by Erica C Barnett
A state senate bill aimed at taking people with severe behavioral health issues off the street and putting them into involuntary treatment is off the table for this year, but its sponsor, Tacoma Republican Steve O’Ban (R-28) says he plans to resurrect it next session, because the problem of untreated mental illness and addiction isn’t going away.
“The reason for this bill is really the parents who have these kids … who devolve into a worse and worse condition and by the nature of their condition, they don’t think they need care,” O’Ban says. Under current law, people can only be detained and put under guardianship if a court determines that they’re incapacitated by a “mental disorder” and pose an imminent threat to themselves or others.
O’Ban’s proposal would allow judges in three counties—King, Pierce, and Snohomish—to appoint executors for people who have been involuntarily held for psychiatric evaluation five or more times in a 12-month period under the state Involuntary Treatment Act. That law allows people to be held in psychiatric hospitals (or emergency rooms if no psychiatric beds are available) for up to 180 days if a judge determines that they are incapacitated by mental illness. The proposed new involuntary guardianship, or “executorship,” would last one year unless the executor filed for an extension.
The program is modeled on a similar set of bills that passed in California in 2018 and 2019, which authorized three counties—San Francisco, San Diego, and Los Angeles—to create a new “conservatorship” program for people with both severe mental illness and addiction. California state senator Scott Wiener (D-San Francisco), who sponsored both bills, says his legislation is intended to address “a very small percentage of homeless people … who are severely debilitated and not capable of accepting voluntary services.”
Wiener says the new California laws create a “very narrow conservatorship to reach this small population so that we can save their lives. It is incredibly inhumane, and certainly not progressive, to allow people to die on the streets.” He estimates that the legislation would apply to as many as 100 people in San Francisco, but advocates who opposed the bill say the number is probably much smaller.
O’Ban’s bill, in contrast, would initially be limited to 10 people in each county. Patients placed under executorship would cede most of their legal rights to a “court appointed resource officer,” or CARE officer, including the right to refuse treatment or choose their own medical providers, the right to decide where to live, and the right “to make decisions regarding social aspects of life,” according to a staff analysis of the legislation.
“One of the areas that’s been a particular concern is the lack of structure and necessary accountability for these patients who come out of involuntary treatment, or they’re in jail, where they should not be, and by the nature of their condition they don’t think they need care and they refuse the needed services,” O’Ban says.
At a hearing on the bill earlier this month, parents whose kids had died on the streets due to lack of housing and treatment testified that if the law had been in place when they were trying to get help for their children, they might still be alive today. Jerri Clark, the founder of Mothers of the Mentally Ill, told the committee that her son, who died last year at the age of 23, “cycled through hospitals that kept him just long enough that he wasn’t dangerous anymore” before releasing him.
But critics of the legislation, including advocates for people with disabilities and people who have struggled with mental illness themselves, say that taking away people’s civil rights is inhumane and doesn’t solve the underlying issues: An acute lack of funding for treatment, housing, and intensive case management.
“We do have concerns that adding another layer of legal process to compel people into care, rather than adding new treatment or housing resources, will mainly restrict civil liberties while not actually getting to the desired outcomes,” the Department of Community and Health Services said in a statement about the bill. “Instead of adding another layer of court involvement, we think a middle of the road approach – focusing on expanding flexible, community-based intensive services and added supportive housing resources – will more effectively meet the needs of this population.”
Laura Van Tosh, a behavioral health care advocate who testified against the bill, says the fact that people are involuntarily committed again and again “points to a problem that has nothing to do with people’s mental health. How can people be committed that many times in one year and nobody has ever talked about why the system didn’t work well enough the first time?” She says the current involuntary commitment system “is like going to a restaurant and getting E. coli over and over again, and never figuring out that you should go to a different restaurant.”
California’s conservatorship law requires treatment and housing to be available before people can be placed under conservatorship, although opponents say cities may meet this requirement by simply putting people in the new program at the front of the line for scarce treatment and services. “San Francisco will not conserve people unless they have somewhere to place them,” Wiener says. “In San Francisco, we’re expanding our mental health bed capacity and our shelter bed capacity, we’re building more supportive housing, but it’s definitely a challenge.”
Similarly, O’Ban’s bill says that a county could only implement the program if there are sufficient resources, including mental health treatment and housing, to serve potential clients. The loopholes will likely be the same, if a version of O’Ban’s bill passes in the future, as those in places like San Francisco. There are always beds in Seattle for some people—the question is who gets priority.
Jen Flory, a policy analyst at the Western Center on Law and Poverty, says that by putting people in involuntary treatment and stripping them of their rights, “we’re kind of skipping from A to Z. If you look at the big picture, we’ve completely divested from mental health care and we’ve put people out on the streets where they’re completely disintegrating… and then the only care that they’re getting is in the back of police cars being brought to psych emergency [wards]. And at the end of this journey, they’re like, ‘Okay, there’s something wrong with you and we need to force this care on you.’”
David Lord, the public policy director for Disability Rights Washington, says that before the state authorizes counties to appoint guardians for people struggling with mental illness and addiction, they should actually fund the services O’Ban’s bill enumerates, which include supportive community housing, outpatient counseling and treatment, peer support services, and substance use treatment.
“If you provide services, make them available, and do it in a way that is attractive to people, they’re much more likely to accept those services than if you try to force them,” Lord says.
Neither California’s law, nor O’Ban’s proposal, specifically focuses on people experiencing homelessness. But the subtext of both bills is that they will help put people exhibiting visible symptoms of severe mental illness and addiction—shouting, acting out, and behaving in ways that make other people uncomfortable—out of sight.
In our conversation, O’Ban referred to the 100 “prolific offenders” identified in a report by former Seattle City Attorney candidate Scott Lindsay as a group that might be eligible for executorships under his proposal. And he acknowledged that while his bill is “not exclusively for those who are homeless, I think many of the people who are eligible would be” homeless.
“I can tell you that there are familiar faces, frequent flyers, people who are well-known to the law enforcement community and in emergency rooms,” O’Ban says. “If you start focusing on that population, by identifying the top 100 who are heavily utilizing all those …. you would save the system literally hundreds of thousands of dollars a year.” And “clean up” downtown streets in the process.