Understanding the Lanterman-Petris-Short (LPS) Act
Understanding the Lanterman-Petris-Short (LPS) Act
This pub tells you about “Lanterman-Petris Short Act” or LPS commitments. LPS is for people who are gravely disabled and have a mental disorder. This pub tells you about your rights. It tells you what a court does. It is a guide for patients, advocates and lawyers.
Prior to 1967, California’s mental health system looked very different than it does now. Many more individuals with mental health disabilities lived in state hospitals and large facilities, often for long periods of their life. Then California passed the Lanterman-Petris-Short Act (Welfare and Institutions Code Sections 5000 et seq). Named after its authors, State Assemblyman Frank Lanterman and California State Senators Nicholas C. Petris and Alan Short, the LPS Act sought to, “end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders.” It also established a right to prompt psychiatric evaluation and treatment, in some situations, and set out strict due process protections for mental health clients.
This publication outlines the basics of the LPS Act for mental health consumers. Chapter 1 describes the LPS short-term holds: “5150”s, 72-hour holds for evaluation and assessment; and “5250”s, 14-day holds for intensive treatment. Chapter 2 describes the LPS conservatorship process, which governs treatment and placement of individuals found “gravely disabled” and in need of longer-term assistance through a third-party decision maker. Chapter 3 outlines the rights and protections given to mental health consumers on LPS holds and how they can be enforced.
The LPS statutes and regulations can be complicated. This publication is only a primer on the law. Because of the important liberty interests involved, consumers have the rights to the services of a patients’ rights advocate and, in some cases, an appointed attorney. If you or your loved one has questions about LPS, or needs assistance, it is important to reach out to a qualified attorney or advocate.
Chapter 1: Involuntary Treatment Holds
California law allows police officers and certain mental health professionals to take you into custody if they believe that, because of your mental illness, you are likely to cause or suffer specific kinds of harm. This is often referred to as a “5150 hold,” named after the regulation that authorizes it. Welf. & Inst. Code (WIC) § 5150.
Under this law, if you meet certain criteria, you can be held for up to 72-hours. This is not a criminal arrest. During that period, mental health professionals will examine you to determine whether you can be safely released, whether voluntary services would be appropriate, or whether you need additional treatment. WIC §§ 5151-5152. If a professional determines you need additional treatment, and if they also believe that you are either unwilling or unable to accept voluntary treatment, then they may file another hold for up to an additional 14 days. WIC § 5250.
Criteria for a Hold
A police officer or mental health professional cannot hold you just for having a mental illness. You can only be detained if an officer believes that your mental illness will likely cause some kind of harm. WIC § 5150.05. The officer or person treating you may take your mental health history into account, but you cannot be held based solely on your history. To be subject to a psychiatric hold, you must meet at least one of the following criteria, as a result of a mental health disorder:
Danger to Self
Most often, someone who is considered a danger to themselves has threatened or attempted self-harm or suicide.
Danger to Others
Threats or actual attempts to harm others are the most common way to meet this criterion.
Being “gravely disabled” means that someone is no longer able to provide for their own food, clothing, or shelter because of a mental health disorder. WIC § 5008(h). A person may be considered gravely disabled if, for instance, they are no longer eating enough to survive, or they have become unable to maintain housing.
Additional Information on Grave Disability
Someone incapable of caring for herself, but who can survive safely with the help of a willing third party, would likely not be “gravely disabled.” § 5350(3). See also Conservatorship of Early, 35 Cal. 3d 244, 253, 673 P.2d 209 (1983) (citations omitted) “…imposition of a conservatorship should be made only in situations where it is truly necessary. To accomplish this purpose evidence of the availability of third party assistance must be considered;” and O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493–94, 45 L. Ed. 2d 396 (1975) “…while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends.”
Being homeless, by itself, would likely not meet the “gravely disabled” criteria. However, someone who cannot or will not try to find food or shelter as a direct result of a mental illness would more likely be considered gravely disabled. See Conservatorship of Chambers, 71 Cal. App. 3d 277, 284, 139 Cal. Rptr. 357 (Ct. App. 1977) (“…the term [gravely disabled] is sufficiently precise to exclude unusual or nonconformist lifestyles. It connotes an inability or refusal on the part of the proposed conservatee to care for basic personal needs of food, clothing and shelter.”)
