A deep dive into Newsom plan to overhaul mental health policy

Santa Clara County Superior Court Judge Stephen Manley started the first Mental Health Court in California – one of the first in the country – in 1998, to divert increasing numbers of mentally ill defendants from the criminal justice system, where jails and prisons are often called “the new asylums.”

Designed to break the tragic pattern for people whose mental illness underlies their crimes — landing them, repeatedly, in jails and prisons ill-equipped to help them – Manley’s courts annually manage the cases of 1,500-2,000 mentally ill defendants (he calls them “clients”). Nearly 70  percent have successfully completed their requirements and many charges were dismissed, saving lives and public funds.

Newsom estimates that it would help 7,000-to-12,000 severely mentally ill people each year, many with chronic physical conditions that are worsened by life on the streets.

So it was not surprising to see Manley speaking at a San Jose press conference March 3 when Gov. Gavin Newsom announced a sweeping proposal to address California’s badly broken system of “care” for the growing numbers of mentally ill Californians wandering the streets, clogging hospital ER’s, jails and prisons. Newsom dubbed the plan “CARE Court,” for Community Assistance, Recovery and Empowerment.

If approved by the Legislature, Newsom’s plan would create an entirely new system of civil court supervision, connecting individuals with intensive treatment and, equally important, housing.

By Newsom’s estimate, it would help 7,000-to-12,000 severely mentally ill people each year, many with chronic physical conditions that are worsened by life on the streets, clearly unable to care for themselves. It would not replace existing programs.

“We are taking action to break the pattern,” Newsom said at the March 3 press conference in a mental health facility in San Jose, “that leaves people without hope and cycling repeatedly through homelessness and incarceration. This is a new approach to stabilize people with the hardest-to-treat behavioral health conditions.”

“We are rapidly moving back to where we were 100 years ago, where the answer for the mentally ill was simply to incarcerate them in a hospital and keep them there until they die.” — Stephen Manley

Noting that $12 billion in multi-year state funding was approved last year for homelessness and mental health programs, and $4 billion for improved children’s mental health, he said he is proposing another $2 billion this year in the 2022-23 state budget. Additional funding is provided by the Mental Health Services Act, the 2004 ballot measure to tax the wealthiest Californians, which is expected to add $3.7 billion to state mental health care this year.

Newsom’s proposal requires legislative approval and has drawn criticism from disability rights advocates, who oppose involuntary treatment, and from counties, which dispute the need for potential sanctions against counties. The mayors of major cities, family members and mental health advocacy groups are strongly supportive.

Mental health courts and other forms of intensive mental-health intervention and treatment vary widely throughout California, as counties control local programs — with considerable state funding, vast disparities in quality and little state oversight. Manley’s court is often called the “gold standard” for similar courts around the country, and he sees the successes when care providers and a sympathetic judge join forces to intervene.

Peer support is a key component of the governor’s proposal.

“We need to stop trying to fix a failed system,” Manley said at the governor’s press conference, characteristically blunt, a striking presence with his shock of white hair and black eye patch, the result of a decades-old injury. “We are rapidly moving back to where we were 100 years ago, where the answer for the mentally ill was simply to incarcerate them in a hospital and keep them there until they die. Mental health is a real crisis in our court system, and mental illness is not a crime.”

In a March 7 interview with Capitol Weekly, Manley said treatment facilities and staff must be increased at the local level. “I see these individuals every week, who cannot survive in the community in the condition they’re in, and they’re in jail,” he said. “I have 110 mentally ill individuals sitting in jail whom I’ve ordered released, but there is nowhere for them to go because there are no open beds. I’ve seen this number skyrocket during the pandemic.”

Manley also called for more paid “peer support” workers, who have long been a staple of successful treatment programs – a concept that is rapidly gaining support in state and local government. Peer workers are people with “lived experience” in the mental health and criminal justice systems, who may not have clinical degrees.

Major “peer certification” legislation finally passed in California in 2020 after years of failed attempts. It helps expand the use of peers in treatment programs, and peer support is a key component of the governor’s proposal.

Newsom’s plan is a civil court proposal which seeks to intervene before an arrest. It borrows elements from the proven model of Mental Health Court that Manley pioneered in the criminal courts, as well as from Assisted Outpatient Treatment (AOT) programs in civil courts under Laura’s Law.  Approved in California 20 years ago, Laura’s Law programs currently exist in 31 counties, covering about 80 percent of California’s population.

State Sen. Susan Eggman has also introduced eight other mental health bills this year, and has been consulted by the administration on the governor’s proposals.

