Letter to California Assembly Appropriations Committee

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