Also, though past acts may be considered, someone is not gravely disabled unless they are a present danger to themselves because of their inability to provide self-care. See Conservatorship of Benevuto, 180 Cal.App.3d 1030 (1986). The likelihood of future harm may also not be enough to meet commitment criteria. Id at 1034 n.2. (“If LPS conservatorship may be reestablished because of a perceived likelihood of future relapse, many conservatees who would not relapse will be deprived of liberty based on probabilistic pessimism. This cost is unwarranted in view of the statutory procedures available to rapidly invoke LPS conservatorship if required.”)
Note: A similar law allows the police (or designated others) to take you into custody if they think you meet the above criteria due to chronic alcoholism. WIC § 5170.
72-Hour “5150” Holds
At the beginning of a hold, you should be taken to a psychiatric hospital or other mental health facility where medical professionals can evaluate you. While in the hospital, staff will determine whether to request a longer hold for treatment, or whether you can be safely released.
The hospital does not need to hold you for the full 72 hours. WIC § 5152. The hospital should release you sooner if they believe that you no longer require evaluation or treatment.
By the end of the 72 hours, one of several things will happen:
- You will have been released, or;
- You will have signed in as a voluntary patient, or;
- You will be put on a 14-day involuntary hold (called “certification for intensive treatment”), or;
- You will be referred for a conservatorship. See ”Chapter 2: LPS Conservatorships.”
Your rights during a 72-Hour Hold
An involuntary hold is not a criminal arrest. You maintain certain rights as you are being taken into custody and detained.
- Property: The person taking you into custody must take reasonable precautions to safeguard your property. They must allow you to gather some personal things to bring with you. WIC § 5210.
- Phone call: The person taking you into custody should notify you that you may make a phone call to let someone know where you have been taken. WIC § 5150(g)(1).
- Notice and evaluation: You must be given a written copy of the petition explaining why you are being held for evaluation. WIC § 5208. This petition must contain the name and address of the petitioner; your name and other identifying information such as address, sex, and occupation; the facts that are being used as the basis for the petition; the names of anyone believed to be responsible for your care; and any other information the court may require. WIC § 5204. While you are being detained, the hospital must evaluate you. The person evaluating you will take into account your medical, psychological, educational, social, financial, and legal situation. WIC §§ 5008.
- Antipsychotic medications: You have the right to accept or refuse antipsychotic medications. You can only be given these medications after the doctor has given you written and verbal information about the effects and side effects and you have given your informed consent. However, you may still be given medications involuntarily in specific emergencies. You may also be given medications involuntarily if, after a hearing, a judge determines that you lack the ability to make a decision about taking the medication. WIC § 5332.
The Certification Review Hearing and 14-Day “5250” Hold
If the treating facility wants to hold you for longer than 72 hours, you have the right to a Certification Review Hearing. At this time, you are entitled to written notice that you are being held. This notice must include the specific reasons for which you are being held. WIC § 5251. You are also entitled to assistance from a patients’ rights advocate. This is someone who will help you understand your rights and advocate for your interests. WIC § 5325(h). This hearing must be held within four days of being certified for a 14-day hold, unless you or your advocate request a postponement. WIC § § 5250, 5254. You do not need to request this hearing, as it is automatically scheduled for you.
At the hearing, a neutral party will review whether there is enough evidence (called “probable cause”) to continue to hold you against your will. This hearing is for your benefit, and the hospital has the burden of justifying holding you. You are not required to prove why you should not be held, but you are allowed to present evidence to show why the hospital should not hold you for any longer. If the party conducting the hearing determines there is not enough evidence that you need to be held, the hospital must release you. WIC § 5256.
Rights During a Certification Review Hearing
You are granted certain rights and protections during a Certification Review Hearing.1 These include:
- The right to be assisted by an attorney or other advocate;
- The right to present evidence on your own behalf;
- The right to question people presenting evidence in support of your certification;
- The right to make reasonable requests to have people at the treatment facility attend the hearing;
- If you are given medication within 24 hours of your hearing, the person conducting the hearing will be informed of the fact that you have taken medication and of its probable effects on you.
