By Meghan Pluimer, HAC Managing Attorney
On October 1, 2023, seven California counties (San Diego, Orange, Riverside, San Francisco, Stanislaus, Tuolumne, and Glenn) will roll out the first CARE Courts under Governor Newsom’s CARE Act, which was signed into law last September.1https://www.dhcs.ca.gov/Pages/CARE-ACT.aspx#:~:text=Senate%20Bill%20(SB)%201338%20(,through%20a%20new%20civil%20court Since first hearing about the CARE (Community Assistance, Recovery, and Empowerment) Act, which creates a new court system that will mandate treatment plans for individuals who are unhoused and mentally ill, HAC has had serious concerns about the harm it will do to our clients. I have personally been involved in drafting and submitting opposition statements and comments at every opportunity. Now that the law has passed, the HAC Policy Committee is following its implementation closely and we are poised to do whatever we can to reduce harm to our clients.
A few months ago, a friend asked me why I opposed CARE Court, given the positive messaging they were hearing in the media. The California Health & Human Services Agency described CARE Courts as “a new compassionate process, providing additional tools to the toolbox,” that provides services while preserving self-determination, prevents more restrictive measures like conservatorships, and will help people stabilize and exit homelessness. I explained that these broad, buzzword-laden narratives overlook a critical problem with the Act: it removes a person’s ability to make health care choices for themselves and simultaneously does not guarantee that counties actually make available the resources the person needs. In fact, the Act will only further destabilize an already vulnerable population, which is the precise opposite of the Act’s purpose.
The CARE Act creates a brand-new court process by which people with schizophrenia and other psychotic disorders can be mandated to participate in a court-ordered plan of treatment. It is advertised as providing the most vulnerable Californians with access to critical behavioral health services, housing, and support. However, this Act does not create any new resources or housing opportunities. This is a huge flaw, as what the majority of these “most vulnerable” people need is housing. We have seen time and again that HAC clients who have access to stable, affordable housing are less likely to face ongoing crises and are proven to stabilize across the board. They are more likely to access regular medical care voluntarily and reduce any substance use.
The launch of CARE Courts by California’s legislature at the behest of Gov. Newsom does not create any new resources or housing opportunities for unhoused people.
When I sought out a career in the law, I aimed to do impact litigation to create systemic change for marginalized populations. I graduated law school in 2008, during the Great Recession, and was forced to take a job that was outside of my goals. After two years, I was desperate to get out and an opportunity arose to cover someone’s parental leave at HAC for six months. I was certain I did not want to do legal aid. I had done some during law school and found I personally struggled with the enormity of clients’ needs versus the limited remedies available to them via the law. However, as I was determined to leave the other job, I took this temporary position to buy myself time to find a role in impact litigation. Shortly after, someone approached me with an offer to do impact litigation, and I quickly declined. It turns out, I love doing direct legal services. I just needed to learn how to do advocacy the HAC way. This past January, I reached 12 years with this organization.
HAC’s advocacy model is client-centered, barrier-free, and trauma-informed. We strive to give our clients excellent legal representation while maintaining their dignity and autonomy. This has enabled our organization to build trust with our clients and effectively represent them. For more than 30 years of using this approach, we have seen tangible successes. Clients get into care, get stable income, and get housed. This model works and it does so without substituting our judgment for that of our clients.
CARE Courts, on the other hand, are antithetical to every core principle of our advocacy model. First, we know from more than three decades of doing this work that forced treatment seldom, if ever, actually works. Little can be done to force adherence to a treatment plan, including threat of incarceration or loss of liberty. Lawyers and judges who work in these systems can attest that court-ordered mental health treatment programs are generally ineffective and lack positive outcomes. Instead, forcing treatment is inherently traumatizing and can even increase the severity of one’s illness and exacerbate the conditions keeping them in crisis and unhoused. It is important to note that for people who truly do not have the capacity to make health care decisions for themselves, conservatorship laws already exist.
We know from more than three decades of doing this work that forced treatment seldom, if ever, actually works.
Second, although proponents claim CARE Plans will preserve self-determination, individuals who agree to voluntarily engage will not even qualify for a CARE plan, and so people will necessarily be forced onto plans against their will. There are many valid, prudent reasons a person may not seek mental health care or take medication, including past traumatic experiences or consequences worse than the illness itself. Our clients often have been ignored or mistreated by providers and had their histories used against them in serious matters such as child custody determinations and housing applications. Some of our clients have become more ill from using certain prescribed medication or being misdiagnosed.
Moreover, we have seen that a system that relies on superficial medical analysis to restrict freedom is not only dangerous, it can be life threatening. Through our many years of Social Security advocacy, we have seen thousands of medical evaluations from government-contracted mental health professionals that are arbitrary, wildly inconsistent, and fail to accurately depict our clients’ symptoms, limitations, or abilities. Our clients have suffered serious deterioration of their conditions and even tragic loss of life waiting for stabilizing resources due to poor medical analyses by medical evaluators.
The CARE Court system also enables family members or even roommates to petition for individuals to be placed in CARE plans and allows them to obtain confidential information about an individual against their will. Without proper safeguards, this will inevitably include family members with dysfunctional, toxic, or even abusive relationships with individuals. Human Rights Watch cautioned that “interpersonal conflicts between family members could result in abusive parents, children, spouses, and siblings using the referral process to expose their relatives to court hearings and potential coerced treatment, housing, and medication.”
“Interpersonal conflicts between family members could result in abusive parents, children, spouses, and siblings using the referral process to expose their relatives to court hearings and potential coerced treatment.“
Human Rights Watch
The consequences of noncompliance with a CARE Plan are also unclear. The CARE Act claims it will maintain self-determination and not force medication but does not explain what will happen if an individual does not adhere to a treatment plan. The only consequence mentioned is potential referral for conservatorship proceedings. The inevitable increase in conservatorship proceedings is concerning both for the severity of being conserved and the state’s lack of resources to assess and properly care for people. Conservatorship is a harsh loss of liberty and superior court judges in California are already at capacity, as are the state’s institutional beds.
Lastly, and significantly, it does not appear the Act will do anything to address the underlying causes of homelessness. Even if an individual successfully completes a CARE Plan and is medically stabilized, the CARE Act does not dedicate additional dollars for affordable housing, and such housing remains very scarce in California. It is likely that even stabilized individuals will exit a CARE Plan without access to housing and return to conditions that forced them into compelled CARE participation in the first place.
In sum, forcing treatment may temporarily remove people from the streets of California, but will do nothing to address the underlying systems of deep inequality and exclusion from economic and housing opportunities that lead to chronic homelessness. What chronically homeless people in California need above all else is housing. Housing has a profoundly stabilizing impact that decreases trauma and crises, enabling individuals to seek treatment or services if they so choose. The legal aid and disability rights communities have been vehemently expressing opposition to CARE Courts based on decades of firsthand experience but have been largely ignored. Our goal over the coming months is to do whatever we can to reduce or mitigate harms that may be inflicted on our clients as the Act begins to roll out.