DRC Will Challenge California’s Outpatient Committal Laws in Court

Rob Wipond
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laura-law-bothDisability Rights California will challenge Los Angeles County’s Assisted Outpatient Treatment program in court as early as this fall, DRC staff attorney Pamela Cohen has announced. DRC, the federally mandated Protection and Advocacy agency in California, has notified the government of its intentions, and plans to follow up with legal challenges to similar ordinances in Orange County and San Francisco next.

Cohen was speaking at the National Association for Rights Protection and Advocacy conference in Seattle on September 5th. She said the agency has been studying the legislation in collaboration with experts from the Bazelon Center for Mental Health Law and the American Civil Liberties Union. She described the Assisted Outpatient Treatment (AOT) program as “a bad investment in a broken promise.” AOT diverts desperately needed dollars away from community mental health services and towards police, administrators and courts, doesn’t reach the people it purports to be trying to help, and violates people’s civil rights, she said.

Also known as “Laura’s Law,” California’s AB-1421 allows the government to force people who’ve been diagnosed with mental illnesses into treatment programs even though they are living in the community and do not require hospitalization. Though the law doesn’t specifically mandate involuntary drugging, said Cohen, it allows people to be forced into capacity hearings where drugging could be mandated, and non-compliance with treatment is a central criterion for being put in the program in the first place. Furthermore, medication regimes can be written into a person’s AOT plan, and then non-compliance with the plan may be considered a breach of the law. She also said there would likely be a “black robe” effect, where at AOT hearings people would be persuaded by judges to take medications for fear of potentially facing more serious legal consequences later. The overarching state law AB-1421 authorizes AOT, and so far 6 of California’s 58 counties have begun AOT initiatives. With expanded funding now available Cohen said she expects more AOT programs to be “popping up” in other counties. But many people have been deeply misled about whom the AOT programs target and how well they work, she said.

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Pamela Cohen

“At [County] Board of Supervisor hearings people are always testifying that these laws are for people who don’t know they have a mental illness and have no insight and can’t make their own decisions,” said Cohen. “[They testify that] this law provides services for people who would otherwise slip through the cracks, who can’t get services because they’re dangerous and lack capacity to make their own decisions.”

Cohen said those assertions are mere myth, and that in fact AB-1421 expands the criteria for forced treatment to a much broader segment of the population. “The standard [for being forced into the AOT program] is that someone thinks you might be dangerous,” said Cohen. “Not that you are dangerous.” Meanwhile, California already has laws addressing circumstances where people may be losing their decision-making capacity, so the AOT laws do not even mention questions of capacity. “People are very misled about that.”

Cohen outlined DRC’s three main legal arguments against California’s AOT programs in her presentation.

First, she noted that AOT is designed to provide people with a diverse range of individualized services, such as housing assistance, employment training, family support, medication co-ordination, mobile multi-disciplinary mental health teams using high staff-to-client ratios, and culturally sensitive psychosocial and psychotherapeutic options. However, AB-1421 also stipulates that people cannot be forced to participate in an AOT program unless they’ve already been offered this same range of services on a voluntary basis. “We don’t believe that any county is actually offering that range of services” to the many people who want them, said Cohen. And the fact that no county is actually following the law by providing these services to everyone to access on a voluntary basis is extremely relevant, she said, because it’s these services that truly help people, not the use of force.

“The Treatment Advocacy Center and [National Alliance on Mental Illness] have all kinds of studies that they talk about that they say show benefits from these [court ordered outpatient forced treatment] programs,” said Cohen. “But there are only three studies in the whole world that have controls, where they actually offered the same services to people on a voluntary basis. Any other study is meaningless… These three studies all show that there’s no benefit to the court order.”

“These are very broad criteria,” said Cohen. “It’s unconstitutionally vague and overbroad.”

The second major problem with the legislation, said Cohen, is that people can become subject to an AOT order if they’ve threatened to commit suicide even once in the past four years, or if they are “substantially deteriorating” or are “unlikely to survive safely in the community without supervision.”

“These are very broad criteria,” said Cohen. “It’s unconstitutionally vague and overbroad.”

A third problem, said Cohen, is that AB-1421 violates the federal Health Information Protection Act (HIPA), because anyone merely coming under consideration for the program is forced to divulge their mental health records. “Starting from this investigation stage going forward there are all kinds of disclosures happening without consent,” she said.

Meanwhile, people only get five days to prepare their defense against an AOT order, said Cohen. “We know that the Los Angeles public defenders are concerned about this. They don’t think they can adequately represent their clients when they’re only given five days notice.”

In an interview with Mad In America, Cohen said that DRC’s court challenge may involve representing someone who has been put under an AOT order, or representing a taxpayer and arguing that AOTs are an illegal use of state funding. “Our view is that this is an illegal program,” said Cohen.

“We’d like to see the AOT programs dismantled. We’d like to see the range of services that are offered by AOT provided to people on a voluntary basis,” Cohen told Mad In America. “We should not be using coercion to provide services that should be provided on a voluntary basis.”

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For more information:

AB-1421 Mental health: involuntary treatment (California Legislative Information)

Disability Rights California

National Association for Rights Protection and Advocacy

UPDATE: Los Angeles Postpones Implementation of Outpatient Committal (Mad In America, October 13, 2014)

12 COMMENTS

  1. In Australia;

    Increases costs and diverts funds

    Increases hospital admissions due to ‘hypervigilance’

    No evidence of increased public safety

    No improvement in quality of care

    But it sure does give psychiatrists a big stick to beat you with. I wish Ms Cohen luck.