Your hearing will likely be less formal than most court hearings. This is to encourage people to speak openly about the certification. Facility staff should notify family members and other people you request of the time and place of the hearing. Staff should also notify you that you have the right to request that they not share this information with any family or others whom you do not want to attend the hearing.
If you do not want to receive treatment, you should be open about it. Though in some cases a person might resist treatment because of a mental disorder, expressing your objection to treatment is not itself evidence of a disorder or a need for commitment. In other words, your desire not to receive treatment, without other evidence, is not enough to prove that you need treatment.
The Right to Request a ‘Habeas Corpus’ Hearing
A habeas corpus hearing allows you to challenge your hold by claiming that you are being held illegally. This hearing is not automatic. You must make a specific request for one by notifying a member of the treatment staff at the hospital or the patients’ rights advocate. If you request a hearing, you are entitled to be represented by court-appointed or private legal counsel. But be aware that a habeas corpus hearing may result in delay or other consequences. Be sure to consult with a lawyer or patients’ rights advocate on possible outcomes before requesting a hearing. WIC §§ 5254.1, 5275-5276.
Outcomes from a 14-Day Hold
There are several possible outcomes at the end of a 14-day hold:
- You may be released before 14 days. You may be released by staff, or at a certification review hearing, or at a habeas corpus hearing (this is a hearing where you ask a judge to review the legality of your hold. For instance, a judge may decide to release you if your rights were violated during the process leading to a hold), or;
- You will have signed in as a voluntary patient, or;
- If the person treating you determines that you need more treatment, you may be placed on another hold.
If the person treating you determines that you need to be held longer for treatment, the length of the hold depends on why you are being held. Under each type of hold you will have due process rights.
If you are still considered dangerous to yourself, you may be recertified for another 14-day hold. WIC § 5260.
If you are still considered dangerous to others, the court may put a 180-day post-certification hold on you. This hold is renewable. WIC § 5301.
If you are still considered gravely disabled, there are several possible outcomes:
- You may be placed on a 30-day hold for additional intensive treatment, if used in your county. WIC § 5270 et seq. Or;
- You may be placed under Temporary Conservatorship and then a full one-year Conservatorship, which is renewable. WIC §§ 5352.1, 5361. In this case, a conservator may be granted the power to make certain decisions for you, including where you live and how your money is spent. WIC §§ 5350, 5352. Or;
- In some circumstances, after being placed on a 30-day hold, conservatorship papers may be filed. In this case, the Temporary Conservatorship runs concurrently with (at the same time as) the 30-day hold. Not all counties will put the 30-day hold into effect. Check with your county patients’ rights advocate to find out if your county does. WIC § 5256. You should also read “Chapter 2: LPS Conservatorships.”
Tips to Help Avoid a Longer Hold
Being detained for treatment can be a difficult experience. Though you do not have complete control over the outcome, the following actions may help show that you do not need additional treatment:
If you are held for being a danger to yourself:
Try not to do anything to harm yourself, and do not make any threats to harm yourself. The person evaluating you will usually be checking to see that you have stopped any harmful behavior, AND that if you are released, you will not try to harm yourself again. It may be helpful to let staff know if you have a doctor that you can see when released, or medication available to you to treat symptoms that led to any harmful behavior.
If you are held for being a danger to others:
Being detained can be upsetting and stressful, but try not to be short-tempered or belligerent with other patients or staff. Do not provoke arguments, and do not let yourself be provoked. Do not push, grab, or hit anyone. Try not to touch anyone unless asked to by staff.
If you are held for being gravely disabled:
The person evaluating you will be looking for whether you are able to care for your own basic needs. While you are in the hospital, use this time to take care of yourself. Eat the meals that are provided. Try to get some sleep. If you came in without clothes or your clothes were taken from you, wear the clothing the hospital gives you. Use the bathroom and showers to clean yourself and take care of your basic hygiene needs.
Let staff know if you have access to your own food, clothing, and shelter. If these things aren’t available, you can try to let staff know that you at least know how to get food, clothing, and shelter, or that you know how to get help with these things. You do not have to prove that you can do this all on your own. If you have someone who can help you with your basic needs, ask them to explain to the facility or court, in writing if possible, their relationship to you and how they can help.
