Mental Health, Homelessness and Civil Rights: S.F.’s Crisis of Conscience

A state Senate bill on mental health conservatorship is dividing San Francisco.

The man was short, just over five feet tall, and scruffy. His brown hair stuck out wildly from his head. He wore a red T-shirt, torn jaggedly along the hem, his pants noticeably too big around the waist. He held them up with one hand as he shuffled down Valencia Street, barefoot. It was his feet that were the most remarkable — they were covered in oozing sores, some scabbed over, some fresh. He muttered as he moved, sticking out his hand to everyone who passed and talking incoherently. People stared at him, shocked, and quickly stepped out of his reach.

He was the first very ill person I ever saw on San Francisco streets. I’d just moved here, 23 years old and idealistic, freshly graduated from college. I saw him regularly for about two months, and each time the fact that he was still on the street shook me. How could a city lauded by the rest of the country for its progressive ways let someone suffer like that? I asked around to see if anyone knew a shelter I could call, but during my first few months in the city I never did find out what the best course of action was.

Then he disappeared one day, and I never saw him again.

San Francisco is long overdue for a conversation about the mental-health crises taking place on its streets. A 2017 manual count found 7,499 people experiencing homelessness citywide, with 4,353 of those living outside — and both numbers are considered underestimates. You’d be hard-pressed to find a city resident who hasn’t witnessed someone who appears unhoused having a tough time. Stories abound about the time someone saw a person strip naked in the middle of Market Street, or a bus rider who couldn’t stop loudly talking about surveillance teams watching him. Other expressions of mental illness are more quiet and hidden: someone suffering depression who can’t leave a doorway, or an individual who depends on drugs to keep symptoms of their schizophrenia at bay.

Despite the very apparent need for care, politicians have, for years, largely turned a blind eye to the issue. Funding for behavioral resources has gone down as homelessness has gone up. Mental health crises on city streets are usually handled by police, who are not skilled medical professionals. And as a recent City Hall hearing on behavioral health resources showed, there is a massive disconnect between departments. Data is inconsistent, approaches are varied, and local politicians are uninformed as to exactly what happens to a mentally ill person after they are taken into custody.

2019, however, may be the year when all of this changes. The decision over whether or not to locally institute a highly controversial state Senate Bill, SB 1045, is forcing supervisors and city departments to face the public-health disaster occuring right in front of them. The opposing sides aren’t falling along the city’s typical progressive/moderate split. Directors of nonprofit health organizations may be adamantly opposed to the bill, while their staff may support it. Social workers fall on both sides, and no one knows how an upcoming Board of Supervisors vote will go.`

It’s an odd way to reach this point — an extremely overdue examination of our mental health system — but in the long term, the conversations launched by this Senate bill might be what save us.

“In San Francisco, like in cities all across California, people are suffering and dying on our streets,” state Senator Scott Wiener said at a San Francisco press conference in February last year to announce his new bill. “Our counties need more ways to help these people, and that includes strengthening our conservatorship laws for the most extreme cases. What’s happening on our streets is inhumane, and we can no longer sit back and watch people die. We have to act.” 

“Conservatorship” isn’t a term that’s used colloquially; several people told me it brings to mind something vaguely related to environmental conservation. More often, it’s replacing the term “institutionalization,” to signify what happens when someone who’s mentally ill is locked up in a psychiatric ward. Under the state’s 1972 Landerman-Petris-Short Act (LPS), someone can be considered for a short-term or year-long conservatorship if they’re “gravely disabled” — a term which is open to the interpretation of doctors, the city attorney’s office, a public defender, and a judge — and if they experience chronic alcoholism.

Once conserved, more than 60 percent of people will be placed in a locked ward to receive intensive psychiatric care, which can include medication, therapy, and treatment for alcoholism. Once this happens, they lose access to their bank account, their freedom of movement, their choice of treatment, and often, their pets.

The LPS Act was initially created to counteract the One Flew Over the Cuckoo’s Nest-era practices of locking someone up involuntarily over perceived claims of insanity — which could be as unbelievable as a woman experiencing “hysteria” because her husband cheated on her, or loving someone of the same sex. LPS has undergone a few changes over the years; in 1987 a stipulation was added stating that you couldn’t force people to take anti-psychotic medicine they didn’t want to, unless a judge deemed it an “emergency.” But aside from that, it’s largely stayed the same — until now.