Both programs have long, documented records of success, and significant cost savings, but are not mandatory under state law. CARE Court would be mandatory, overseen by civil – not criminal – courts.

Plans to put the governor’s proposal into effect were included last week in a state Senate bill  by Sen. Susan Eggman (D-Stockton), a former social worker and Sacramento State professor who has successfully shepherded major mental health legislation into law in recent years. Sen. Tom Umberg (D-Santa Ana), a former federal prosecutor and deputy “drug czar” to President Bill Clinton, is co-author.

Eggman has also introduced eight other mental health bills this year, and has been consulted by the administration on the governor’s proposals.

“We are trying to address a broken mental health system,” she said in an interview, “and the governor’s proposal provides a new entry point – an onramp to a system that for too long has focused on crisis management. We’ve long promised a community mental health system, and we’ve failed.”

“Counties are all in to do our part to solve homelessness and rebuild behavioral health infrastructure … (but) sanctions are not the way to do it.” — Graham Knauss

Unlike local Laura’s Law programs or the Mental Health Courts, Newsom’s CARE Court would be required in all 58 counties, with significant state oversight and possible court sanctions for counties that fail to create, and maintain, viable CARE Court programs.

In “extreme cases,” according to the Newsom proposal, civil courts could “appoint an agent to ensure services are provided.”

Counties immediately balked at the broad range of the proposal, particularly court sanctions against counties, which many mental health experts contend are necessary to provide accountability in a patchwork system long known for inconsistent policy, lax follow-up, poor data collection – and extremely limited state oversight, enforcement or sanctions.

“Counties are all in to do our part to solve homelessness and rebuild behavioral health infrastructure,” said Graham Knauss, executive director of the California State Association of Counties, in a March 3 statement. “Sanctions are not the way to do it.”

Veteran mental health experts sharply disagree.

“I understand they (the counties) don’t like it,” said Randall Hagar, legislative advocate for the Psychiatric Physicians Alliance of California, who has helped write many mental health bills over more than two decades, and has provided input to the Newsom administration on the proposal. “At the end of the day, there has been no accountability and no sanctions that, in my memory, have applied to counties.  Accountability is a really sensitive issue to the counties, but how can they oppose it?”

Echoing the views of other mental health advocates, Hagar, the father of an adult schizophrenic son, said state policy has historically been plagued by clashes among local and state authorities, with county mental health agencies resistant to substantive change, while calling for more funding to deal with a pervasive, statewide housing and mental health crisis.

“There is a tradition of tensions between state and local authorities,” he said. “We need to break up the silos, and it’s not okay to stand on the same policy positions that have been used for so long.”

“CARE Court will serve a different population, but I am hoping the state will run things better [than the counties].” — Brian Stettin

Brian Stettin, policy director for the Treatment Advocacy Center , a national mental health advocacy organization, says counties are too often stumbling blocks for important reforms in California. He cited the slow progress of expanding AOT programs to all counties, which are allowed to “opt out” of Laura’s Law — although all of the larger counties now have AOT programs.

As an assistant state Attorney General in New York in 1999, Stettin wrote Kendra’s Law, named for 32-year-old Kendra Webdale, pushed to her death from a subway platform by a severely mentally ill man who had been repeatedly hospitalized. While AOT has been much more widely utilized in New York than in California, cases still fall through the cracks, Stettin wrote in a recent article about a Jan. 15 subway death that was eerily similar to the Webdale case.

Based on Kendra’s Law, the 2002 California law is named for Laura Wilcox, a 19-year-old college student and Nevada County mental health clinic receptionist who was killed in 2001, along with two others, by a deranged clinic patient, whose family had repeatedly tried to warn clinic officials of his severe deterioration. They refused to listen.

Nevada County became the first county in the state to adopt Laura’s Law, six years after it was passed — a condition for the settlement of a lawsuit against the county by her parents, Amanda and Nick Wilcox, who have advocated for Laura’s Law throughout the state. It remains, by all accounts, one of the most effective AOT programs in 31 of California’s 58 counties.

“Most California counties operate only nominal AOT programs,” Stettin said. “CARE Court will serve a different population, but I am hoping the state will run things better [than the counties]. It is tragic how few AOT participants in California actually go before a judge.”

Some advocates say a ballot measure may be necessary if legislators fail again this year to enact substantive change.

As in California, Stettin said, most AOT cases in other states are initiated with the person’s agreement. But he said California counties tend to reach voluntary settlements that don’t involve the court, whereas other states place all participants under the court’s supervision. “The judge functions as a really positive figure,” he said, “making it a mutual commitment.”