General Tips to Consider
If you know someone who can help you with treatment or your basic needs, or who can explain why you do not need to be hospitalized, it may be helpful to contact them. This could be a friend, family member, doctor, or anyone else who can help. If you have someone who has been helping you, or who is available and willing to help, they should submit a letter to the court stating so. A court will not consider someone’s ability to help unless they state it in writing. § 5250(d)(2). However, the hospital may be willing to speak with someone on the phone. This information is also important for your patients’ rights advocate or lawyer to have. If you have a hearing on whether you need to be held longer than 72 hours, this person or the information they provide may help the hearing officer or judge in making their decision.
While at the hospital, you will likely be with other people also being treated or held because of a mental illness. Respect their privacy and their personal space, especially near the nurses’ station, seclusion rooms, the telephone, TV, and while they are eating.
The hospital may provide activities while you are there. Though you will likely not be required to participate, doing so may show staff that you can safely interact with people. These activities may also be helpful for your own sake, by reducing stress or taking your mind off of your detention.
Chapter 2: LPS Conservatorships
LPS Conservatorship is a legal mechanism in which the court appoints a person to make certain legal decisions for you. This person is called a conservator. Your conservator may be able to make decisions such as whether you can start or stop taking psychiatric medications or accept other medical treatment. A conservator may also manage your money and decide where you will live. When you are on conservatorship, the court may limit your right to vote, to enter into contracts, to drive, or to own a firearm. The LPS conservatorship can last for a maximum of one year at a time, but it can be renewed in court at the end of the year.
The purpose of conservatorship is, "to provide individualized treatment, supervision, and placement." WIC § 5350.1. Conservatorship is defined as, "service designed for the financial and personal protection of individuals deemed to be gravely disabled under the provisions of the [LPS] Act." 9 CCR § 548(b). Conservatorship services include conservatorship administration, which means, "services provided by a designated conservator to manage a conservatee's financial resources and to assure the availability and adequacy of necessary treatment services and mental health social services." 9 CCR § 548(b)(2).
Conservatorship and “Grave Disability"
Your doctor or person responsible for your care may begin conservatorship proceedings if they believe that you have become, and are likely to continue to be “gravely disabled.” This is a legal term that means you are at risk of physical harm because you are unable to provide food, clothing and shelter for yourself due to a mental health disorder. WIC § 5008.
Many factors can affect whether a court may find someone gravely disabled. For instance, someone incapable of caring for herself, but who can survive safely with the help of a willing third party, would likely not be gravely disabled. See WIC § 5250(d) on 14-day certification holds, and WIC § 5350(e) on conservator appointments. Also, though past acts may be considered, someone is not gravely disabled unless they are a present danger to themselves because of their inability to provide self-care. The likelihood of future harm may also not be enough to meet commitment criteria. See Conservatorship of Benevuto, 180 Cal.App.3d 1030 (1986).
In the case your doctor or care provider believes you may be gravely disabled, they may make a recommendation to the Public Guardian’s office to start a conservatorship investigation. Not everybody that meets the definition of gravely disabled is automatically put on conservatorship.
An investigator will decide whether or not to request the court to start a conservatorship. WIC § 5354. If the investigation results in a recommendation for conservatorship, the recommendation shall designate the most suitable person to serve as conservator. WIC § 5355. If a petition is filed to begin a conservatorship, someone must give you a copy and tell you the time for the conservatorship hearing in court.
If you are in the hospital and are on a 14-day hold, at the end of the hold, you may be put on a temporary conservatorship for 30 days. WIC § 5352. To put you on temporary conservatorship, the court must believe that you are gravely disabled. The court may restrict some of your rights, like the right to choose a place to live, to a have a driver’s license, etc. You continue to have the right to refuse any medical treatment that the court has not ordered.
You are supposed to receive notice before the temporary conservatorship is established, but often people don't learn they are on temporary conservatorship until after they have been put on it.
When someone is placed on a temporary conservatorship, it is the duty of the Public Guardian’s office to investigate whether someone needs to be on a full LPS conservatorship.
