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| Photo illustration by Slate. Photos by Jcomp/Getty Images Plus and ENTphotography/Getty Images Plus. |
Clio Sady doesn’t remember how many times the police took her to the hospital. They’d find her, loaded down with plastic bags, bantering with strangers or taking off her clothes, and bring her to the ER in a spit hood. There she would be strapped down, forcibly injected with a “booty shot” of anti-psychotic drugs, and detained for days or weeks under California’s conservatorship law.
You may be more familiar with the 14-year conservatorship of Britney Spears, which was ended in November by a Los Angeles County judge. The saga has drawn the country’s attention to the opaque process by which Americans can be compelled to forfeit their liberties, including choosing their own medical treatment, because a judge has decided they are unfit to care for themselves. The #FreeBritney movement was international news. Sens. Elizabeth Warren and Bob Casey demanded national data on conservatorship, and journalists told stories of abuse. Free Britney, reformers said. Free them all.
In California, however, the wind has been blowing the other way. Prompted by the growing number of homeless people in visible mental and physical suffering, lawmakers have been trying to make it easier, not harder, to force residents into the state’s care. Under that controversial process, which begins with the kinds of police-initiated hospital stays that Sady endured, a court can appoint a guardian to compel medical treatment, including placing a person in a locked psychiatric unit for periods of months or years. It is the state saying: You are unable to take care of yourself, so we are going to do it for you.
The year Sady’s episodes started, 2016, California initiated more than 200,000 of those short-term “holds”—known as 5150s (72 hours) and 5250s (two weeks), for their numbers in state statute. Sady’s experience was typical in that many people are detained over and over again. That is evidence of something that just about everyone in California agrees on: The nation’s largest state is failing its citizens.
What to do about it is another story. Public anxiety about homelessness and mental illness in California is at an all-time high, and the crisis at the intersection of the two issues is particularly acute. They’re linked by what some psychiatrists call a “never-ending loop” in which homelessness and mental illness reinforce each other. It’s harder for someone to take care of themselves when they don’t have a safe, warm place to sleep every night, and it’s harder for someone to find and keep a job and an apartment when they don’t have access to the medication they need. Thanks to a dearth of such support, plus easy access to drugs like alcohol, meth, and heroin, the inescapable distress and misery on the streets of California cities has become the state’s great shame.
Some politicians, physicians, and homeless service providers say these revolving-door cycles of arrest and hospitalization show that it needs to be easier to convert short-term “holds” of disabled, homeless Californians into long-term conservatorships.
“Conservatorship allows us to provide the wraparound services needed to stabilize people suffering from severe mental health and substance use issues, and help them begin their recovery to get their lives back on track,” San Francisco Mayor London Breed said in 2019. “Allowing them to deteriorate on our streets when they are incapable of caring for themselves is not humane.”
Civil rights advocates and many people with disabilities counter that long-term conservatorship is unethical and illegal, particularly in the absence of voluntary access to housing, medication, and drug treatment. Susan Mizner, the director of the disability rights program at the ACLU, has said that conservatorship is America’s “most extreme deprivation of civil liberties, aside from the death penalty.” But even practically, she told me, studies have shown that coerced treatment is not better than voluntary treatment. “We haven’t provided them the support. If we’d spent six months saying, ‘Here’s housing, here’s support,’ and that has failed? Then we can discuss.”
Sady has her bipolar disorder under control now, thanks to regular access to medication in her Oakland neighborhood. But she did not mince words when she talked about the state’s psychiatric “holds” that kept her confined in the hospital for days on end. “I would not wish it on my worst enemy,” she said.
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Legally, Britney’s conservatorship was in a different category from the more common procedure for Californians suffering from a “grave disability” or deemed to be a danger to themselves or those around them. Spears was under a “probate conservatorship,” a court-mediated arrangement begun and managed by family for someone thought to be unable to handle their own affairs. Conservatorship under California’s Lanterman-Petris-Short Act, by contrast, often starts with short-term psychiatric holds initiated by police but must be ultimately initiated by a county judge.
Ethically, however, the questions are not so far apart. When does a person lose their right to care for themselves? At one time, it took as little as a parent’s affidavit to have a kid committed for life. The enduring document of midcentury America’s approach to mental health is Ken Kesey’s One Flew Over the Cuckoo’s Nest, which depicts an asylum of abusive authority figures and patients with varying degrees of mental divergence. In California, reformer Frank Lanterman recalled in 1982, the average court hearing for committing a person to a psychiatric institution lasted five minutes.
The backlash to that system came to California in 1967 with the Lanterman-Petris-Short Act, which established the process of short- and long-term holds as a precursor to eventual conservatorship for people who are “gravely disabled.” Its civil rights protections were a direct reaction to what had come before, and part of the national trend of “deinstitutionalization” that diminished the size and importance of state mental hospitals.
Many advocates hoped state asylums would be replaced by community facilities where patients could get more flexible treatment, but budget cuts and a shift toward the private sector meant that the per capita number of long-term beds for psychiatric care plummeted from its midcentury high and never recovered. Instead of a victory for civil liberties and community care, deinstitutionalization came to be associated with the withdrawal of public aid.
In a landmark study of the NYC homeless in 1983, the sociologist Frank Lipton declared the movement a failure: “We should not continue to deceive ourselves that we have deinstitutionalized these patients; rather, we have created a new institution—an asylum without walls in which the homeless psychiatric patient is disgracefully abandoned to meander like a vagabond.”
