California Expands the State’s Ability to Involuntarily Confine Persons in Psychiatric Facilities. Is it Constitutional?

On October 10, 2023, Governor Gavin Newsom signed a bill which significantly expands the state’s ability to involuntarily confine people within psychiatric facilities. Prior law was written to preserve the dignity and liberty of persons suffering from mental health challenges by allowing for involuntary psychiatric confinement only in very limited circumstances. The change in law makes it easier for the state to strip civil liberties and subject people to treatment and programing in psychiatric hospitals.

This diminution of civil rights was accomplished by Senate Bill 43 (2023), which modifies California’s Lanterman-Petris-Short Act, the same act that encompasses California’s famous involuntary confinement statutes, Welfare and Institutions Code Sections 5150 and 5250. Senate Bill 43 expands the definition of the term “gravely disabled” in context of Sections 5150 and 5250 (and other sections).

Previously, before a person could be involuntarily confined, two basic requirements had to be met: (1) a person had to suffer from “a mental health disorder;” and, (2) as a result, the person had to be unable to provide for “personal needs for food, clothing, or shelter.” Senate Bill 43 changed these standards in two ways. First, in addition to “a mental health disorder,” a “severe substance abuse disorder” was added as a triggering condition. Second, a person’s inability to provide “personal needs, food, clothing, or shelter,” was expanded to “personal needs for food, clothing, shelter, personal safety, or necessary medical care.” See, e.g., Welfare and Institutions Code Sections 5008 (h)(1)(A).

Senate Bill 43 provides that “severe substance abuse disorder” is to be determined based on criteria set forth in the current Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). But “severe substance abuse disorder” under the DSM-5 encompasses a wide range of substance use and functionality. For instance, a person who spends a lot of time in line at coffee shops because she craves caffeine in amounts larger than recommended, and develops a tolerance to caffeine, but wants to cut down on consumption, and suffers from withdrawals when she does not have caffeine, would have a DSM-5 severe substance abuse disorder.

As for the expansion of the second prong to include “personal safety” and “necessary medical care,” both of those terms are so nebulous – even with the feeble “definitions” set forth in the statute – that they virtually summon authoritarian overreach. Food, clothing, and shelter are easily definable. Whether a person can provide for their own “personal safety” is a widely broader determination. There are countless unknown dangers. People are unexpectedly killed and gravely injured all the time despite normal precautions. If a person is hit by a speeding car despite using reasonable precaution, have they failed to preserve their own personal safety? The new statutory language suggests that the answer is yes because the person would not have been hit by the car if they had been confined in a mental institution.

These expansions invite infringements on personal liberty and raise questions about constitutionality. The Fourteenth Amendment provides in part that no state shall deprive a person of life, liberty, or property without due process of law or any person the equal protection of the laws. Due process as interpreted by courts provides both procedural and substantive protections for those subject to involuntary commitment.

The United States Supreme Court has not expressly identified the proper level of scrutiny to be applied with regards to involuntary civil commitment even though the court has characterized it as a significant deprivation of liberty in the case of Addington v. Texas. It has been acknowledged that mental health commitment is a constitutionally valid form of liberty deprivation provided there is no object or purpose to punish and the individual poses a danger to society.

Senate Bill 43 provides a very effective framework for involuntary confinement to be used for political purposes or to curb otherwise legal but undesired speech. Californians must be careful to monitor the use of this new law to ensure it is not a tool for overreach.