Newsom and supporters of the governor’s proposal – including the mayors of many major California cities — argue that broad statewide reforms are needed to address a deepening crisis, despite billions in funding over decades, and multitudes of failed or flawed policies .

Some advocates say a ballot measure may be necessary if legislators fail again this year to enact substantive change, and Eggman last year created a campaign account for such a measure if legislative efforts fail.

Although supportive of Laura’s Law and recent Eggman legislation to strengthen it, Newsom said it’s not utilized effectively at the county level, citing low statewide figures for Laura’s Law cases — based on incomplete state data about court-ordered treatment, which does not include a larger number of cases that are resolved voluntarily, without court intervention.

Still, getting the law adopted statewide in the 20 years since it was passed has been a long slog.

To be fully funded and approved, through legislation and in the 2022-23 state budget, Newsom’s CARE Court proposal faces huge legislative and administrative hurdles, as well as opposition among disability rights groups staunchly opposed to involuntary treatment. The proposal is strongly backed by state and local officials and mental health advocacy groups. Supporters include family members, who are often the default caregivers for severely mentally ill relatives yet receive hardly any government support or even acknowledgement.

“It’s time we face the painful, but obvious truth: our behavioral health system in California is broken” — Todd Gloria

Newsom has met personally with family members, and has highlighted their struggles to get help for their often adult children. “There but for the grace of God go any of us,” he said. “It’s a system that completely lets them down.”

The proposal is also backed by the mayors of major cities.

“It’s time we face the painful, but obvious truth: our behavioral health system in California is broken,” said San Diego Mayor Todd Gloria at the governor’s press conference, calling the CARE Court proposal “a major step forward, [providing] individuals struggling with behavioral health issues a pathway to the housing and health services they need – and give those who encounter these individuals a real way to get them the help they need.”

Under the CARE Court plan — detailed on a recently created state Health and Human Services Agency website — referrals for services could be made by behavioral health clinicians, family members, law enforcement, first responders and courts. In theory, a “care plan” would be promptly initiated for a range of services, from treatment to housing. Public defenders would be appointed by the courts to represent individuals in the program.

Initial intervention could occur at many key junctures, such as family crises — when people will call 911, generating a law enforcement response which too often ends badly — or after an individual is released from a hospital following a mental health “hold.”

Key elements of Newsom’s CARE Court plan are comprehensive “wraparound” and “continuum of care” services designed to prevent institutionalization…

The most common form of mental health holds in California is a 72-hour “Section 5150” detention under the 1967 Lanterman-Petris-Short (LPS) law that has governed the state’s mental health system for more than 50 years, severely limiting involuntary treatment.

Many people are released well short of 72 hours, frequently returning to the streets.  Last year alone, Newsom said 56,000 LPS 5150 holds were initiated in California.

In the wake of many well-publicized incidents of mental health calls that escalated into arrest, injury and death – and huge legal payouts to families who sue — local governments are already making major shifts in how police respond to those calls, with social workers assigned to work with police to de-escalate such incidents and get people into treatment.

Key elements of Newsom’s CARE Court plan are comprehensive “wraparound” and “continuum of care” services designed to prevent institutionalization, which too often means jail or prison. Both are popular concepts among mental health clinicians and families, but inconsistent and poorly funded at the local level.

At least one-third of inmates in jails and prisons  are believed to be suffering from mental illness. Mentally ill defendants, although not convicted of a crime, are much more likely to stay in jail for long periods while awaiting evaluations of their mental state, to determine whether they are able to understand the charges against them or assist in their defense. The evaluations are largely conducted by state mental hospitals with huge case backlogs.

Although Newsom says the new system won’t replace the state’s antiquated 1967 LPS law, the proposal clearly represents a sea change in state policy.

Mentally ill people are also more likely to be victims of crimes than perpetrators, and charges are often minor, exacerbated or caused by their underlying mental illness and related drug use. But minor charges can easily escalate with multiple arrests, and news articles  abound about people with untreated mental illness committing terrible crimes, frequently after repeated, usually brief hospitalizations, restraining orders, and family pleas for intervention before a crime is committed.

Unlike many earlier proposals, treatment outlined in the governor’s CARE Court plan specifically includes substance-abuse issues, which often accompany – and worsen — severe mental illness, as homeless, untreated people self-medicate with dangerous street drugs.

Although Newsom says the new system won’t replace the state’s antiquated 1967 LPS law, the proposal clearly represents a sea change in state policy. While the Legislature has failed to make broad changes in the law, recent legislation to modify it is regularly passing in the Legislature, and signed by the governor.