If you know ahead of time that you are being considered for a temporary conservatorship, you can try to demonstrate that you do not fit the definition of “gravely disabled.” You can do this by showing that you will be able to secure food, clothing, and shelter. If possible, try to demonstrate these things to your care provider or social worker, so that they may decide not to recommend putting you on conservatorship.
Beyond a temporary conservatorship, a court may also place you on a “permanent” conservatorship. Technically, no conservatorship is permanent, but it may be renewed yearly (also known as “reestablishment”), and there is no limit to how many times it may be renewed. See the section below on “Ending a Conservatorship” to learn more about conservatorship renewal.
To be placed on a conservatorship, a professional person must first evaluate you and determine that you are both gravely disabled and unwilling or incapable of accepting treatment voluntarily. WIC § 5352. In addition to this, the conservatorship investigator must investigate all possible alternatives to conservatorship, and only recommend conservatorship if there are no suitable alternatives. WIC § 5354.
At a conservatorship hearing, a representative of the Public Guardian’s office will be in court and will tell the judge or jury why they think you need to be on conservatorship. At the hearing, the court will decide whether you need to be placed on conservatorship, as well as which rights you will retain and which rights you will lose as a result of the conservatorship.
In the case that the court places you on conservatorship, your conservator can be a friend or a family member. You may nominate who you would like to be your conservator, but it’s up to the judge to decide the most suitable person or agency for your conservatorship. WIC § 5355. If the court finds no person or agency is able or willing to serve as your conservator, the court will appoint your county Public Guardian. WIC § 5354.5.
Challenging a Conservatorship
Right to a Jury Trial
You have the right to request a jury trial to determine whether you are gravely disabled. However, you do not get a jury trial by default. You must make your request for a jury trial within five (5) days after the hearing on your conservatorship petition. If you request a jury trial before that hearing, the request constitutes a waiver of the hearing. WIC § 5350(d)(1).
If you select a jury trial, a jury must be unanimous in finding you gravely disabled before you may be put on conservatorship. And the evidence presented at trial must prove grave disability beyond a reasonable doubt. See Sorenson v. Superior Court (App. 6 Dist. 2013) 161 Cal.Rptr.3d 794, 219 Cal.App.4th 409.
Your trial should occur within ten (10) days of your request, though the court may continue it for a period of no more than fifteen (15) days if requested by your counsel.
- When in court, dress as neatly as possible.
- Even if you disagree and feel angry about what might be said about you in court, it is important to remain calm.
- Be ready to explain in court how you will be able to take care of your basic needs, including having food, clothes, and a place to live.
- If you know someone who will testify on your behalf, especially by helping you with food, clothing, and a place to stay, try to make sure they will show up in court for your hearing.
- You should be prepared to tell the judge what kind of mental health or medical treatment you would get and where you would go to get it.
You have the right to an attorney, and if you do not have an attorney, the court will appoint one for you. Usually a court-appointed attorney will be a public defender. The court must appoint an attorney within five days after the date of the petition for conservatorship. WIC § 5365. You can discuss with your attorney the possibility of having the court appoint an independent psychiatrist separate from the hospital to evaluate you and to give another opinion as to whether you really need conservatorship.
You should be prepared to tell the judge why you are not gravely disabled. Develop a detailed plan to show how you would provide for your own food, clothing and shelter. Address the "who," "what," "where," "when," and "how."
You don't have to own your own home or have your own apartment to prove you have a place to live. Even if another person, such as a friend or relative, is willing to give you a place to stay, this can help you beat the conservatorship. See Conservatorship of Jesse G., 248 Cal. App. 4th 453, 460, 203 Cal. Rptr. 3d 667, 672 (2016). This is called "third party assistance," and can be used to challenge conservatorship. The person should provide a written statement for the judge describing their willingness to help you. WIC § 5350(e).
Some people even find that good use of community resources such as food banks and community shelters can help them stay off conservatorship. If you have a good doctor or therapist in the community, it may be helpful to get them to testify for you on your behalf.
If you plan on receiving Social Security or other benefits, you should explain to the judge that you know how to sign up for and receive those benefits.
