In honour of #WorldMentalHealthDay, let's talk about how the Legislature of California has been passing laws to systematically limit the rights of mentally ill people for many years — largely without any public criticism. A thread:
Like most jurisdictions, California law has long allowed a person to be taken into custody and imprisoned if the person presents an imminent danger to themselves or others. This is a form of preventive detention — imprisoning somebody because of what they might do.
Preventive detention is a potential threat to liberty, because the person might not actually have done the thing that the state is preventing them from doing. Crystal balls are imperfect, and a person's freedom hangs in the balance.
Prior to 2001, the touchstone was essentially whether the person was presently an imminent danger to themselves or others (or gravely disabled). Assembly Floor Analysis of AB 1424 (Stat 2001, Ch 506) at *4 (Sept 5, 2001).
In 2001, the Legislature broadened the test so that a person could be detained based on historical evidence including "evidence presented by the family ... or persons who have provided ... mental health or related support services to the patient" in the past. Id.
In other words, as of 2001, if a person has *ever* accessed mental health services in the past, that fact could be used against them in determining whether they should be preventively detained in the future. Stat 2001, Ch 506, § 5. This made it much riskier to access treatment.
Not content to stop there, the Legislature introduced a further restriction on liberty in 2015 with AB 1194, Stats 2015, Ch 570, § 1.
This 2015 law provides that when deciding whether to take a person into preventive detention, the inquiry "shall not be limited to consideration of the danger of imminent harm".
Now, anyone who has ever accessed mental health services in the past is at risk of being preventively detained — at any time — even if they don't prevent a danger to themselves or others in the present, simply because they may have at some point in the past.
To support the bill, the California Psychiatric Association ("CPA") said that "people ... can keeps signs of aberrant behavior in check for the 20 minutes it might take police to interview them, and present no good reason for an officer to take any action" (Assem. Health Analy.).
According to the CPA, police officers should be able to detain people who present with no problems, simply because the person has accessed mental health services in the past. Id. The bill passed, and this is now the law in California.
Mentally ill people in California now face a difficult choice. If they ever access treatment for their problems, even voluntary outpatient treatment — including a visit to a therapist — that can be enough to cause them to be detained and imprisoned some time in the future.
The law provides no date cut off after which historical access of services becomes irrelevant. Once you access health services, you are forever at risk of loss of liberty in California. This is terrible news for mentally ill people.
The root cause here is that the Legislature is fixated on the idea of imprisoning people as a solution to mental health. We need to step back and think about the disincentives this creates. People will not access services if it will lead to their imprisonment down the road,
The United States Constitution enshrines a certain ideal of liberty, and that ideal should apply to mentally ill people as well. Legislatures need to stop making it easier to lock people up for mental illness. Legislatures must stop punishing people for getting treatment.
