In California, the involuntary commitment of individuals in mental health facilities is governed by the Lanterman–Petris–Short (LPS) Act, enacted in 1972. This page describes the LPS involuntary treatment process (starting with the 72 Hour Hold), as well as the rights of persons evaluated and hospitalized under this law.
Rights of Individuals in California Mental Health Facilities – This excellent handbook by the California Department of Health Care Services summarizes the state’s involuntary mental health treatment laws, and people’s rights under those laws.
Involuntary Treatment Law Flowchart – See this flowchart for a visual overview of the involuntary treatment process. Details are explained below.
72-Hour Mental Health Involuntary Hold
Under California law, only designated professional personnel can place a person in 72-hour hold (also called a “515O”, as it is authorized under Section 5150 of the Welfare and Institutions Code). These professionals can be police officers, licensed members of a crisis team, or other mental health professionals authorized by their county.
One of three conditions must be present for an individual to be placed on a 72-hour hold. The designated personnel believe there is probable cause that because of a mental disorder the person is:
- A danger to himself or herself;
- A danger to others; or
- Gravely disabled (unable to provide for his or her basic personal needs for food, clothing or shelter).
The person placed in a 72-hour hold must be advised of his/her rights. The authority or facility must complete paperwork stating the circumstances under which the person’s condition was called to the attention of the officer or professional; what probable cause there is to believe the person is a danger to others, a danger to himself or herself, or gravely disabled (due to a mental disorder); and the facts upon which this probable cause is based. Mere conclusions without supporting facts are not sufficient.
What happens during an involuntary 72 hour hold?
When an individual is detained for up to 72 hours, the emergency facility or hospital is required to do an evaluation of that person, taking into account his/her medical, psychological, educational, social, financial and legal situation. The hospital does not have to hold the patient for the complete 72 hours if the professional person in charge believes that the patient no longer requires evaluation or treatment.
By the end of the 72 hours, one of the following things must happen:
- The person may be released;
- The person may sign in as a voluntary patient;
- The person may be put on a 14-day “5250” involuntary hold (a “certification for intensive treatment”). For this extended hold, a court hearing will be automatically held to determine whether there is probable cause
14-Day Mental Health Involuntary Hold and Certification Hearing
If a person is detained for 72 hours under the provisions of Section 5150 of the Welfare and Institutions Code and has received an evaluation, he or she may be certified for not more than 14 days of extended intensive treatment related to a mental disorder under the following conditions:
- The professional staff of the facility that provides evaluation services has analyzed the person’s condition and has found that the person is a danger to himself/herself or others or is gravely disabled.
- The person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis days of the end of your 72-hour hold.
Within four days after the patient is placed on a 14-day involuntary hold (5250), there must be a certification review hearing (a “probable-cause hearing”). The hospital must present evidence as to why the patient needs further treatment. The patient, assisted by a patients’ rights advocate, can explain why he/she believes there is no need for further hospital stay. A hearing officer, court-appointed commissioner or referee will decide whether or not there is probable cause to keep the patient in the hospital against his/her will for a period not to exceed 14 days.
If the hearing officer decides there is not probable cause to hold the patient, the patient may request to remain in the hospital on a voluntary basis. If the hearing officer decides there is probable cause and the patient disagrees with the decision, he/she has the right to request a Writ of Habeas Corpus and have a hearing in the Superior Court of the county where the patient is being held.
For patients: What are my rights to contest a 14-Day Mental Health Involuntary Hold?
You may be represented at the Certification Hearing by a patients’ rights advocate or another person of your choice. You can also request to have family members or someone of your choice at the hearing to help explain your circumstances (Welfare and Institutions Code Section 5250). If you want your advocate or a facility staff member to telephone someone for you, make this request before the hearing.
If you are held beyond 72 hours, you have the right to remain in the hospital for voluntary treatment. If you do not wish to stay voluntarily, you will automatically be scheduled for a certification review hearing, which will occur at the facility where you are staying. By law, the Certification Review hearing shall be held within four days of the start of the extended hold. As soon as is practical, a Patients’ Rights Advocate meets with you to discuss the commitment process and assists you in preparing for the hearing. This advocate meeting normally takes place a day prior to the hearing and then again just before the hearing.
Re-certification for Intensive Treatment or “5260”
If during the 14-day certification period, a patient has attempted or threatened to take their own life and remains in imminent threat of taking their life, a doctor may request an additional 14-day hold, which is known as a re-certification.
For patients: What are my rights to contest a Re-certification?
You have the right to request a writ of habeas corpus. Contact your patients’ rights advocate or attorney for assistance. Please note that no hearing will take place for this hold (Welfare and Institutions Code Section 5260).
Riese Hearing (“Medication Capacity Hearing”)
A person on any LPS involuntary hold may refuse psychiatric medications, but then the treating doctor may petition the court for a Riese hearing, also known as a Medication Capacity Hearing. During a Riese hearing (usually held at the hospital), a hearing officer will decide whether the patient has substantial mental capacity to make medication decisions.