Placement While on Conservatorship
Once the court appoints a conservator, the conservator must decide where you will live. The conservator’s first priority is to place you in the least restrictive appropriate placement. WIC § 5351(a)(1)(A). This may include your own home or the home of a relative. If that is not an option, the next priority would be to place you in a suitable facility as near as possible to either your or a relative’s home. WIC § 5351(c)(1). Possible alternative placements may include a state or county hospital or similar facility. WIC § 5358(a)(2).
Your conservator may move you to a less restrictive setting without having to provide notice to the court. Your conservator may also move you to a more restrictive setting, but must provide written notice to the court, your attorney, the county patients’ rights advocate, and any other designated person. Your conservator may move you to a more restrictive setting if they have reason to believe your condition has changed such that it requires more restrictive placement, or that you have become an immediate danger to yourself or others. WIC § 5358(d)(1).
It should be noted that placement requirements are different if your initial commitment was related to a felony involving death or serious bodily injury. WIC § 5008(h)(1)(b). In that case, among other considerations, placement will prioritize treatment as well as protecting public safety. WIC § 5358(a)(1)(B). See also WIC § 5358(c)(2) and WIC § 5358(d)(2).
Challenging Your Conservatorship Placement
When you are on a conservatorship, your conservator usually has the power to decide where you will live. That does not mean that you are completely at the mercy of your conservator. If you and your conservator disagree about your placement, you can go back to court to challenge the appropriateness of your placement. This is called having a placement review hearing. You can request a placement review hearing in the county where the conservatorship was established or the county where you are living. WIC § 5358.7. However, once you go back to court for a placement review hearing, you must wait another six months before having another one. See WIC 5358(d)(4) and WIC § 5358.3.
At a placement review hearing, you are only asking the judge to review the appropriateness of your placement, not whether you should be on a conservatorship. The best way to get a placement review hearing is to contact the attorney who represented you at your conservatorship hearing. If you did not have money to pay for an attorney, you were probably represented by a court-appointed attorney. Most court-appointed attorneys are public defenders.
Your social worker should have the name and phone number of your court-appointed attorney. You can also call the patients’ rights advocate to find out how to contact your attorney. When you call your attorney, give your full name and date of birth. If your attorney is not in the office, ask if you can leave a message. Be sure to leave your name, date of birth, name of facility where you are living, phone number where you can be reached, and the best time to reach you. Also make sure to say that you are requesting a placement review hearing.
You should give your attorney at least two weeks to try to contact you. If your attorney fails to contact you, you can file your own petition with the court requesting a placement review hearing.
Ending a Conservatorship
Even if you lose your conservatorship hearing or trial, there are things you can do to challenge your placement into a conservatorship.
You can petition (ask) the court for a rehearing to see whether you should be on a conservatorship. If you ask, you are entitled to a rehearing as to whether you should be on a conservatorship at all. At a rehearing, you have the burden of proving that you are not gravely disabled. You do not have the right to a jury trial at the rehearing. WIC § 5364. Also be aware that once you have had your rehearing, you may not request another rehearing for six months. WIC § 5364.
The easiest way to request a rehearing is to contact the lawyer who represented you when you were placed on conservatorship. Tell the lawyer that you would like to petition the court for a rehearing.
Writ of Habeas Corpus
The United States Constitution allows anyone who believes they are being held illegally by the government (including by a conservator) to file a "writ of habeas corpus" to challenge the confinement. There is also a special law in California that allows any state hospital patient to file a writ. WIC § 7250. Ask your lawyer or advocate for assistance.
Annual Conservatorship Renewal
After each full year of conservatorship, the county must decide whether to drop the conservatorship or to ask the court to renew it. If the county decides to renew your conservatorship, you may challenge it and ask for a new trial before a judge or a jury. WIC § 5362.
Rights during a Conservatorship
If you are in the hospital under a LPS conservatorship, you have the same rights as other people to wear your own clothes, to make confidential phone calls, to receive unopened correspondence, to have visitors daily, to have individual storage space, to keep reasonable amounts of your own money for canteen expenses, and other rights. WIC § 5325.2 Your conservator does not have the power to restrict or limit these rights in any way.
A judge may limit certain rights based on the recommendations of the person who investigated whether you should be put on a conservatorship. These include your right to vote, have a driver’s license, enter into contracts, refuse to consent to routine medical treatment, and refuse to consent to treatment related to being gravely disabled. WIC § 5357.
