California may now have a new method for treating the mentally ill and getting the homeless off the streets—even if it is against their will.
The Community Assistance, Recovery, and Empowerment (CARE) Act, was signed into law last month by Democratic Gov. Gavin Newsom. The law creates CARE Courts, a new form of civil mental-health court designed to usher untreated, severely mentally ill individuals into medical treatment and other forms of state support.
While many have lauded the law as an important step toward getting treatment for the most severely mentally ill Californians—many of whom are homeless—civil liberties organizations have expressed concerns about the bill's potential for abuse and the expansion of state power. While some severely mentally ill people certainly need treatment, the potential for coercion is cause for serious concern.
According to the bill text, CARE plans can include mandates to enter "behavioral health care, including stabilization medication, housing, and other enumerated services." Those who do not complete the directives of their CARE plan risk involuntary hospitalization or being placed under a conservatorship.
According to a California Health and Human Services Agency FAQ, the process would work like this: someone in one of several listed positions, including family member, first responder, clinician, and adult protective services, can a petition arguing that an individual meets the requirements for participation in the CARE program.
The requirements are that: the person must be over the age of 18 and currently suffering from severe psychotic mental illness (such as schizophrenia) that is not currently stabilized in voluntary clinical treatment; a CARE plan or agreement would be the least restrictive way to ensure the respondents stability; and the respondent is likely to benefit from such a plan or agreement. Additionally, the person must either be unlikely to "survive safely in the community without supervision and the person's condition is substantially deteriorating," or "the person is in need of services and supports in order to prevent a relapse or deterioration that would be likely to result in grave disability or serious harm to the person or others."
A CARE Court would then review the petition to determine if the respondent meets the criteria for involvement in the CARE program. If there is insufficient evidence that the individual meets necessary criteria, or the respondent voluntarily accepts services, the case is dismissed. If the criteria are met and the respondent declines services, an attorney is appointed to the respondent, and a series of hearings takes place.
If, after the end of these hearings, the court again determines that the respondent does meet CARE criteria, it will order the county behavioral health agency, the respondent's attorney, and a "voluntary supporter" to attempt to persuade the respondent to enter into a CARE agreement, which is a voluntary "settlement" which requires the respondent to enter into certain stabilizing medical care and resources.
If such a voluntary agreement is not reached, the court will order that the respondent be clinically evaluated. During a followup hearing, the respondent will have an opportunity to respond. If the court again finds that the respondent meets the CARE criteria, the court will order that the respondent, their counsel, and the county health agency develop a CARE plan. This plan can stay in place for up to one year, with the possibility of a voluntary one-year extension.
While CARE agreements can provide relief to mentally ill individuals who want help, the coercive nature of CARE plans should give pause to those concerned about the bill's ability to become coercive—and its potential to be overzealously used.
While those brought before CARE courts would receive an attorney, according to the information available from the California Health and Human Services Agency, it is unclear whether a mentally ill person could effectively refuse a CARE plan. Further, while mentally ill individuals are theoretically supposed to collaborate on their CARE plans, it is unknown if they would have meaningful veto power over provisions like mandated medication or hospitalization.
Civil liberties groups, disability rights organizations, and journalists who have been reporting on the issue for years have all expressed opposition to the bill, citing its potential for abuse. The CARE Act "merely create[s] a new legal framework for the same failed approach, making mental illness tantamount to a crime," wrote The Los Angeles Times editorial board in July. "But the only real step forward is Newsom's separate but related commitment to fund thousands of affordable housing units, some of which counties could use to bolster their slim stock of supportive housing." This refers to the California Comeback Plan, a $22 billion program that claims it will create over 84,000 new housing units and "exits from homelessness."
CARE plans, though presented as an alternative to much more restrictive court-ordered guardianships, seem startlingly similar to them. Both systems may strip adults of their rights to make personal decisions, and both have the potential to ensnare individuals who aren't incompetent. "In the worst cases of guardianship abuse, functioning adults are completely stripped of their autonomy: where they live, where they can go…even how and where they will die," wrote C.J. Ciaramella in the May 2022 issue of Reason. "Even with comparatively strong oversight…bad actors, conflicts of interest, and crushing caseloads can undermine those protections."
In addition to civil rights concerns, the CARE Act asks much of county health agencies and other local services, demanding that they massively expand their capacity to provide housing and mental health services. How exactly the state will expand these services with its current staff and resources (and how much the taxpayers will pay for it) is unclear.
Only time will tell if CARE plans are utilized as a last resort solely for individuals who are truly a danger to themselves and others. But there's no reason to think that a system that gives local governments new power to force people off the streets will be immune from abusive coercion and ineffective at solving the actual housing affordability problem.