LPS Temporary Conservatorship (T-CON) and Permanent Conservatorships Presented by Jim Marquez, IMFT, Title IX Advocate Orange County Patients’ Rights Advocacy Services Tips to get you Started: 1) Familiar Yourself with the Mental Health Laws and Regulations. 2) Find out what your County expects of you as an Advocate, job description, policies you are expected to follow, and your chain of command. 3) Find out about the mental health community, who the key players are, their expectation of the advocate. 4) Meet the Facility Administrators 5) Establish yourself as a resource; an honest, credible, and trust worthy contact for anyone seeking information about Patients’ Rights. If you don’t know an answer to a questions. Say so, “I don’t know that answer. Let me find out”. “You stumped me today. Let consult with supervisor (colleagues)”. “I have never been asked that questions before. Give me a ___ days for me to get an answer for you. You are not expected to know all the answers for everyone aspect of the law. The learning curve is 2 years minimum to simply learn the basics of Patient’s Rights Advocacy. Health Care Agency Behavioral Health Services

What will be covered? How does the LPS begin? Definitions of Temporary Conservatorship (T-CON) vs. Permanent 5385 Conservatorship. What is Gravely Disabled (GD)? What about Krishna G. (KG) legal decision? How can an LPS Advocate help? It begins with a 5150 for Danger to Self (DTS); Danger to Others (DTO) or Gravely Disabled (GD). Covered in the next slides

The Legal Road for Gravely Disabled (GD) 5150 (72 hours) DTS, DTO or GD 5250 (14 days) DTS, DTO or GD 5353 (30 days) Temporary Conservatorship (T-Con) for GD 5358 (1 year) Permanent Conservatorship for GD Each hold has their level of nuance and “due process” particulars. We will focus on T-CON and 1-Year Conservatorship. Also beware that some California Counties have 5270 (30 day hold not leading to a T-CON or Conservatorship.

T-CON vs. Permanent 30 days 1 year (Renewable) Petition court without a Hearing Investigation by County Officer (Public Guardian) T-CON Conservator (Public Guardian) W&I § 5371 Lasts up to 12 months Renewable for another 12 months Right to a Jury Trail Private or Public Guardian What are the differences between a T-CON and a Permanent Conservatorship. 1) A T-CON may be initiated by petition to the court without a hearing. This means neither the petitioner, (Temporary Conservator) the proposed conservatee (client) or his/her representative (Advocate or Attorney) must appear in court prior to the establish of a Temporary conservatorship. 2) Additionally, NO person who investigates or administers the conservatorship may have a financial interest in the facility where the conservatee is placed (California Welfare & Institution Code 5371). Duties of Temporary Conservator: Responsible for ensuring that arrangements made to provide conservatee with Food, Clothing & Shelter during the time of the Temporary Conservatorship. **Conservatorship retains the Right to request a release by Writ of Habeaus Corpus. Additionally, the Temp Conservator MUST take “all reasonable steps to preserve the status quo concerning the conservatee’s preious place of residence” Meaning that Temp Conservator cannot sell or dispose of the conservatee’s property, either land or personal property, without specific court approval. (California Welfare & Institution Code 5353).

T-CON Factors Client benefits – SSI/SSDI Legal Issues Registered Sex Offenders, Tickets, Child Support, Medical Issues Family & Friends Does the client have current public Entitlements? SSI – Supplemental Security Income; SSDI – Social Security Disability Income; Beneficiary of an Estate or Will; While on a T-CON factors that will lead to a Permanent 1 year Conservatorship include: Legal; Does client have a Mental Disorder? Is anyone able to assist client with food, clothing & shelter? Could the client benefit from a Full Service Partnership Program (FSP) or Mental Health Services Act (MHSA) program. Examples in Orange County: Opportunity Knocks – Target population is the chronically mentally ill, homeless or in eminent risk of homelessness with history of or currently in the correctional mental health unit in Orange County Jail. May or May not be dually diagnosed. Older Adult Recovery Services – eligible individuals are seniors, ages 59 and older, who have a serious and persistent mental illness, may have a co-occurring substance abuse disorder, and exhibit an impairment in their ability to function in the community. Individuals eligible for the program typically do not have access to other resources. Registered Sex Offenders – what is the offense and restriction: Does it have to be reported? See: http://www.meganslaw.ca.gov/