Under Wiener’s SB 1045, three counties — Los Angeles, San Diego, and San Francisco —  would be able to operate a pilot addition of new conservatorship qualifications: people who’d been transported to Psychiatric Emergency Services (otherwise known as “being 5150’d”) eight times in one year.

Then-Governor Jerry Brown signed SB 1045 in September 2018, but it has yet to pass a vote by the Board of Supervisors in order for San Francisco to implement it. Los Angeles and San Diego, it appears, each have no interest in moving forward, which means Wiener basically pushed forth legislation in Sacramento that specifically targets the homeless population on San Francisco’s streets.

Despite arguments that it was so watered down in Sacramento that only a small handful of folks (possibly as few as five) would qualify for this new category of conservatorship, it’s not moving forward without a fight. Susan Mizner, a lawyer and the founder of the ACLU’s Disability Rights Program, didn’t mince words when she spoke publicly about the bill last month.

“Conservatorship is a huge degradation of human rights,” she said. “Someone who is put under conservatorship loses their right to choose where they live, who they associate with, whether they get to keep their pet, what they do with their day, whether they see this therapist or that therapist. It is, from our perspective as the ACLU, the greatest deprivation of civil liberties aside from the death penalty.”

Locally, both Mayor London Breed and Supervisor Rafael Mandelman have championed SB 1045’s implementation. Mental-health conservatorship is an issue Mandelman has focused on for years. His interest is partly drawn from personal experience, as his mother had bipolar disorder, schizoaffective disorder, and borderline personality disorder. Conservatorship and mental-health treatment were issues he discussed on the campaign trail in 2018.

“Before Senator Wiener introduced SB 1045, I was out talking about how we needed to increase our use of conservatorships to get folks into care,” he tells SF Weekly. “So when he proposed that, it seemed to me initially to be sensible, and has continued to seem worth exploring.”

Mandelman introduced legislation last October at the Board of Supervisors that requires his colleagues to vote on the issue, something that should occur in the next few weeks. While he certainly doesn’t believe SB 1045 is going to fix the crisis — “it’s a small number of people, it’s a narrow tool, it’s not going to solve homelessness,” he says — he thinks the current system in San Francisco is not working.

“I have had the experience of calling the police thinking they were going to 5150 someone who seemed clearly to be out of his mind. He was taking his clothes off, running around the street, howling. I’m sure at some point he probably either got himself taken to jail or the hospital,” Mandelman says. “But in this particular case, the officer engaged him, calmed him down, and went away. Which is kind of great that the officer did that, but it also doesn’t solve the problem.”

That “problem” is multifold. San Francisco’s mental-health resources remain woefully underfunded. A city report showed a $40 million cut in behavioral health care between 2007 and 2012. At the same time, the homeless population has only increased. In 2007, 6,377 homeless people were counted citywide, with 2,771 on the street — approximately 40 percent fewer people than today.

That alone can be viewed as a chicken-and-egg situation. People who experience severe mental illness have a harder time holding down a job or housing, limiting their access to healthcare and social support systems and leading to homelessness. Conversely, living on the streets or in shelters can be damaging to one’s mental health, and with fewer resources available to help people transition into housing, people are spending longer and longer unhoused, their physical and mental health disintegrating over time until many become severely ill.

And that, commonly, is when many of them are forced into care. Police pick up people who are obviously ill and drop them off at Psychiatric Emergency Services, where they’re held for a few days, then released — hopefully with the phone number or address of a case manager who can help them.

Those who are kept longer become victims of a system broken by its lack of resources. In San Francisco, painfully few beds exist at every level of care. Psychiatric Emergency Services at S.F. General has 44 beds. Hummingbird Place, a Navigation Center serving those experiencing psychological issues, only has 29 beds, which a health official stated are “always full.” And there are few exits. A report from last year stated that one patient stayed at Hummingbird for 167 days.

Bizarrely, some of the heads of these woefully bereft departments don’t appear to have a clear idea of what to ask for.

Mark Leary, the director of Psychiatric Emergency Services, sidestepped Supervisor Catherine Stefani during a recent hearing, when she asked how many beds they need to add. “200? 400?” she queried, offering him a valuable chance to seize a budgetary request. He declined to answer.

Which brings us back to SB 1045. Mandelman admits it doesn’t do anything to fix the scarcity of beds citywide, and he is exploring other avenues to budget for better resources. But at the same time, he believes those people who are cycling in and out of our medical system multiple times in a year should be held for an extended period, to sober up, get on medication, and get back on their feet.

