Matthew R. Silver is the founding partner of Civica Law Group APC, and can be reached at msilver@civicalaw.com, Lauren E. Brown is an associate attorney at Civica Law Group APC, and can be reached at lbrown@civicalaw.com. Natalie Sahagun is a law clerk at Civica Law Group APC, and can be reached at nsahagun@civicalaw.com.

Like many other states, California is facing a mental health and substance use crisis. Gaps in systems of care have become more evident, which lawmakers hope to close with the Community Assistance, Recovery and Empowerment (CARE) Act. This new law aims to provide thousands of Californians suffering from untreated mental health and substance use disorders the support, treatment, and care they need. Every county must implement this new law by the end of 2024.  

While behavioral health problems and substance use disorders impact all types of people, those experiencing homelessness are especially affected. California has 12% of the nation’s population, but is home to nearly a third of its homeless population. One in four of those people has a serious mental health illness.

The CARE Act takes a novel, yet somewhat controversial, approach to mental health care by bringing it into the courtroom to ensure treatment when it might not otherwise be possible. Whereas prior laws focused on imprisonment or involuntary commitment, the CARE Act focuses on incentives and legal coercion to provide long-term treatment. It is intended as a major step forward in California’s approach to mental health care, which has not proven sufficiently effective in solving the issues the state faces today.

A paradigm shift from the historical approach

The road to CARE Court starts with the 1967 Lanterman-Petris-Short (LPS) Act, which regulates involuntary civil commitment to mental health institutions in California. It set the precedent for modern mental health commitment procedures in the U.S. by seeking to balance public safety with individual civil rights.

In effect, the LPS Act ended most hospital commitments by the judiciary, except in the cases of criminal sentencing and people who were “gravely disabled” — those who posed a risk of harm to themselves or others and could not provide for their most basic needs, such as obtaining food or finding shelter. It also created criteria for certain involuntary holds, namely temporary holds for those who are gravely disabled or pose an imminent danger to themselves or others.

After implementation, mental health advocates criticized the LPS Act for lacking effective rehabilitative treatment and placing too high of a standard even for temporary commitment, leaving many people without help.

As such, lawmakers enacted Laura’s Law in 2002, which encouraged counties to offer certain outpatient mental health programs geared at creating lasting impacts. Similarly, Laura’s Law was found to be ineffective: County participation was optional, and the eligibility qualifications were so narrow that it resulted in less than one thousand people eligible to participate statewide.

Many family members, mental health advocates, and even civil rights advocates believed that these laws over-weighted an individual’s civil liberties to the detriment of effective treatment and public safety. The CARE Act attempts to balance this scale: County participation will be mandatory, an individual’s civil rights will be subject to judicial review and appointed legal counsel, and a judge can order treatment based on a petition by certain individuals. In this sense, the CARE Act seeks to balance mental health treatment with individual civil liberties.

In the year since being signed into law, the CARE Act has survived legal challenges from various civil rights groups and was upheld by the California Supreme Court.

Eligibility, petition process, and local involvement

CARE Court is designed to expedite intervention to prevent avoidable psychiatric hospitalizations, incarcerations, and mental health conservatorships. It will focus on people with severe mental illness, schizophrenia, and other psychotic disorders by providing them with either a voluntary CARE agreement or a court-ordered CARE plan. Both plans will include behavioral services, housing resources, and other social services.

Police, homeless outreach workers, and family members can submit a CARE Court petition to begin the CARE process. The petition must contain evidence that the person has suffered at least two involuntary 14-day holds within 60 days of filing the petition or an affidavit of a licensed behavioral health professional attesting that the person meets CARE Court criteria based on an examination or multiple attempts to examine within 60 days.

Eligibility hinges on whether the person:

• Is 18 years or older.
• Has been diagnosed with schizophrenia or other limited psychotic disorders.
• Has severe and persistent symptoms.
• Is not stabilized with ongoing voluntary treatment.
• Will likely benefit from participation.
• Is unable to survive safely without supervision and their condition continues to deteriorate, or services are needed to prevent relapse or deterioration.

If a judge determines that CARE Court would be the least burdensome means to ensure recovery, and all other eligibility criteria are met, the judge can order a CARE agreement, require mental health professionals to conduct outreach, or even order a treatment plan.

Plans can be between 12-24 months and will provide a person with a volunteer supporter and an attorney to help make self-directed care decisions. If an individual does not participate in a court-ordered CARE plan, they may be subject to additional court hearings. If they cannot successfully complete a CARE plan, a judge could then refer them to conservatorship. 

A conservatorship — usually considered a last resort — would force the individual to comply with a treatment plan. The goal of CARE Court is voluntary mental health treatment, as research shows that when treatment is voluntary, it is more likely to succeed.

CARE Act expansions

In an effort to expand the CARE Act’s effectiveness, Gov. Gavin Newsom signed two follow-up bills into law in 2023.

SB 35 (Umberg) expands on the CARE Act and makes several changes intended to improve its implementation. Among other things, it gives CARE Court petitioners the right to be present and make statements at the initial court hearing and allows a judge to give petitioners additional rights as the case progresses. It also entitles the subject of a petition to request the court seal their records, requires a hearing within 14 court days to determine CARE Court eligibility for misdemeanor defendants who are found incompetent to stand trial or mandates their release, and waives court-related fees to file and serve the petition initiating CARE Court proceedings.

SB 43 (Eggman) expands the definition of “gravely disabled” for purposes of making a determination regarding involuntary commitment or appointing a conservator, including when a participant in the CARE Court process does not voluntarily complete their care plan. The definition now includes people unable to provide for their personal safety or necessary medical care due to a severe substance use disorder, chronic alcoholism, or a co-occurring mental health disorder and a severe substance use disorder.

These new laws are intended to expand CARE Court to more participants and hopefully improve the results of the program.

An uncertain future

Whether CARE Court can close the gaps in California’s ability to solve its mental health and homelessness crises is unknown. It will require full implementation and time to determine how effective CARE Court really is, and whether further legal changes are needed, such as further expanding requirements for eligibility or mandatory treatment. CARE Court is being rolled out in waves: Seven counties have implemented it, including Glenn, Orange, Riverside, San Diego, San Francisco, Stanislaus, and Tuolumne. The remaining counties will begin implementation in 2024.

Implementation is mandatory; every California county will participate in CARE Court. If local governments do not meet their specified duties under court-ordered CARE Plans, a court can order sanctions and, in extreme cases, appoint an agent to ensure services are provided. In the end, the success of this new program and helping solve our state’s challenges will require commitment from a variety of agencies.