Legal Rights under a T-CON Request a Writ of Habeas Corpus Request Assistance from Patients’ Rights Advocate or attorney Request evaluating psychiatrist to write a discharge plan. Medication Informed Consent All the rights granted by the federal & state constitution and laws unless specifically limited by federal or state lawa and regulations (Welfare & Institutions Code Section 5325.1) Examples include; The Right to Humane Care The Right to be Free from Abuse or Neglect The Right to Social Activities and Recreation The Right to Education …participate in approprate programs of publicly supported education The Right to Religious Freedom and Practice - this includes NOT participating in religious practices or you do not have to accep6t a visit form a clergyman or any religious unless you want to. The facility should be informed of any special religious needs. Examples my include religious prayers (Islam); dietary needs (Kosher, etc.)

Legal Rights under a Permanent Conservatorship Right to a Jury Trail Notice of Appeal (60 days) Request a Placement Hearing Writ of Habeas Corpus Annual Reestablishment Hearing Conservatee’s Rights still remain under W&I Code 5325 (i) Rights can’t be waived or denied by conservator. Courts may determine if they lost or limit right to: The right to refuse or consent to other routine medical treatment unrelated to remedying or preventing the recurrence of a grave disability; The Right to enter into contracts; (OC is under $50) The privilege (suspend) of possessing a driver’s license; and suspend your right to own a firearm The right to vote.

Conservator Powers & Duties Least Restrictive Setting (W&I § 5358) Court Hearing for medical treatment (W&I § 5358.2) Financial Decisions (Cal. Probate Code § 2401) Assessment of Placement (W&I 5359) * A conservatee is entitled to be placed in the least Restrictive setting and as close as possible to the conservatee’s home. Any change in placement of the conservatee to a more restrictive setting than the court determined placement must be reported to: The Court; The conservatee’s attorney; The Patients’ Rights Advocate; And others designated by the court (Cal. W&I Code 5358) Conservator does NOT have the authority to order medical treatment that the court did not approve at the same time it established the conservatorship. The conservator must go back to court and obtain a court order. (W&I 5358.2) and the conseravatee is entitled to a court hearing before the court issues the order for medical treatment. Exception: is an Emergency in which loss of life or serous bodily injury would result. * This ensure that a conservatee’s rights are protected, the facility serving the individual and the conservator must assess whether the individuals needs the care and treatment provided by the facility. ALTERNATIVE placement must be sought when the individual could receive services in a less restrictive or more appropriate setting (Cal. W&I Code 5359).

What is GD? The legal standard is “grave disability.” Grave disability means that you are not able to provide for your own food, clothing, and shelter due to a mental disorder. Welfare & Institution Code § 5008(h)