“I believe San Francisco should be taking every step we can using every tool in the toolbox to get the most challenging, most difficult, and most expensive folks off of … the merry-go-round that’s going around over and over and over again, and get those people into care,” he says. “I think it makes sense to focus on the most difficult people because they are the ones who are the most costly and who are taking up the most resources. And they are the most in need.”

Mandelman sums up the core of the argument neatly.

“How do you get care for someone who may not know or care that they need it?” he asks. “All of us have the same goal. But there are real disagreements about how coercive we should be with people who are not responding to non-coercive means.”

And that’s where the key sticking point is. Was that man I encountered with bleeding feet who was obviously experiencing some level of mental illness able to opt into care on his own? Or, is it more effective for San Francisco to place him in a locked ward for intensive treatment, even if he strongly protests?

This is the first legislative effort in years directed to addressing the mental health of our homeless population. But homeless nonprofits and disability-rights advocates are furious, and they’re campaigning hard to block SB 1045 from becoming a reality.

“How did we get to the system where the only way to get care is to be dropped in handcuffs to Psychiatric Emergency Services?” Jennifer Friedenbach, the executive director of the Coalition on Homelessness, stated at a panel discussion on SB 1045 in February. “For most people, that’s their very first experience with the mental-health system, which is not a great way to engage people in services.”

The Coalition on Homelessness is one of more than two dozen local groups that formed the Voluntary Services First Coalition in response to SB 1045. It’s a wide range that includes Senior and Disability Action, the Homeless Youth Alliance, the Mental Health Association of San Francisco, and the Democratic Socialists of America.

“SB 1045 has become a political strategy to address homeless people with mental-health disabilities,” part of their mission statement reads. “This strategy relies on the false narrative that people choose not to get services, when in reality services are not available. Before we take away civil liberties — in a city that prides itself on being a pioneer on civil rights — San Francisco needs to provide housing and voluntary mental health and substance-abuse services.”

Opponents of SB 1045 have been highly organized in the past few months. Senior and Disability Action led a number of four-hour-long workshops explaining the ins and outs of conservatorship. Panel discussions have featured people who have experienced severe mental illness, and at every political press conference on conservatorships in the past year, volunteers have stood to the sidelines, waiting until it’s over to hand out large packets of information to the press and provide interviews.

Some big voices have come out against the bill. Mizner, the ACLU’s disability counsel, strongly believes services shouldn’t be forced.

“There have been lots of folks who study whether coercive approaches to treatment work,” she says. “The answer is no. Going out on the street, meeting people where they are, offering them what they need in the moment they need it, and maintaining that relationship over time. … That’s what brings people off the street into housing — if you’ve got it.”

Vitka Eisen, president and CEO of HealthRight 360 — which opened a brand-new, $53-million health center for homeless and low-income families in 2017 — told SF Weekly last October that she has “pretty deep concerns” about the bill.

“I want to believe that the people that are putting this legislation forward want to approach this condition with compassion,” she says. “But what else can we do before we step over and coerce people into substance-use treatment?”

Friedenbach agrees. This legislation, she argues, is lazy.

“Can’t we do better?” she asks. “Is this really what our policymakers are bringing forward as a solution? Really?”

For better or worse, the policymakers putting the legislation forward wield influence over the public’s perception of SB 1045, and they themselves may be one of the biggest barriers in its implementation. Wiener supported Proposition Q’s ban on tents on sidewalks in 2016, when he was a supervisor. Breed has been influential in enforcement of that proposition, with sweeps of homeless tents and encampments skyrocketing since she took office. Neither of them supported 2018’s Proposition C, the half-percent annual tax on the wealthiest corporations in San Francisco that would fund homelessness services. And Mandelman said during a meeting this year that he “does everything he can” to make sure tents in his district are taken down. Historically, this is not a trio that is viewed as having embraced patient and compassionate approaches to people living on our streets.

“Who supports 1045? Typically, when stuff like this comes down you’ve got a trail of folks who join the cheering squad,” Friedenbach states. “The Chamber of Commerce, the Hotel Council — these are folks that were not interested in the efforts to expand mental-health treatment by $75 million a year by taxing the richest corporations in San Francisco, but are ready to say, ‘Yeah, let’s make it easier to take away mentally ill people’s civil liberties as a human being.’

