Chapter 11

A. Certification Review Hearing (Probable Cause)

The LPS Act, in shifting the emphasis of mental health treatment away from involuntary treatment to a commitment to community-based voluntary treatment narrowed the criteria under which a person can be detained involuntarily. As we have explained in previous chapters the only three reasons a person can be detained are: 1) if they are gravely disabled; 2) a danger to themselves ; or, 3) a danger to others. These definitions are not open for interpretation. In fact, numerous California court decisions have given strict definitions of these three criteria.

1. Grave Disability

Grave disability is a condition in which a person as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing or shelter. The person must be unable to provide for basic personal needs as a result of a mental disorder. Mere inability to provide for needs is not sufficient. Cal. Welf. & Inst. Code § 5008(h)(1)

A determination of grave disability must be based on the individuals current condition. Regardless of one’s past, the standard is that the condition must be judged by the client’s current situation. (Conservatorship of Neal 190 Cal. App. 3d 685, 689, 235 Cal. Rptr. 577, (1987)).

A person is not gravely disabled if family members or others are willing to help and if the person receiving this help can take care of his/her basic needs. Conservatorship of Neal 190 Cal. App. 3d 685, 689, 235 Cal. Rptr. 577, (1987)

"The LPS Act conspicuously does not state that persons are gravely disabled solely because they refuse treatment for a mental illness." (Conservatorship of Chambers 71 Cal. App. 3d 277, 284-85, 139 Cal. Rptr. 357, (1997)) Further, the refusal to consent to psychotropic medications does not in itself constitute grounds for initiating involuntary commitment. (9 C.C.R. § 855).

Unusual and Nonconformist Lifestyles. Unusual and nonconformist lifestyles cannot be used as the basis for grave disability. The court emphasizes that the grave disability term does not include a person who merely due to a lifestyle are felt to be different than the norm. This would include homelessness. Conservatorship of Chambers 71 Cal. App. 3d 277, 284-85, 139 Cal. Rptr. 357 (1997)

Case Example:

The following is a case in which the client’s behavior could be considered "bizarre" or "eccentric" but did not make her gravely disabled. Elsie Smith, according to the California Court of Appeal that heard the case, "suffered[ed] from a mental disorder which commands her to maintain a vigil outside a particular church...Her fixation on the church results in her sleeping on the sidewalk in front of the church at night, and on one past occasion, this may have caused her to become sick. She has no income, no savings, and no permanent home." Conservatorship of Smith 187 Cal. App. 3d 903, 910, 232 Cal. Rptr. 277 (1986).

The court found that Elsie Smith was not gravely disabled within the meaning of Welfare and Institutions Code. It went on to state "bizarre or eccentric behavior, even if it interferes with a person’s normal intercourse with society, does not rise to a level warranting a conservatorhip except where such behavior renders the individual helpless to fend for herself or destroys her ability to meet those basic needs for survival. Only then does the interest of the state override her individual liberty interests." "Despite her admittedly bizarre behavior, appellant [Smith] is not, nor has she been, incapacitated or unable to carry out the transactions necessary to her survival. No evidence was adduced to show that appellant, because of her mental condition, was suffering from malnutrition, overexposure, or any other sign of poor health or neglect of her physical well-being. Her refusal to seek shelter is not life-threatening" Id.

2. Danger to Self or Others

The legal criterion of danger to self or others has been narrowly defined by the courts to mean "a demonstrated danger of substantial harm" and danger that is "immenent" (People v. Superior Court 148 Cal. App. 3d 990, 196 Cal. Rptr. 431 (1983)).

The danger must be physical, not psychological or social harm. An adolescent is not a danger to self merely because he associates with the wrong friends in places where drugs are present. A person is not a danger to self because he engages in behavior that a provider thinks is not beneficial for him or that may eventually do him harm. The danger must be present, immediate, substantial, physical and demonstrable.

Treatment for Suicidal Persons (second 14 days). The standard for placing an individual on a second fourteen day hold is even more narrow. The standard changes from danger to self to imminently suicidal. The individual must have during the 14 day hold or the 72 hour evaluation period, threatened or attempted to take his/her own life or have been detained for evaluation and treatment because he/she threatened or attempted to take his own life and continues to present an imminent threat of taking his/her own life. (Cal. Welf. & Inst. Code § 5260)

Postcertification for Imminently Dangerous Persons (180 days). The individual must have "attempted, inflicted, or made a serious threat of substantial physical harm upon the person of another" either during the present hospitalization or as part of the events bringing about the detention. (Cal. Welf. & Inst. Code § 5300(a)). There must be a demonstrated danger of inflicting substantial physical harm upon others. Past dangerousness is only relevant to the extent that is demonstrates a present danger.

B. Riese Hearing (Capacity)

In 1991, the California legislature enacted SB 665, mandating informed consent, emergency medications and capacity hearings procedures to implement Riese. Riese was the 1987 judicial decision recognizing mental health patients’ rights to give or refuse consent to medication. The provisions of the bill, condified at Cal. Welf. & Inst. Code §§ 5008, 5325.2, and 5333-5337, went into effect January 1, 1993.

At the core of Riese is the legal presumption that all mental health clients are competent. Under the law, "No person may be presumed incompetent because he or she has been evaluated or treated for a mental disorder, regardless of whether such evaluation or treatment was voluntarily or involuntarily received." (Cal. Welf. & Inst. Code § 5331).

To assess capacity, the Reise court stated the decision maker should focus on whether the patient:

1) is aware of his or her situation (e.g. diagnosis/condition);

2) is able to understand the benefits and risks of, and alternatives to, the medication; and,

3) is able to understand and evaluate the medication information and participate in the treatment decision through a rational thought process.

The court stated that it should be assumed that a patient is using rational thought processes unless a clear connection between the patient’s delusional or hallucinatory perceptions and the patient’s decision can be shown. In addition, the court held that even where there were irrational fears about the treatment, the presence of some rational reasons for refusal of the treatment was enough to require the conclusion that the patient had capacity to make treatment decisions. The court concluded that the evidence showed a disagreement between the doctor and the patient, but such a disagreement did not show that the patient lacked capacity. Conservatorship of Waltz 180 Cal. App. 3d 722, 227 Cal. Rptr. 436 (1986)

1. Standard of Proof

As discussed earlier in this manual, the standard of proof at Riese Hearings is "clear and convincing evidence." This means that the evidence is "so clear as to leave no substantial doubt, sufficiently strong to command the unhesitating assent of every reasonable mind." (Lillian F. v. Superior Court, 160 Cal. App. 3d 314, 320, 206 Cal. Rptr. 603, 606 (1984)). This is a very high standard, considerably higher than "probable cause" and beyond that required in most civil proceedings, "preponderance of evidence."

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