Krishna G. & Donna H. Evidentiary Hearing for clients placed on a T-CON, if the patients request such a hearing. Client retains the right to medication informed consent Riese v. St Mary’s Hospital & Medical Center (Capacity Hearing). State appeals court finds Marin County needs to protect rights of mental patients By Richard Halstead Marin Independent Journalmarinij.com Posted: 03/13/2012 05:06:50 PM PDT A state appeals court has ruled that the county of Marin improperly approved drugs to treat mental patients without first determining whether they were capable of making an informed choice not to take the medications. The case involves two Marin County women with chronic mental disorders, identified in court filings only as Krishna G. and Donna H. The county of Marin was appointed conservator for both women in 2010 and approved treating them with psychotropic drugs. Under state law, a person who is "gravely disabled" due to a mental disorder may be committed for involuntary evaluation and treatment. The initial commitment is for 72 hours, and conservatorship for renewable periods of one year may follow after a hearing. In 2011, Golden Gate University School of Law Professor Mort Cohen, a longtime advocate for the rights of the mentally ill, petitioned the Marin Superior Court on behalf of Krishna G. and Donna H. Cohen asserted that as conservator, the county was routinely approving the use of psychotropic drugs without conducting an evidentiary hearing on the patients' capacity to make their own decisions and without meaningful notice and an opportunity to be heard. Cohen said that in Krishna G.'s case, "her concern was they were giving her too much." In the meantime, the county of Marin revised the written notification given to patients prior to conservatorship proceedings, and the conservatorships of both Krishna G. and Donna -------------------------------------------------------------------------------- H. expired. Judge Lynn Duryee found Cohen's petition to be moot and dismissed it. Cohen appealed, and on Friday the 1st District Court of Appeal in San Francisco reversed that decision and sent the case back to Judge Duryee to conduct further proceedings and enforce action "consistent with the views" in its opinion. In its decision, the three-judge panel wrote that before conservatees are forced to take medications, a court must find that they lack "the mental capacity to rationally understand the nature of the medical problem, the proposed treatment, and the attendant risks." Cohen said the appeals court ruling is important for psychiatric patients who are temporary conservatees and waiting for a hearing to determine if they will be placed in a one-year conservatorship. A temporary conservatorship may last as long as six months in cases where the proposed conservatee requests a court hearing or jury trial. Patients held for between 72 hours and 14 days may refuse drug treatment, and those placed in a one-year conservatorship receive a hearing and are represented by legal counsel. But temporary conservatees can't refuse treatment and often aren't even present at the hearing that strips them of their rights, he said. "Counties have used this process for years to avoid honoring patients' rights for the mentally ill," Cohen said. "This decision should help put a stop to that." Cohen said only three California counties — San Francisco, San Diego and Solano — comply with the new requirements set out by the appeals court's decision. He said the decision mandates an evidentiary hearing before a mental patient is placed in a temporary conservatorship, if the patients requests such a hearing. But Marin County Deputy County Counsel Edward Kiernan disagreed. "The court explicitly did not decide that issue," Kiernan said. Kiernan said that while it is possible for a temporary conservatorship to last six months, "the reality is it is very rarely that long." He said they generally don't extend much beyond 30 days. Daniel Brzovic, an attorney with Disability Rights California, who filed an amicus brief in support of Cohen's legal action, said the appeals court didn't specify whether an evidentiary hearing would be required. But Brzovic said the Court of Appeal did say courts must use factors identified in a previous case, Riese v. St. Mary's Hospital & Medical Center, when deciding whether mental patients are capable of making their own treatment decisions. "One of those factors is that the individual has to be able to make a decision in a rational manner," Brzovic said, "and we don't think the court is going to be able to determine that unless they give the individual an opportunity for a hearing."

How can Advocates assist? Self-Advocate LPS Conservatorship Use the Pamphlet to assist client in determining their ability to show they are no longer Gravely Disabled. This may include list to other licensed facilities, Organizations or County Programs. These are usually provided by the facility Social Worker of the LPS Care Coordinator (Social Worker). Be aware that some California counties may not be able to provide information to NON-Licensed facility or resources. Check your county’s Policy & Procedures.

Community Resources What is available in your County? MHSA (Prop 63) Resources – TAY, Housing, Employment Outpatient Mental Health Clinics National Alliance for Mental Illness. Room & Boards Coalitions Residential Care & Housing Office See National Alliance on Mental Illness report on Current MHSA funded programs in the State of California.

Questions? Shall we play a game? James Marquez, IMFT, Advocate County of Orange Patients’ Rights Advocacy Services 405 West 5th Street, Suite 477 Santa Ana, CA 92701 Tel: 714-834-5647 or 800-668-4240 Fax: 714-834-5576

LPS References California Welfare and Institution Codes (W&I §) – http://www.leginfo.ca.gov/calaw.html California Association of Mental Health Patients’ Rights (CAMHPRA) – www.camhpra.org California Office of Patients’ Rights (COPR) – 1831 “K” Street, Sacramento, CA 95811 (916) 504-5800 http://www.disabilityrightsca.org/about/opr.htm

LPS References LISTSERV – pras@lists.disablityrightsca.org Disability Rights California (DRC) – www.disabilityrightsca.org Handbook/Posters – Rights for Individuals in Mental Health Facilities – http://www.dsh.ca.gov/Publications/Patients_Rights/default.asp Handbook for Challenging LPS Conservatorship, Publication #5110.01 see www.disablityrightsca.org NAMI – www.namicalifornia.org – MHSA County Programs 2012: Services Promoting Recovery & Reducing…(Report) The last link shows a Report for All California Counties that have a MHSA Programs and this report is available online.