For patients: What are my rights regarding a Riese Hearing?
You have the right to a written copy of a notice that the petition requesting a Riese hearing has been filed with the Court. You must also be informed of your right to an attorney or advocate at the hearing. You may appeal a Reise hearing decision (decided against you) to the county Superior Court.
Rights of Involuntary Patients
Does the person being held involuntarily have any rights?
Yes. A mental health patient being held involuntarily must be informed of the following rights in a language or manner he/she can understand. He/she is allowed:
- To keep and use his/her own personal possessions including toilet articles and clothing;
- To keep and be allowed to spend a reasonable sum of his/her own money (a conservator shall be appointed as required);
- To have access to individual storage space for private use;
- To see visitors each day;
- To have reasonable access to telephones;
- To have ready access to letter writing materials, including stamps & mail;
- To receive unopened mail;
- To refuse convulsive treatment;
- To refuse psychosurgery;
- To see a patients’ rights advocate;
- To be assisted by an attorney at the certification review hearing.
In addition, the patient has the right to be informed fully of the risks and benefits of the proposed treatment and give his/her informed consent. A patient has the right to refuse medication unless a capacity (Reise) hearing is held and a hearing officer or judge finds that the person does not have the capacity to consent to or refuse treatment. The patient may appeal this decision to the county Superior Court. A patient may also be forced to take medication without their consent if they are on LPS conservatorship, or there is an emergency where it is immediately necessary to give medication without prior consent for the preservation of life or the prevention of serious bodily harm.
For patients: What can I do if I feel my rights are being violated?
The person in charge of the facility in which you are receiving treatment is responsible for ensuring that all your rights are protected. You should be informed of your rights in a language and a manner that you can understand:
- On admission to a facility
- When there is a change in your legal status
- When you are transferred to another unit or facility
- At least once a year
If you believe that your rights may have been denied or violated, you can request to contact your patients’ rights advocate. If you have an attorney, you can request to contact them.
The Santa Clara County Mental Health Department contracts with Mental Health Advocacy Project (MHAP) to perform these functions. The County Patients’ Rights Advocate also monitors Santa Clara County inpatient facilities for compliance with LPS commitment process. For assistance, contact:
Mental Health Advocacy Project, Law Foundation of Silicon Valley
152 North Third Street, 3rd Floor,
San Jose, CA 95112
Telephone: 1 (408) 294-9730
If you are unable to reach your patients’ rights advocate, you may contact:
California Office of Patients’ Rights
100 Howe Avenue, Suite 210N,
Sacramento, California 95825
Telephone: 1 (916) 575-1610
– or –
Department of Health Care Services
Mental Health Services Division Ombudsman
Telephone: 1 (800) 896-4042
For Families and Friends of Patients:
What is a Conservatorship, who initiates one, and how can I request one for my ill family member?
When an adult (over age 18) has a history of serious mental illness and cannot care for themselves, they may be considered “gravely disabled” (unable to care for their basic needs due to a mental disorder and/or impairment due to chronic alcoholism). LPS (mental health) Conservatorship can be requested for someone who is gravely disabled by professional personnel or by family members. Once authorized by a court, an LPS Conservatorship makes one adult (called the conservator) responsible for a mentally ill adult (called the conservatee). A conservator may be a public agency representative (in Santa Clara County, this is through the Office of the Public Guardian) or a conservator may be a private person, such as a family member.
If your loved one over age 18 is hospitalized, and you strongly believe they need but will not voluntarily comply with long term mental health treatment, you can ask that the psychiatrist start the Conservatorship process. If they deem it necessary, the hospital treatment team may decide to request a Conservatorship on their own, without input from the family. Normally, the patient will be placed on a temporary conservatorship (T-Com) for up to 30 days while the court is deciding the case. More permanent LPS conservatorships last for a period of 1 year, after which the court must evaluate whether the person still qualifies for conservatorship. For more details on the Conservatorship process, read the following section (“For Patients”). For more information on requesting mental health Conservatorships, visit the Santa Clara County Superior Court’s page on LPS Conservatorships.
- What is a Conservatorship? (brochure)
- Instructions for Completing the Medical Declaration (used to initiate the Conservatorship process)
What is a Conservatorship, and how does it affect me?
LPS Conservatorship is a process in which the court appoints a person to make certain legal decisions for you. This person is called a conservator. Your conservator can make decisions like whether you can start or stop taking psychiatric medications, accept other medical treatment, manage your money and decide where to live. When you are on conservatorship, the court may limit your right to vote, to enter into contracts, to drive or to own a firearm. The LPS conservatorship can last for a maximum of one year at a time, and can be renewed in court at the end of the year.
When would I be put on conservatorship?
You can be put on a conservatorship if the court believes that you are “gravely disabled” which means having a mental disorder that keeps you from being able to provide food, clothing and shelter for yourself.
How does conservatorship get started?