If you feel you have been forced to live in a place that is too restrictive for your needs, or the conservator has been given too much power over your life, you can ask for a hearing in court to review these things. Be aware that once you have filed this petition, the court will not accept another petition until six months after your last petition. WIC § 5358(d)(4) and WIC § 5358.3.
Additionally, a conservator can’t require you to go through any surgery unless you’re at risk of death or serious bodily injury, with the exception that you’ve either given prior consent or a court has issued an order allowing that specific surgery. WIC § 5358(b). If you want to contest the request for a court order, you may petition the court for a hearing to be held prior to granting the order. WIC § 5358.2.
PLAN OF ACTION TO CHALLENGE CONSERVATORSHIP TO SHOW THAT I AM NOT "GRAVELY DISABLED"
[FILL OUT FORM AND GIVE TO YOUR ATTORNEYAND THE CONSERVATOR]
1. Name. Address. Case number, if known.
2. My monthly income is ______________. I get the money from _______________ ___________________________. This could include, Social Security Income (SSI), Veteran's Benefits, or work income.
3. I plan to live at this address. I own the property, or I will spend this amount of money for rent.
4. I will provide for my food this way. I will spend this amount of money on food.
5. I will provide for my clothing this way. I will spend this amount of money on clothing.
6. There could be friends or family that can help me by providing for my food, clothing and shelter. Their names and how to contact them is listed. (*Be sure to attach a written note from the person willing to help that says that they are willing to help and have them state how to reach them.)
7. If I need treatment, I am willing to get treatment from this person or agency.
8. I can get to my appointments or meetings this way.
Chapter 3: Your Rights under the LPS Act
Under the Lanterman-Petris-Short (LPS) Act and other laws, even if you are receiving treatment involuntarily, you maintain certain patients’ rights. For example, you are statutorily entitled to individualized treatment that is least restrictive of your personal liberties. You have the right to use the telephone and have visitors. WIC § 5325. You also have the same state and federal rights granted to any other citizen while you are receiving treatment, including the right to receive medical treatment and the right to be treated with dignity. WIC § 5325.1.
There are two types of rights in LPS: (1) rights that can never be denied; and (2) rights that can be denied, but only if there is “good cause.” When a right is denied for good cause, it must be denied in the least restrictive way possible. Your rights, and when they may be denied, are described below.
Mental health facilities must also comply with the patients' rights provisions found in the California Welfare & Institutions Code (WIC).
WIC § 5325.1 provides that, “persons with mental illness have the same legal rights and responsibilities guaranteed to all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California unless specifically limited by federal or state law or regulations.”
These rights include, but are not limited to:
- The right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual.
- The right to dignity, privacy, and humane care.
- The right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect. Medication shall not be used as punishment, for the convenience of staff, as a substitute for a treatment program, or in quantities that interfere with the treatment program.
- The right to prompt medical care and treatment.
- The right to religious freedom and practice.
- The right to participate in appropriate programs of publicly supported education.
- The right to social interaction and participation in community activities.
- The right to physical exercise and recreational opportunities.
- The right to be free from hazardous procedures.
- The right to refuse psychosurgery (brain surgery).
- The right to see and receive the services of a patient advocate who has no direct or indirect clinical or administrative responsibility for the person receiving mental health services.
The above rights reside with the person, are not affected by conservatorship, and apply to both voluntary and involuntary patients. WIC §§ 5325, 5325.1.
As previously discussed, certain rights under WIC § 5325 may be denied, but only upon a properly documented showing of good cause. WIC § 5326. However, rights under § 5325.1 may not be curtailed, and the penalties for intentional violation include civil fines and license revocation, as well as individual actions against the facility for damages. WIC § 5326.9(d)-(e).
Denial of Rights for Good Cause
Some rights under the LPS act may be denied for “good cause,” which means that the facility cannot deny you that right without showing at least one of only a few narrowly defined exceptions. Following is a list of rights which may be denied for good cause. WIC § 5325.
- The right to wear one’s own clothing.
- The right to keep and use one’s own personal possessions, including toilet articles, in a place accessible to the patient.