“It’s exactly the same cast of characters,” she adds. “So when you see them line up behind something, it’s always a red flag.”

All of the above make SB 1045 feel like a fairly traditional progressive-moderate issue, but dig a little deeper and the line gets murkier. Several homeless-focused therapists SF Weekly talked to off the record favored an expansion of conservatorship laws, saying that it was agonizing to try to get severely ill people conserved, and not being able to.

Rachel Rodriguez, a psychiatric social worker at St. Francis Memorial Hospital, is a strong supporter of SB 1045. She handles treatment and discharge planning with patients and their families, but she also manages the hospital’s conservatorship court hearings, and has done so since 2011.

“Instead of the psychiatrists representing the clinical picture to the judge, to try to hold someone involuntarily, that becomes my job,” she explains.

Much of that job lies in determining why someone needs to be conserved. From the get-go, Rodriguez says, “We’re gathering a history. Mostly we’re obtaining collateral from the community. That can be from their outpatient doctors, case managers, family, friends, neighbors, to hear how bad things have been out there for them. Does this person have the capacity to provide for their food, clothing, and shelter in the community, or are they willing to accept valid reality-based, third-party support?

“It’s when those aspects can’t be met — when someone continues to say they’re fine, they can handle it, or they’re delusional, saying, ‘I own this hospital, I am the doctor’ that leads us to believe that person is not able to enact a plan for food, shelter, and clothing,” she adds.

There is one population that Rodriguez encounters regularly, however, that she’s not always able to help: people who use drugs, particularly methamphetamine.

“A lot of people doing social work will tell you that SB 1045 is not the ‘housing conservatorship’ bill, it’s the ‘meth conservatorship’ bill,” she says.

Psychiatrists in San Francisco regularly come across people who are admitted to emergency-care facilities for experiencing what the medical industry calls “meth-induced psychosis.” The National Institutes of Health estimates that these psychotic symptoms can affect up to 40 percent of meth users, and can create or exacerbate symptoms of schizophrenia, anxiety, or suicidal thoughts. The often very-noticeable side effects of this drug mean that people who use meth are often targeted by police for 5150s, ending up at San Francisco General Hospital’s Psychiatric Emergency Services. But there’s a problem in maintaining that care — which some experts argue needs to be long-term, due to the cumulative damage the drug has on the brain.

“Often, people on substances will clear after a few days, and when that happens they’re often not legally holdable,” Rodriguez says. “They might end up leaving the hospital and cycling back. They went out on the streets, their condition worsened, they became gravely disabled for admission again. But could we actually conserve that person? No, because we don’t allow conservatorship for anything other than serious mental illness and alcoholism.”

Rodriguez says that’s one of the more heartbreaking parts of her job.

“We have people come into St. Francis who have been discharged 36 times from Psychiatric Emergency Services in one year, and who are seen walking around barefoot. Nobody wants to be doing that. Nobody who goes into psychiatry wants to be doing that. If we had the legal changes and shifts then we would be able to treat accordingly. Not to have a way to stop that, for our community, our neighbors, our homeless, our family members, our friends, has been sickening and sad.”

Rodriguez in no way believes SB 1045 is the only answer S.F. needs — the lack of beds at every level of care is a massive issue. There is a waitlist for step-down services. Supportive housing — a residential system that includes services along with a place to live — is a rare commodity in San Francisco. And that is where she and the Voluntary Services First Coalition overlap — in the belief that there needs to be more money thrown at mental health services citywide.

“SB 1045 as a solution is an excellent one, as would be Prop. C,” she says. “These could work in tandem. If we had Prop. C now, it includes a component that would ameliorate a lot of these conditions on the streets that would help folks who fall into the SB 1045 category, too.”

On the other side of town from St. Francis Memorial Hospital is Kara Chien’s office. She’s the chief attorney of the Public Defender’s Mental Health Unit, and on any day of the week she and her staff are very busy. The unit has two investigators and three attorneys (including Chien), who handle around 1,000 probable-cause hearings and 350 cases for conservatorship each year. Some of these are duplicates — people who may cycle through the system several times, or who need renewals. But every day, these public defenders fight on behalf of their clients, requesting voluntary services, rehabilitation centers, or assisted outpatient therapy — pretty much anything but locking them up and taking away their civil rights.

“There are various stages and safeguards to make sure the person is not held indefinitely,” Chien tells SF Weekly. “We help provide the checks and balances.”