Conservatorship is usually set up while you are in a hospital receiving psychiatric treatment. If your doctor or person responsible for your care believes that you need to be put on conservatorship because you have a mental disorder that keeps you from being able to provide food, clothing and shelter for yourself, he or she may make a recommendation to the County agency that does conservatorship investigations. It is up to the investigator to decide whether or not to request the court to start a conservatorship. Not everybody that meets the definition of “gravely disabled” is automatically put on conservatorship. You must be given a copy of the petition if one is filed, and told the time of the conservatorship hearing in court.
Here are some things you can do to avoid being put on conservatorship:
It is important that you have a place to stay, and a way of getting food and clothes to stay off conservatorship. You don’t have to own your own home or have your own apartment to prove you have a place to live. Even if another person, such as a friend or relative, is willing to give you a place to stay, this can help you contest the conservatorship. If you have a good doctor or therapist in the community, it may be helpful to get them to testify for you on your behalf. Discuss with your lawyer the possibility of having the court appoint an independent psychiatrist separate from the hospital to evaluate you and to give another opinion as to whether you really need conservatorship.
What are my rights to challenge being put on conservatorship?
You have the right to:
1) Free legal representation
The court will appoint an attorney to represent you free of charge if you cannot afford to hire your own lawyer. You and your lawyer also have the right to “subpoena” witnesses, which means requiring people who might have something helpful to say to come to court and testify for you.
2) Jury trial
Most conservatorships begin with a hearing before a judge. However, if you want your case to be decided by a jury, you have that right. The law even gives you the right to have a hearing, and if you lose, then a jury trial. This jury trial is not automatic. You must request the jury trial within five days after the hearing. Discuss this with your lawyer.
3) Proof beyond reasonable doubt
This is the highest standard of proof the law has. It is the same standard of proof applied in criminal cases.
How should I prepare myself for court?
Dress as neatly as possible. Even if you disagree and feel angry about what might be said about you in court, it is important to remain calm. Be ready to explain in court how you will be able to take care of your basic needs, including having food, clothes and a place to live. If you know someone who will testify on your behalf, especially by helping you with food, clothing and a place to stay, try to make sure they will show up in court for your hearing.
Your conservator can be a friend or a family member. You may nominate who you would like to be your conservator, although the judge decides who to pick. If the court finds no other person or agency able to serve as your conservator, the court will appoint your county public guardian as your conservator.
What is temporary conservatorship?
If the person in charge of the facility where you are staying believes that you may benefit from the services of a conservator because you remain gravely disabled, you may be placed on a temporary conservatorship (T-con) for up to 30 days. At the end of 30 days, a hearing will be held to determine whether you remain gravely disabled and whether a one-year conservatorship will be necessary. Your advocate or attorney can assist you with the conservatorship hearing process (Welfare and Institutions Code Section 5352.1).
If I am put on a conservatorship, do I lose all my rights?
No. The law specifically states that if you are in the hospital under conservatorship, you have the same rights as other people to wear your own clothes, to make confidential phone calls, to receive unopened correspondence, to have visitors daily, to have individual storage space, to keep reasonable amounts of your own money for canteen expenses, and other rights. Your conservator does not have the power to restrict or limit these rights in any way. You also have the right to be involved in your treatment plan, and in placement decisions. If you feel you have been forced to live in a place that is too restrictive for your needs, or in the conservator has been given too much power over your life, you can ask for a special hearing in court to review these things.
How do I get off conservatorship?
Even if you lose your conservatorship hearing or trial, there are things you can do. First, you may apply for a “rehearing” to try to show the judge that you are no longer “gravely disabled.” However, once you have had one rehearing, you may not request another one for another six months
2) Writ of habeas corpus:
The United States Constitution allows anyone who believes they are being held illegally by the government (including by a conservator) to file a “writ of habeas corpus” to challenge the confinement. There is also a special law in California that allows any state hospital patient to file a writ. Ask your lawyer or advocate for assistance.
3) Challenge reestablishment:
If you have been on conservatorship for a whole year, the county must decide whether to drop the conservatorship, or as the court to “reestablish” it. If the county decides to reestablish your conservatorship, you may challenge it and ask for a trial again before a judge or a jury.
If you have any questions, contact your county Patients’ Rights Advocate.
Involuntary Treatment Law Flowchart
See this flowchart for a visual overview of the involuntary treatment process.
Commonly Used Terms
- Danger to Others – Words or actions which indicate a serious intent to cause bodily harm to another person, and which are due to a mental disorder.
- Danger to Self – Words or actions which indicate the intent to commit suicide or inflict serious bodily harm to oneself, or actions which place the person in serious physical danger, which are due to a mental disorder.
- Gravely Disabled – An adult who, as a result of a mental disorder (rather than a chosen lifestyle or lack of funds) is unable to provide for his or her basic needs for food. clothing or shelter.
- Advocate – The person mandated by the state law to ensure that mental health patients maintain their statutory and constitutional rights.