Abdicated Authority: How We Fail Conservatees

Author(s): Nicolas Badre, MD,Alex V. Barnard, PhD 

Key Takeaways

• California's homelessness crisis and misuse of conservatorship highlight the complexities of involuntary psychiatric care, with recent legislative efforts expanding treatment criteria.
• The debate on involuntary treatment focuses on balancing life-saving care and civil liberties, with both sides agreeing on the importance of law application over wording.

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How can we ensure an accountable, effective, and limited conservatorship system? Here are some actionable concepts.

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States began reforming their laws on involuntary mental health treatment to put an end to indefinite commitments 70 years ago, yet there is still no consensus on when involuntary treatment works, for whom, and to what it is needed. The binary debate on the necessity or harm of involuntary treatment has often overshadowed pragmatic solutions. Here we focus on actionable concepts that involve a greater role for government in ensuring an accountable, effective, and limited conservatorship system.

California encapsulates many aspects of the broad debate concerning involuntary psychiatric care. The state faces a significant homelessness crisis, characterized by political desires to utilize mental health services to address the perceived nuisance of homeless individuals, particularly those using substances in public. It is also notorious for controversies surrounding the misuse of conservatorship to restrict liberties, as highlighted by the high-profile case of Britney Spears,¹ and farther back by the case of Brian Wilson.²

In recent years, the state has moved aggressively to expand the use of involuntary treatment. As Governor Gavin Newsom declared, “We know what it takes to help people with mental illness out of the shadows and out of encampments—housing and treatment. It’s time to go big and reform the system.”³ This vision is exemplified by Senate Bill 43 in 2023, which made substance use disorders eligible for conservatorship and expanded the definition of “grave disability”—the key criterion for conservatorship—to include an inability to provide for personal safety and medical care (alongside food, clothing, and shelter).

Diagnosing the Problem

Proponents of expanding involuntary treatment argue that it provides life-saving care for individuals who are unable or unwilling to consent to treatment, and who might otherwise wind up incarcerated, homeless, or dead. Opponents argue that forced treatment is traumatic and that the needs of individuals with serious mental illnesses are best met through voluntary services, independent housing, and peer supports. Both sides of this debate, however, seem to agree that the specific wording and structure of commitment laws is impactful and worth fighting over.

We argue that problems in the current conservatorship system are more related to implementation than the wording of the law. The landmark Supreme Court decision in O'Connor v Donaldson (1975) established that the state “cannot confine a non-dangerous individual who is capable of surviving safely by himself or with the help family or friends.”⁴ Yet law enforcement, inpatient psychiatrists, judges, and public guardians define “grave disability” differently.

Emphasis should be placed on the consistent and fair application of current laws. Multiple attempts at changing conservatorship laws in California have had little impact. The vehement debates about precise wording of involuntary laws are less important than how they are applied by stakeholders, “you would be hard-pressed to find anything resembling a strategy for how judges, clinicians, or bureaucrats should be using the law as written.”⁵

Each of the actors involved in the continuum of conservatorship can effectively block someone from advancing on the pathway to the conservatorship, none of them can ensure that a person who needs it gets it or ensure that other actors deliver quality care. Furthermore, the fragmentation hinders adequate evidence to be disseminated rendering each participant with inadequate information to evaluate the need for conservatorship.

While conservatees are legally required to be in the least restrictive setting, many linger inappropriately in locked facilities because step-down programs are mostly private and screen out those with criminal justice history, substance use, or comorbid medical issues.

Because of a lack of state guidance or evaluation, there are no clear outcome measures for conservatorship, meaning that conservatees in some counties of the state rapidly cycle on and off conservatorship while others are left on conservatorship, with the important civil liberties restrictions it entails, for life. These problems stem not from commitment laws but the way the state has effectively “abdicated authority” over them: declining to use its regulatory and financial levers to provide direction to the conservatorship system.

Proposals for Improvement

Data Collection

While both sides agree the current system is dysfunctional, we lack the basic data needed to assess the nature and scale of that dysfunction. Lee and Cohen highlighted significant limitations in the reporting of civil commitment across the United States, finding that only 25 states offered a publicly-available count. As they point out “without accurate incidence estimates, links to potentially contributing and consequent factors of civil commitment cannot be reliably assessed.”⁶ It is antithetical to science to discuss the necessity of more or less civil commitment without knowing how much civil commitment is currently being performed and for what reasons. An absence of baseline data also makes it impossible to assess whether changes to commitment laws actually change the number of commitments, much less improve outcomes.

Oversight Enhancement

Clinicians often resist oversight, fearing their expertise and morality are under scrutiny. Clinicians in California are familiar with vigorous public defenders representing clients in conservatorship hearings who challenge their diagnosis, the veracity of hearsay from family members, and the treatment team's ability to predict the future. However, oversight could encompass various aspects that benefit both providers and the people they serve, such as:

• Providing training and guidelines to ensure that the multiple actors in the conservatorship system (physicians, law enforcement, judges, public guardians) define criteria in a way consistent with evidence about who is most likely to benefit from conservatorship.
• Ensuring that local mental health departments provide adequate reimbursement to ensure that mandated services are available for individuals under conservatorship. Without such measures, private hospitals are deincentivized to adequately treat individuals.
• Counterbalancing reimbursement, for-profit programs must be overseen to curb excess on the inappropriate use of involuntary programs. Recent reporting shows how major hospital chains twist criteria to extend inpatient stays.⁷
• Safeguarding against for-profit programs selecting only the most cost-efficient admission by creating requirements of admission or providing a safety net of public institutions.

When California closed its Department of Mental Health in 2012, it left a significant oversight void that remains unaddressed. The state needs to have dedicated leadership specifically focused on regulating the conservatorship system.

Funding for Appropriate Placements

Contrary to popular folklore, California has a high rate of involuntary treatment—nearly 500 involuntary holds per 100,000 annually compared to less than 200 in Texas,⁶ or European countries like France and England.⁸ Despite this, the state only had about 5000 conservatorships in 2018,⁹ compared with over 100,000 individuals on emergency holds that year. The real bottleneck is not the availability of acute psychiatric beds, then, but placements afterwards. Locked, sub-acute mental health rehabilitation centers are in such high demand that they can afford to be selective, leaving many patients without placement options. Patients are thus subjected to either inappropriate, long-term hospital stays or discharged rapidly, contributing to the revolving door phenomenon. Focusing investments to ensure patients can step down to less restrictive levels of care can avoid both the expense and civil liberties concerns of expanding inpatient placements.

Concluding Thoughts

Seventy years ago, societal measures led to the closure of state hospitals and a shift in the care of individuals with severe mental illness. Today’s system relies heavily on short-term involuntary holds without effectively transferring patients to lower levels of care, resulting in high readmission rates. The current fragmented, complicated, and unregulated system fails to achieve the goals of both proponents and opponents of involuntary treatment. In other domains, like corrections, such poor data and oversight would be deemed unacceptable. Ultimately, the states have failed to fulfill their roles by “abdicating their authority” and leaving implementation up to individual courts, hospitals, and clinicians. Effective measures to increase accountability would benefit both sides of the debate on involuntary care.

Dr Badre is a clinical and forensic psychiatrist in San Diego. He teaches medical education, psychopharmacology, ethics in psychiatry, and correctional care. Dr Badre can be reached at his website, BadreMD.com. Dr Barnard is an assistant professor of sociology at New York University. His research examines decision-making in public mental health care in France and the United States.

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Abdicated Authority: How We Fail Conservatees