California has a unique judicial system when it comes to mental-health conservatorships. Despite the number of people who are petitioned for long term institutionalized care, Chien believes our attention to civil rights makes it harder to get people conserved than in other states.

Our laws reflect that — for better or for worse. Chien’s job is to enforce them as written.

“The law is very focused on patients’ rights, and it’s focused on a present grave disability,” she explains. “The way the law is written, you have to be presently gravely disabled. If two weeks ago I was hospitalized on a 5150 for treatment, and then two weeks later I take meds and I’m stable, a judge shouldn’t conserve me.

“If I’ve been to the hospital 60 times in one year, my credibility will have less weight to convince the court,” she adds. “But the way the law is written, I have to meet the criteria.”

Chien, through the nature of her job, is wary about expanding conservatorship laws to include more people — her focus is always on creating and then maintaining a patient’s liberty to self-rule.

“Forcing a treatment on someone may only be effective during that period,” she says. “You cannot lock someone up forever. The best way to help someone with mental-health challenges when they’re not able to make decisions is just to get them to a place where they can start making those decisions for themselves. That autonomy needs to be given back to them.”

But again, the system that currently exists doesn’t provide many options for that to happen. Chien began her work as a public defender nearly 20 years ago, and San Francisco was different back then.

“First of all, we need to resolve the housing crisis,” she says. “It’s not just a mental-health crisis. When I started as a public defender, there were so many board and care homes for my clients. I’d go visit them. They had a case manager, a roof over their heads. Now we have only half a dozen left? We need supportive housing, and competent case management.”

But Chien’s outlook is also one of deep compassion for her clients.

“I don’t think that people with mental illness should be punished. It’s like you’re not longer a citizen when you’re mentally ill,” she adds. “We’re not letting the individual to live with dignity just because they have a mental illness.”

In all, the conversations swirling in courtrooms, psychiatric emergency wards, community hearings, and at City Hall around expanding San Francisco’s conservatorship laws go far beyond the legal ramifications of the bill itself.

The evidence for this lies in how few people it’s expected to serve. SB 1045’s watering down in Sacramento means the people it was originally anticipated to serve citywide dropped from around 100 people to a tiny handful.

“The number of folks who have been 5150’d eight times in the last year and have already had a petition filed for assisted outpatient treatment is certainly fewer than 10,” Mandelman says. “It might be fewer than five. We think there’s at least one.”

Mandelman believes that even if there is only one person, it’s still worth pursuing.

But if SB 1045 passes locally, potential additions are marching over the horizon: Wiener just introduced SB 40, which would clean up some of the losses he faced in Sacramento with the original bill, by expanding conservatorship to anyone who’s been 5150’d eight times ever — not just in one year — and allow a judge to skip the assisted outpatient treatment that is currently mandatory. If SB 1045 passes locally, it’s fairly likely SB 40 would, too — and the number of people who could be affected would skyrocket from Mandelman’s “at least one” to dozens.

Regardless of how you feel about SB 1045, it’s impossible to ignore the fire it’s ignited around mental health for San Francisco’s unhoused population.

Since Mandelman introduced it locally back in October, a lot has happened, and more is scheduled to happen. Earlier this month, a Board of Supervisors committee hosted an hours-long hearing on the city’s response to behavioral health crises and 5150s. Mandelman has requested a report from the city’s Budget and Legislative Analyst on the city’s current conservatorship numbers, and what barriers exist in getting people conserved. The mayor announced she’s creating a new city position: a director of mental health reform. A meth task force will launch in April and meet for six months before making policy recommendations. And Mandelman has called for a hearing on access to mental health and behavioral health services for people who go into the city’s jail.

Amid all that are battles over the city’s budget, which should be finalized by June and will — if Breed is smart — include a hefty sum for more psychiatric beds. And at some point in the next couple weeks, the Board of Supervisors will have to vote on SB 1045, and decide whether or not it’s an ethical, compassionate, and intelligent decision to widen the scope around who can be locked up, ostensibly for their own good.

No one knows quite how the vote will go. And however you feel about conservatorship, it’s clear that we owe SB 1045 a little thank you, for bringing solution-oriented discussions over a serious crisis on our streets to the front pages of newspapers, to evening community meetings, to the desks of our politicians.

There is one thing everyone can all agree on: the only way forward is to fix our broken system.

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