In a March 16 interview with KQED Public Radio in San Francisco, Newsom said that substantive mental health reform has been limited by “severely outdated laws and regulations from the 50s and 60s,” a clear reference to the 1967 law. “For decades, we’ve been debating LPS,” he said, ‘which was constructed in a world that no longer exists.”

Lanterman-Petris-Short was introduced more than 50 years ago by three well-meaning, bipartisan legislators in response to decades of institutionalization …

Individuals detained under a “5150” mental health hold (a reference to the section of the state Welfare and Institutions Code that incorporates LPS) would qualify for services under Newsom’s proposal, which includes the possibility of conservatorships for those needing a higher level of care and supervision. Improvements in an underfunded, understaffed public guardian/conservatorship system are also part of the plan, as well as in recently introduced legislation.

Lanterman-Petris-Short was introduced more than 50 years ago by three well-meaning, bipartisan legislators in response to decades of institutionalization, when mentally ill and developmentally disabled people – including many children – were routinely held, often for decades, with little recourse, in a vast system of state mental hospitals where treatment was minimal. Many were injured or died under circumstances state investigators found “highly questionable” in one massive 1970s investigation. Most of the hospitals were closed in the 1960s and ‘70s, with only a few remaining, mainly to house inmates deemed criminally insane by the courts.

But the promised “community care” for thousands of former state hospital residents never materialized, consigning them – and generations to follow – essentially to fend for themselves, often after decades in institutions. Many family members were unwilling or unable to help, while other families became (and remain) default caregivers, with little or no support. Families who do try to help say they are blocked by overly stringent confidentiality laws, and frequently told by authorities that their relatives must be homeless or arrested – or worse — in order to get help. Many caregivers are aging parents of adult children.

“We are at a time when we need to be hopeful — and honest that our current system is not working.” — Le Ondra Clark Harvey

Acknowledging the challenges of implementing a massive proposal with many moving parts – and viewpoints about it – the Newsom administration has been reaching out to disability rights groups, treatment providers, families, community organizations and local governments, among others, with a series of community meetings and webinars.

Disability rights advocates flatly oppose any suggestion of “forced” or “involuntary” treatment (although court-supervised treatment is in reality more nuanced, often voluntary), and county governments remain wary.

The National Alliance on Mental Illness (NAMI), an influential organization that has long represented families, strongly favors the proposal, as do many on-the-ground community treatment organizations. Bipartisan support in the Legislature for mental health reform has often meant unanimous votes on key legislation in recent years.

“We are at a time when we need to be hopeful — and honest that our current system is not working,” says Le Ondra Clark Harvey, a psychologist and former legislative staffer who heads the California Council of Community Behavioral Health Agencies, which represents nonprofits and other agencies that administer many key mental health programs for the counties. “There are many unanswered questions,” she said of the CARE Court proposal, “and I look forward to more detail. But the strategy is good. It’s time to put everything on the table and have an honest conversation.”

“I thought I could fly. I almost jumped off a building. It’s a change in consciousness similar to dementia.” — Lee Davis

During a recent,  virtual “town hall”  organized by Disability Rights California, which has long opposed court-mandated treatment, many participants favored more comprehensive, voluntary services and described negative experiences with involuntary treatment under the current LPS system. But others with “lived experience” in the mental health system, spoke of emerging from the fog of mental illness only because they were involuntarily treated.

“While I was ill, I was a danger to myself,” said Lee Davis,  chair of the Alameda County Mental Health Advisory Board. Davis is stabilized with bipolar disorder and has written extensively on mental illness. “I thought I could fly. I almost jumped off a building. It’s a change in consciousness similar to dementia. You wouldn’t leave an elderly person in a state of mental confusion to just fend for themselves,” Davis told the town hall, although she was not representing the Mental Health Board in her comments.

“I fundamentally disagree with the notion that everybody is in a position to make a decision voluntarily,” she added. “I was absolutely in a different state of consciousness and needed help. I’m so glad I was involuntarily committed and stabilized, and now I’m in a position to speak for people who have had that experience.”
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Editor’s Note: Adds attribution, final two grafs. Sigrid Bathen is a Sacramento journalist and former Sacramento Bee reporter who taught journalism at Sacramento State for 32 years. She has long covered mental-health issues, for several publications, and her writing has won numerous awards. She has covered health care, education and state government for Capitol Weekly since 2005. Her web site is www.sigridbathen.com. She can be reached at [email protected].

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