Fifty years after LPS, the pendulum has swung back. Jocelyn Wiener, a journalist with CalMatters, has written a series of heartbreaking stories on families’ fruitless quest to get the state to take responsibility for its disabled citizens. One of her subjects is a man named Mark Rippee, who received a traumatic brain injury in a motorcycle accident decades ago and is now homeless. Unable to have him conserved—entrusting his care to a public guardian—his sisters rely on a 2,000-person Facebook group devoted to keeping them aware of his whereabouts. Elsewhere, parents are forced to call 911 on their own children and exaggerate their conditions to persuade police, hospitals, and courts to bring them into the system.
In 2019, Gov. Gavin Newsom signed a law that was supposed to ease the path to conservatorship in the state’s largest cities, where homelessness has both exacerbated mental illness and made it highly visible. In the three years since, San Francisco has used its new authority to conserve just two people. Advocates always knew the bill would target a relatively small number of people with serious problems, among the larger homeless population. But not that small.
“It is a gross dereliction of civic duty,” says Rafael Mandelman, a San Francisco supervisor, of what he sees on the streets of his city. “We are not conserving a whole bunch of people who we should.” Conservatorship is personal to him: His mother suffered from psychosis and spent time homeless before ending up conserved. “It left me with a real impatience for people unwilling to acknowledge that we have folks who need that higher level of care,” he said. “I have confidence that we’ll expand [conservatorship law]. It will take more than a decade for reform, and thousands of people will go without the help they need.”
Mandelman argues that San Francisco General’s many repeat customers—during one four-month period, nine people visited the psych ER 168 times—are evidence that long-term conservatorships are too hard to establish: “If interactions with law enforcement are traumatizing, and I have no doubt they are, they’re being subjected to constant trauma—the worst things you’d be concerned about with involuntary treatment, without any of the benefits.” (Or possibly even worse: As state Sen. Scott Wiener, who sponsored the 2019 conservatorship measure, put it a few years ago, “We do have a very large conservatorship program in California—it’s called jail.”)
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Why does the state’s program fall short? One of the experts on California’s conservatorship is the sociologist Alex V. Barnard, who teaches at New York University. Barnard has spent years talking to people up and down the conservatorship chain, and his report on the subject is essential reading for anyone who wants to understand the byzantine process that ends with involuntary medical treatment in a locked bed.
One answer is a predictable one: A lack of resources shapes decision-making, from crowded long-term care institutions to overworked public guardians to frenetic hospital emergency rooms to worried parents. Many on the pro-conservatorship side want to lower the bar for what constitutes a “grave disability.” And it’s true, Barnard said, that the bar can be very high: “In some counties, if you can open a water bottle, if you can pitch a tent, if you are able to get a sandwich to your mouth, you’re not getting conserved.”
But it’s not judges, for the most part, who are rejecting conservatorship candidates. Rather, this winnowing is the function of a highly stressed system, Barnard observed, in which a strained supply of long-term care beds pushes nondecisions down the chain. “The placement tail ultimately wags the conservatorship dog,” he writes.
The court knows the public guardian will have nowhere to put a conserved man. The hospital, facing pressure from the insurance company, puts that man back on the streets instead of sending him to court. The police will have foreseen all this and will not bother to take the man into the hospital, and a worried neighbor who knows the drill won’t make a call. There is no oversight, and no one person or agency that has responsibility for the system from start to finish. And so the revolving door of psychiatric holds spins on.
Opponents of conservatorship say politicians and public health officials are leaping to implement an extreme solution because they have failed to provide more fundamental services. “People are taken away from their home, their community, and their support system, and that’s another form of displacement happening alongside the eviction crisis,” said Raia Small, an organizer with Senior and Disability Action in San Francisco. How much of this debate would be superfluous had the state properly addressed people’s need for housing, psychiatric care, and drug treatment years ago? Or if it did so tomorrow?
Many anti-conservatorship advocates also express concerns about the quality of care in the private institutions whose beds house conserved patients. They point to a 2020 California audit of Lanterman-Petris-Short, which concluded that the problem was not a reluctance to conserve, but a broken and underfunded system. The number of facilities with inpatient psychiatric beds has fallen by 20 percent since 1995, even as the state’s population has increased.
And the most vehement arguments in favor of conservatorship make it seem like a tactic to institutionalize the homeless for the crime of being unable to afford an apartment. “If homeless people will not voluntarily walk through the many doors open to assist them, it’s time to drag them in,” Robert Austin, a retired lieutenant with the Sacramento Police Department, wrote in 2020.
It’s hard to dispute that California has failed to offer some pretty basic aid to people living on the street, from a safe, warm place to sleep to food itself. But those who work most closely with mentally disabled homeless people say that failure is many years in the making, almost intractable. “We need an extreme step right now if we truly care about the 70,000-plus people suffering the devastation and death of homelessness,” said Andy Bales of the Union Rescue Mission on Los Angeles’ Skid Row, the 54-block area that is home to one of the largest concentrations of homeless people in the world. (The most recent survey of Los Angeles County, from nearly two years ago, counted more than 66,400 homeless individuals.) Bales said: “That anti-conservatorship argument seems like a smoke screen. It’s not talking about where do we go from here. It’s easy to say, ‘Well, if we would have done it right from the beginning … ’ ”
In
other words, affordable housing and accessible health care might indeed
have kept many people off the path toward conservatorship. But that’s
not the path we took. And here we are, said Bales, with tens of
thousands of people living on the streets of Los Angeles, a number that
is growing even as four of them die every day.
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