Assemblymember Holden
Chair, Assembly Appropriations Committee
1021 O Street, Room 8220
Sacramento, CA 95814
Re: Human Rights Watch’s Opposition to SB 43 as amended July 13, 2023
Dear Assemblymember Holden,
Human Rights Watch has carefully reviewed SB 43[1]
and the amendments to SB 43 and must respectfully voice our strong
opposition. SB 43 expands the definition of “gravely disabled”
increasing the number and categories of people eligible for involuntary
hospitalization and conservatorship and lowers the legal standards for
conservatorship proceedings. We urge you to reject this bill and instead
to take a more holistic, rights-respecting approach to address the lack
of resources for autonomy-affirming treatment options and affordable
housing.
Proponents of SB 43 rightly raise that too many Californians are living without adequate housing and appropriate treatment.[2]
However, this bill does not propose workable solutions, address the
structural causes of houselessness, or provide rights-respecting
treatment.
Instead, this bill expands the circumstances[3]
under which the State can deprive people of their autonomy and liberty,
making it easier to remove both housed and unhoused people from
society.[4] Given the racial demographics of California’s unhoused population,[5]
and the barriers to adequate mental health care faced by Black,
Indigenous, and people of color (BIPOC) communities regardless of
housing status [6] this plan is likely to disproportionately place many BIPOC Californians under state control.
Involuntary Treatment is Ineffective
SB 43 loosens the legal standard required to force a person into
involuntary hospitalization and conservatorship. It does so by expanding
the definition of “grave disability” to include additional reasons for
involuntary holds and conservatorship, including a “severe substance use
disorder.”[7]
Conservatorship can potentially strip an individual of their legal
capacity and personal autonomy, subjecting them to forcible medical
treatment and medication, loss of personal liberty,
institutionalization, and removal of power to make decisions over the
conduct of their own lives in violation of international human rights
law.[8]
This involuntary approach not only robs individuals of dignity and autonomy but is also likely ineffective.[9] Studies of involuntary mental health treatment have generally not shown positive outcomes.[10]
Evidence does not support the conclusion that involuntary outpatient
treatment is more effective than intensive voluntary outpatient
treatment and, indeed, shows that involuntary, coercive mental health
treatment is harmful.[11]
Similarly, studies of court ordered substance use treatment have also not shown positive outcomes.[12]
Indeed, studies have correlated coerced treatment to increased
occurrence of overdoses and relapse compared to voluntary treatment.[13]
Involuntary treatment is not an effective means of addressing mental
health conditions or harmful use of substances. Instead, this approach
risks traumatization and discouraging individuals from seeking out
voluntary treatment in the future.
Involuntary Treatment Violates Human Rights
Under international human rights law, all people have the right to
“the highest attainable standard of physical and mental health.”[14] Free and informed consent, including the right to refuse treatment, is a core element of that right to health.[15]
Having a “substitute” decision-maker, including a judge, make orders
for health care can deny a person with disabilities their right to legal
capacity and unnecessarily and unduly infringe on their personal
autonomy.[16]
Under the Convention on the Rights of Persons with Disabilities,
governments should “holistically examine all areas of law to ensure that
the right of persons with disabilities to legal capacity is not
restricted on an unequal basis with others. Historically, persons with
disabilities have been denied their right to legal capacity in many
areas in a discriminatory manner under substitute decision-making
regimes such as guardianship, conservatorship, and mental health laws
that permit forced treatment.”[17]
The US has signed but not yet ratified this treaty, which means it is
obligated to refrain from establishing policies and legislation that
will undermine the object and purpose of the treaty.[18]
Such actions include creating provisions that mandate long-term
substitute decision-making schemes like conservatorship or court-ordered
treatment plans.
The World Health Organization has developed a new model that
harmonizes mental health services and practices with international human
rights law and has criticized practices promoting involuntary mental
health treatments as leading to violence and abuse, rather than
recovery, which should be the core basis of mental health services.[19]
Recovery means different things for different people but one of its key
elements is having control over one´s own mental health treatment,
including the possibility of refusing treatment.
In its most recent session, the United Nations General Assembly took
note of the World Health Organization’s model and adopted a resolution
on mental health and psychosocial support echoing many of these themes.[20]
This resolution acknowledged that “good mental health and well-being
cannot be defined by the absence of a mental health condition but rather
by an environment that enables persons to live a life within which
their inherent dignity is respected.”[21] It also urged member states to eliminate “medical institutionalization and overmedicalization”[22]
and instead create conditions where people with disabilities are able
to live independently with a range of voluntary supported
decision-making mechanisms available to them.[23] In contrast, SB 43’s involuntary process does not center the dignity of the person.