- The right to keep and spend a reasonable sum of one’s money for small purchases.
- The right to have access to individual storage space for his or her private use.
- The right to see visitors each day.
- The right to have reasonable access to telephones, both to make and receive confidential calls or to have such calls made for them.
- The right to have ready access to letter-writing materials, including stamps, and to send mail and receive unopened correspondence.
- Other rights, as specified by regulation.
The rights specified in WIC § 5325 may not be waived by the person's parent, guardian, or conservator.
Though a patient has the right to refuse convulsive treatment, that right may be denied under limited circumstances, as set out in WIC § 5326.7.
Requirements for Good Cause Denial
To deny a right for good cause, the facility must show it has good reason to believe that:
- The exercise of the right would be injurious to the patient, or;
- It would seriously infringe on the rights of others, or;
- The facility would suffer serious damage if the right is not denied;
- AND there is no less restrictive way of protecting these three interests.
If staff denies one of these rights, the reason for the denial must be directly related to the specific right denied. Staff can neither deny your rights as punishment nor use your rights as privileges for good behavior. 9 C.C.R. § 865.2.
Facility staff sometimes mistakenly believe that they can deny a right as a condition of admission, as part of a treatment plan, or because the patient or another person speaking on the patient’s behalf has agreed to the denial. None of these reasons meet the good cause criteria. State laws and regulations specify the following:
- Rights may not be denied as a condition of admission, as part of a treatment plan, or for the convenience of staff, for punishment nor may they be treated as a privilege to be earned. 9 C.C.R. § 865.2(b)(c).
- Treatment modalities may not include any denial of rights. 9 C.C.R. § 865.2(c).
- Waivers signed by the patient, responsible relative, guardian, or conservator cannot be used to deny a right. 9 C.C.R. § 865.2 (c); WIC § 5325.
Notification and Documentation of Denial of Rights
Each denial of a patient's rights for good cause must be documented in the treatment record. WIC § 5326; 9 C.C.R. § 865.3. This documentation must take place immediately, and must be done regardless of the gravity or frequency of the denial. There are also specific guidelines for documenting any additional denials of rights while a patient is in seclusion and restraint. 9 C.C.R. § 865.4(c).
Patients are entitled to an explanation for each denial of rights. This means that a patient must be told each time a right is denied and the reason why the right was denied. The patient must also be told of the content of the notation in their treatment record. 9 C.C.R., § 865.3.
Each denial of a patient’s rights must be noted in the patient’s treatment record. Documentation must take place immediately whenever a right has been denied. Pursuant to 9 C.C.R., § 865.3, the documentation must include the following:
- The date and time the right was denied;
- The specific right denied;
- Good cause for the denial of the right including less restrictive ways considered or tried;
- Date of review if the denial was extended beyond 30 days;
- The signature of the professional person in charge of the facility or their designee authorizing the denial of rights.
Restoration of a Right
Once a right is denied, it must be restored as soon as good cause for the denial is no longer present. 9 C.C.R. §§ 865 et seq. Staff must also track each denial in your treatment record. WIC § 5326. When a right is denied, staff must use the least restrictive means of managing the behavior that led to the denial.
This means that a facility is obligated to continually assess whether or not good cause exists for the denial of a right. If, for example, a patient was denied his right to wear his own clothes because of a concern about self-harm, staff must give him frequent opportunities to show that he can wear his clothes without harming himself.
Contacting a Patients’ Rights Advocate
Patients have the right to see and receive the services of a patients’ rights advocate, or PRA for short. WIC § 5325. A PRA can help educate you about your rights and advise you on what options you have regarding your treatment. A PRA works independently of any facility or clinical staff, and only represents the patient’s interests.
If you ever have questions about your rights or treatment options, you can contact a PRA for help. You can access a PRA either by directly contacting the PRA office in your facility, or by requesting that staff put you in contact with a PRA. When working with a PRA, you have the right to meet with them privately to discuss any issues you are concerned about.
If you are unable to contact your PRA, you can reach out to the California Office of Patients’ Rights using the following contact information:
California Office of Patients’ Rights
1831 K Street
Sacramento, California 95811-4114
Telephone: (916) 504-5810