  2. Damn right it is fague. In Oregon they found that commitments were illegal unless at that very moment they were dangerous to self or others and that any event of the past could not be used against the individual unless it was consistent with current behavior at that moment, limited to previous days and weeks .. If they were fine within days and weeks, they had to be let go. For people all around the country many remedies and protections exist but have never been properly argued. I look at the us constitution and I see that taking of life of limb, torture (forced treatment), enslavement without conviction and all that is banned. So if they cannot convict you of a crime it is technically illegal to enslave you to the psychiatric system and forced treatment would be a form of cruel and unusual punishment .. Also your right to liberty under due process clause essentially guarantees that it is not in your best interest to be locked up/forced drugged and is it a violation to strip ones liberty. It could also be seen as a form of discrimination against disabled people under the equal protection clause to have a law meant to strip liberty from them but not non disabled people, which is how they justify forcing treatment and lock up in the current scheme by discriminating against disabled people (note: none disabled people cannot be forced drugs or treatment on). Finally forced treatment probably violates 1st amendment right to expression and speech and creativity and design, as treatments can destroy and remove ones ability to speak , defend, create, and express ones self. The drugs effect of chemical lobotomy essentially damages a persons brain and thus their control, function, communication ability etc out of them (memories and functions can be completely erased from brain/body, interfering with ones right to remain whole, and communicate and function freely with their wholeness intact without risk of someone being able to modify or disturb it.).

    Previously us supreme Court held that, mostly due to misinformation and lack of proper expert opinions, that there were no harmful effects to drugs and thus people had no right to be free from forced treatment. Part of this changed in the Sell case , now you have rights to due process, but the deadliness and destructiveness of the drugs has still not been established to do anything but guarantee you due process. It is technically possible to have practices banned and heavily curtailed with new arguments that were previously not made. However in the Sell case they do set out a system in which drugs cannot have serious impact of the targets health meaning side effects must be weighed, the problem is that the states and lower court systems are not being trained to recognize this and are currently misinformed on effectiveness and safety. While Justice Kennedy believed forced drugging would mostly be banned under Sell, lower judges are being trained that Sell allows forced drugging.).. http://www.obamasweapon.com

    I have some documents on sell and your constitutional rights here (the forced drugging defense package can also save you, yet I am sure few have used it or even know it exists): http://www.oregonstatehospital.net/resources.html

    • Right. Disability Rights Oregon is a joke. Not only do they cop out on forced drugging but also let state murder and use military weapons on the patients .. They will not help any of the victims. They were directly involved in the US Department of Justice investigation & helped cover up my abuse because all their advocates & attorneys were involved and didn’t want to get caught.

      They did use my case to sue OSH due to violations of patients due process rights in 2007, which brought the administrative law judge hearings but all the judges do normally is sign off on what the states doctors want, allowing any abuse with drugs to be approved. DRO refuses to correct the mistakes or to come clean.

      Details on http://www.OregonStateHospital.net/

      Some abuse & protection agency for Oregon that evidence & security video and audio of many of these events could exist and DRO advocates would refuse to do anything to check it or expose it, for 6+ years..

        • She forgot some .. 13 amendment bans forced servitude and enslavement, such as to a system of psychiatric care, without it being part of a sentence after conviction for a crime. The 14th amendment also bans discrimination against the mentally ill, under the equal protection clause. You also have a right to due process so government / institutions cannot touch you without due process oversight (normally judges and ways to appeal must be set up, and representation must be provided before life and limb taken). Not many cases in terms of lawsuits bring all these things up. Also the Americans with Disabilities Act is also powerful, making it illegal to discriminate against the mentally Ill such as through locking them up or putting them in places for care which is inappropriate or requiring them to take certain treatment just because they are disabled (this is a pharma cuticle companies dream, the ability to force treatment under government mandate just based on condition or disability alone). I believe the 8th amendment is applicable to even none prisoners because it implies torture and corporeal punishment (injuries through medical intervention) cannot be inflicted even for conviction of a crime, which protects you certainly even in any day circumstances but most people never argue it applies to non criminal/cases of prisoners . It also means government cannot create laws stripping you of these freedoms or rights without removing these amendments. The way to contest laws which go overboard is to find the law found unconstitutional by a federal judge in a lawsuit. Seek a constitutional law attorney for help or file pro se if you are being effected.

          The whole issue is largely left unchallenged and attorneys and disability rights attorneys and ACLU and lawyers guild has failed us. So has the us department of justice. :'(

  3. Imagine if no laws or constitution existed. Government could do whatever they wanted to us and set up so many loopholes for private providers, that anything could be done to a person with no way to stop it at all. Imagine that those in the psychiatric system are already living with this problem and are suffering irreparable harm. That could never be undone. This is the way of the current system which focuses on brain mutilation and chemical lobotomies as the exclusive option, where most doctors and judges believe alternatives are not even effective alone without a side prescription for drugs, psychosurgery, or ect (all these treatments induce trauma, which means brain, and function loss, ultimately in pursuit of memory, function, behavior or personality change).

  4. Stalin is laughing in his grave!

    Moa is singing from his grave

    Hitler is smiling – in thousand pieces

    Mussolini dancing in his grave

    All 4 of these madman, had things like this: you could be called anti- this or that: not German or other. You are crazy at any point your point view is wrong —–talk about pandora’s box