed on to a pair of bills, introduced by Republicans this year, that would expand the criteria for involuntary commitment in Oregon.

“My intention was to signal how cruel I think our current system is,” she said.

Half of the country’s unsheltered people live in California, and though only about a quarter to a third of homeless people are estimated to have a serious mental illness, they are the ones other residents are likely to encounter in California’s cities. Mayors from San Francisco, San Jose, and San Diego have all expressed frustration that the threshold for psychiatric intervention is so high.

'Why aren't you doing something?'

“When I’m often asked, ‘Mayor, why aren’t you doing something about this person who is screaming at the top of their lungs on the street corner?' and I said, ‘Well, they’re not a threat to themselves or to others,’ that rings hollow,” said Todd Gloria, mayor of San Diego.

Now, state lawmakers in Sacramento, backed by mayors, have introduced laws and bills that would help bring more people into treatment, even against their will.

Last year, legislators approved a new approach to mental health care — called CARE Court — that allows judges to issue treatment plans for people with certain diagnoses. That program begins on a pilot basis this fall in seven counties, including San Diego and San Francisco counties, with the rest of the state expected to join next year.

This year, a bill moving through the legislature would expand who qualifies for a conservatorship or involuntary psychiatric hold.

The bill is gathering support and sponsors are optimistic that Democratic Gov. Gavin Newsom will sign it if it passes. But it’s been controversial: Opponents fear a return to bygone policies of locking people up just for being sick.

Half a century ago, California policymakers shuttered state psychiatric institutions, denouncing them as inhumane. Involuntary commitment was de-emphasized, and state laws ensured that it was used only as a last resort. The thinking was that the patient should have autonomy and participate in their care.

But politicians across California are now reconsidering involuntary commitments. They argue that not helping people who are seriously ill and living in squalor on the streets is inhumane. Psychiatrists who support the bill say it would constitute a modest update to a 56-year-old law.

The shift is dividing liberals over the very meaning of compassion and which rights should take precedence: civil rights like freedom of movement and medical consent, or the right to appropriate medical care in a crisis?

“The status quo has forced too many of our loved ones to die with their rights on,” said Teresa Pasquini, an activist with the National Alliance on Mental Illness. Her son has schizophrenia and has spent the past 20 years being “failed, jailed, treated, and streeted” by what she called a broken public health system.

“We are doctors who have to watch these people die,” said psychiatrist Emily Wood, chair of the government affairs committee of the California State Association of Psychiatrists, a sponsor of the conservatorship bill, SB 43. “We have to talk to their families who know that they need that care, and we have to say we don’t have any legal basis to bring them into the hospital right now.”

Under current California law, a person can be held in the hospital involuntarily if they are a danger to themselves or others or if they are unable to seek food, clothing, or shelter as a result of mental illness or alcoholism. Doctors want to add other substance use disorders to the criteria, as well as an inability to look out for one’s own safety and medical care. (The state law defines what is known as “mental health conservatorship,” which is separate from the probate conservatorship that Britney Spears was under.)

Wood, who practices in Los Angeles, gave two examples of people she and her colleagues have tried, but struggled, to care for under the current rules. One is a man who doesn’t take his diabetes medication because he’s not taking his schizophrenia medication and doesn’t understand the consequences of not managing either condition.

Wood explained that even if he repeatedly ends up in the emergency room with dangerously high blood sugar, no one can compel him to take either medication under current law, because poorly managing one’s health is not a trigger for conservatorship.

Another man Wood described has a developmental disability that went untreated in childhood. He developed an addiction to methamphetamine in his 20s. Wood said the man is now regularly found sleeping in a park and acting inappropriately in public. His family members have begged doctors to treat him, but they can’t, because substance use disorder is not a trigger for conservatorship.

To Wood, treating these people, even when they’re unable to consent, is the compassionate, moral thing to do.

“It’s essential that we respect all the rights of our patients, including the right to receive care from us,” she said.

But other advocates, including some of those working for Californians with mental illnesses, see the issue very differently.

Lawyers from the nonprofit Disability Rights California said the proposed expansion of conservatorship and the ongoing rollout of CARE Courts are misguided efforts, focused on depriving people of their liberty and privacy.

Instead, they said, the state should invest in better voluntary mental health services, which help maintain people's dignity and civil rights. The group filed a petition in January to try to block the implementation of CARE Courts.

These advocates are particularly concerned that people of color, specifically Black residents, who are overrepresented in the homeless population and overdiagnosed with schizophrenia, will now be disproportionately targeted by more forceful measures.

“When people are told that they have to go to court to get what they should be getting voluntarily in the community, and then they get a care plan that subjugates them to services that still do not meet their cultural needs, that is not compassion,” said Keris Myrick, an advocate who has schizophrenia and has experienced homelessness.

More housing: Another badly needed prescription

Under current state law in Oregon, a person can be held for involuntary treatment if they are a danger to themselves or others or are at risk of serious physical harm because they cannot provide for their basic personal needs due to a mental illness.

Oregon, like California, does not include substance use disorders as grounds for commitment.

But its law is slightly broader than California’s, at least in one respect: Legislators amended it in 2015 to give doctors more leeway to step in if a person’s psychosis or other chronic mental illness is putting them at risk of a medical crisis.

Terry Schroeder, a civil commitment coordinator with the Oregon Health Authority, said that, before the change, a person would have to be nearly comatose or within a few days of death to meet the criteria for doctors to forcibly treat them for their own welfare.

The law now allows care providers to intervene earlier in an ongoing medical crisis.

In Oregon and California, the lack of adequate treatment options is frequently invoked in the ongoing debates over forced commitment and conservatorship.

“Expanding conservatorships doesn’t solve for those structural issues around the lack of housing and the lack of funding for treatment services,” said Michelle Doty Cabrera, executive director of the County Behavioral Health Directors Association of California.

Cabrera’s group also questions the premise that forced treatment works, and there is indeed little evidence that compulsory treatment for substance use disorder is effective, and some evidence that it could even be harmful.

Critics of involuntary commitment have questioned the California Legislature’s objectives. If the ultimate goal of forced treatment is to reduce homelessness — and ease the moral failing of ill people sleeping on the street or using drugs in the open — then lawmakers are writing the wrong prescription, they said.

“The problem of homelessness is that people don’t have housing,” said primary care physician Margot Kushel, director of the University of California-San Francisco’s Benioff Homelessness and Housing Initiative.

“If you had all the treatment in the world and you didn’t have the housing, we would still have this problem.”

Supporters of involuntary commitments say both are needed. Many of the California lawmakers backing expanded conservatorship and CARE Courts are also backing efforts to increase the housing supply, including a $3 billion bond measure for the construction of small, neighborhood-oriented residences for people with mental illness.

Nationwide, rents have risen more quickly than people’s incomes in the past 20 years, particularly impacting people who rely on a fixed income, such as monthly disability payments.