Further, to the extent SB 43 would perpetuate racial disparities, it
also risks violating international law. Under the International Covenant
on Civil and Political Rights (ICCPR), which the United States has
ratified, all persons are equal before the law and are entitled without
any discrimination to the equal protection of the law.[24]
The International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), which the US has similarly ratified, prohibits
governments from engaging in acts or practices of racial discrimination
against persons, groups of persons, or institutions.[25]
ICERD further imposes the obligation on governments to take effective
measures to amend, rescind, or nullify any laws that have the effect of
creating or perpetuating racial discrimination.[26]
To comport with human rights, treatment should be based on the will
and preferences of the person concerned. Disability or housing status
does not rob a person of their right to legal capacity or their personal
autonomy. Expansive
measures for imposing treatment, like the process that SB 43 proposes,
infringe on the right to health and discriminate on the basis of
disability.
SB 43 Creates Due Process Concerns
The bill expands the definition of ‘gravely disabled’ in a way that
creates confusion and will lead to people being detained against their
will. It will also deprive people of their fundamental rights to privacy
and liberty without offering voluntary community-based services.
The redefinition of “grave disability” in SB 43 encompasses multiple
alternative rules and sets of criteria, rather than a single set of
criteria or legal standard. SB 43 also includes vague terms that have no
commonly understood meaning. For example, one set of proposed criteria
for meeting the definition of “gravely disabled” under SB 43 includes
evaluating whether a person can “provide for their basic personal needs
for food, clothing, or shelter, personal safety or necessary medical
care.”[27]
There are no commonly understood meanings to the terms personal safety
or necessary medical care, and the subjective, circular definitions[28]
offered by SB 43 fail to create clear standards upon which those making
these assessments may base their determinations. This lack of guidance
creates an improper risk of arbitrary and discriminatory decision-making
unmoored from consent, in violation of international human rights law. [29]
Additionally, SB 43 would create an exception[30]
to normal hearsay rules for health practitioner statements in medical
records discussed by an expert witness during conservatorship
proceedings. The creation of this new hearsay exception will further
erode the due process rights afforded to individuals in conservatorship
proceedings and violates the human right of access to justice.[31]
SB 43 threatens to create a separate legal track for people with
mental health conditions and harmful use of substances, without adequate
process, negatively implicating basic rights.[32]
Even with stronger judicial procedures, this program would remain
objectionable because it expands the ability of the state to force
people into involuntary treatment.
SB 43 Will Harm Unhoused and BIPOC Community Members
Despite the rhetoric of its proponents,[33]
SB 43 will not help unhoused community members living with untreated or
undertreated mental health and harmful substance use conditions.
Decades of research shows that treatment is far more effective when
individuals are safely housed in permanent affordable housing.[34]
In contrast, expanding involuntary treatment mechanisms that risk
enmeshing people in cycles of institutionalization, without housing
support, will only serve to destabilize them and their communities.
Due to a long history of racial discrimination in housing,
employment, access to health care, policing, and the criminal legal
system, people from BIPOC communities have much higher rates of
houselessness than their overall share of the population.[35]
SB 43 in no way addresses the conditions that have led to these high
rates of houselessness in communities of color. Instead, it proposes a
system of state control over individuals that will compound the harms of
houselessness.
Further, extensive research shows that due to bias, misinterpretation
of trauma, and a lack of cultural competency, mental health
professionals over-diagnose and misdiagnose Black and Latinx populations
with certain mental health conditions at much higher rates than they do
white populations.[36]
One meta-analysis of over 50 separate studies found that Black people
are diagnosed with schizophrenia at a rate nearly 2.5 times greater than
white people.[37]
A 2014 review of empirical literature on the subject found that Black
people were diagnosed with psychotic disorders three to four times more
frequently, and Latinx people approximately three times more frequently,
than white people.[38] Therefore, SB 43 risks placing a disproportionate number of BIPOC community members under involuntary state control.
California Should Invest in Voluntary Treatment and Supportive Services
Californians lack adequate access to supportive mental health care and treatment.[39] However, this program does not increase that access.
Investing in involuntary treatment ties up resources that could
otherwise be invested in voluntary treatment and the services necessary
to make that treatment effective.[40]
California should provide well-resourced holistic community-based
voluntary options and remove barriers to evidence-based treatment to
support people living with mental health conditions and harmful
substance use who might also face other forms of social exclusion. Such
options should be coupled with investment in other social supports and
housing.
Expanding forced treatment is a regressive, costly, and inequitable
approach to addressing the structural barriers that keep communities
from thriving. We respectfully urge you to reject SB 43 and instead
direct resources to making voluntary treatment, housing, and other
supportive services accessible to all.
Sincerely,
Olivia Ensign
Senior Advocate/Researcher
US Program
Human Rights Watch
John Raphling
Associate Director
US Program
Human Rights Watch
Source:
Human Rights Watch’s Opposition to SB 43
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