HOW CALIFORNIA LAW KILLED LINNEA LOMAX
by Mary Ann Bernard *
To some people, “LPS” stands for the initials of the legislators who drafted it , back in the 1960’s. To many of us with mentally ill loved ones, it stands for “Let’em go, Push ‘em out, Stop ‘em from coming back.
Here’s the story of LPS in a nutshell. In the 1960’s, state mental hospitals were terrible places that sucked people in and never let them out again, and treatment for mental illness was so primitive it amounted to torture: the few medications worked poorly with horrible side effects, and electroshock therapy was delivered without anesthesia. So California decided to shut down its mental hospitals and send people into community programs that the federal government was going to fund, but didn’t. To this end, the legislature passed LPS, which made it hard to hospitalize people, harder to keep them hospitalized, and harder still to treat them even if they were so dangerous that they got through all the barriers to hospitalization.
LPS accomplished its intended purpose. California’state hospitals emptied out and closed, except for those largely devoted to the criminally insane. The seriously mentally ill (“SMI’s”) who were formerly institutionalized ended up on the streets, or in jail, or dead except when LPS allowed society to intervene on their behalf. Which isn’t very often.
Fast forward half a century. Ordinary hospitals now handle emergency treatment for SMI’s. But because they are forced to absorb much of the expense for treating the uninsured, the current problem isn’t that SMI’s are hospitalized for too long. It’ that they are kicked back out onto the streets before they are stable, often without being treated at all.
Yet treatment for mental illness has improved exponentially, and continues to do so. Modern drugs have far fewer side effects and actually help people feel and function better, instead of simply sedating them. My SMI son is now stable, happy and living independently on a monthly shot of a drug that didn’t exist three years ago. Science is also unlocking the genetic secrets of many serious mental illnesses, which will further improve treatments and may even allow for cures.
At the same time, serious mental illness has become more dangerous. Now that they are no longer institutionalized. 50% of SMI’s self-medicate with alcohol or street drugs, which doubles or trebles their chances of serious violence. %. Even marijuana and the stimulants that college students routinely pop when studying can cause psychosis and mania respectively, in persons predisposed to those conditions.  This means there is a good chance that psychotic Seung-Hui Cho at Virginia Tech and Batman-obsessed James E. Holmes in Colorado, who collectively murdered or injured over a hundred people, were self-medicating with street drugs when they planned and executed their killing sprees. In theory, people who have been mental patients can’t get guns, much less 100 round ammo clips like the ones PhD student James E. Holmes found on the internet. (Because Holmes grew up in California, the public cannot find out whether he was ever a mental patient, see W.I.C. 5328.) But Seung-Hui Cho easily obtained assault weapons, despite such a hospitalization.
So untreated SMI’s now live in a brave new world, where they have greater potential both for normal lives and for serious violence. But California is still stuck with a commitment statute that was deliberately made dysfunctional when it was passed, and is now fifty years out of date. Yet LPS is a “sacred cow” because it was revolutionary and trendsetting back in the day. So was the Model T, but that doesn’t mean we all should be driving one.
What does this have to do with Linnea Lomax? Potentially, a great deal. The public facts about her are contradictory. But assuming she was as sick as some versions indicate, LPS likely had a direct hand in her disappearance and death.
I assume her parents and friends are telling the truth. They say she lost 20 of her 115 pounds and had a “mental breakdown” just before finals during her first year of college, when they found her “in a terrible, terrible state,” literally “pulling out her hair,” dehydrated, clutching a bottle of ibuprofen and exploring a website about suicide. She “wasn’t being reasonable,” but they somehow persuaded her to enter a psychiatric hospital as a voluntary patient in mid-June. 
There, she would have been informed by patient advocates (who are good people doing important jobs) that as an adult, she was free to leave and could not be involuntarily detained as long as she didn’t threaten suicide or assault anyone. She did not take all the medications suggested for her, or accept the doctors’ diagnosis. (The only diagnoses for Linnea made public are “OCD” and “anxiety,” which do not match the symptoms described. It’s likely that because she is now an adult, her parents and friends don’t know her current diagnosis. Mental patients often refuse to sign releases allowing doctors to discuss their illness with loved ones.)
After about a week, Linnea was transitioned to an outpatient treatment program that she was to attend while living at home. The news articles reporting that the psychiatric hospital gave her “a clean bill of health” at that time are demonstrably false. She wouldn’t have been in an all day outpatient program if she didn’t have a serious problem. (My SMI son was diverted to one of those programs once, after an ambiguous suicide attempt. It wasn’t much of a program, but between the staff and his parents, we somehow kept him safe until he was stable again.)
On the first day of outpatient treatment, she left during the lunch hour—as was her right--disappearing without a wallet or cell phone. Posters erected by the army of people searching for her say she was in “a hard to detect current delusional state” and “a danger to self without medication.” She was 5’2, 100 pounds, blond, blue-eyed, beautiful, highly vulnerable, and way too smart to take off with no means of support if in her right mind. She was doomed.
Linnea may have been better off in an inpatient program, but it wasn’t an option that LPS allowed. She couldn’t be held against her will. LPS forced everyone to negotiate with her over her illness, no matter how irrational she was.
Her parents probably heard the same thing that my husband and I did, once when our son was on a 72 hour involuntary hold order (called a “5150” under LPS) after a serious suicide attempt. In the hospital he had rapid-cycled into obvious mania, and was bound to crash again as sure as the sun is bound to set. But hospital staff told us they could not hold him as “a danger to self,” because there was no evidence he was currently dangerous. They “might” be able to hold him as “gravely disabled,” they said—but only if we refused to take him home. If the judicial officer didn’t order his commitment as “gravely disabled,” they would release him to the streets.
This stunned us, but of course we took him home. And nearly lost him again to suicide, a short time later. He survived, and was rehospitalized. The Lomaxes-- who were pressured into caring for Linnea without even knowing what was wrong with her-- weren’t so lucky.
In the midst of this crisis with our son I actually sat down to read LPS. As a lawyer who formerly represented mental hospitals in another state and was very familiar with its commitment laws and their constitutional underpinnngs, I brought a fair amount of education and training to the exercise.
LPS completely horrified me. Having now studied its history, I understand that the drafters’ intentions were good and further, that the statute fully accomplished its goals. What I can’t understand is why this outmoded and dysfunctional law is still around.
States have the power to order involuntary detention of the truly mentally ill if they are “a danger to themselves or others” or “gravely disabled,” subject to various constitutional protections that ensure the rights of the individual. But the way “dangerous” and “gravely disabled” are defined varies enough to make a huge difference, for someone like Linnea.
In California, the definition of “grave disability” used after a “5150” states that “a person is not ‘gravely disabled’ if that person can survive safely without involuntary detention with the help of responsible family, friends or others. . .” Cal, W.I.C. Section 5250(d). This phrase has had the perverse effect of forcing California mental health personnel to advise families to refuse to take their loved ones home, in the hope that the law will treat them as “gravely disabled” so they can get treatment. Instead of helping families this tears them apart. It also endangers their loved ones by coercing family to care for them, when they really belong in a hospital.
So let’s tweak LPS, substituting provisions from other states that could have helped Linnea. First, let’s eliminate the California provisions immunizing medical personnel from civil and criminal liability for throwing mentally ill people out on the streets, while repeatedly warning them that they can be personally sued for hospitalizing patients against their will. The old rule was “When in doubt, throw ‘em out.” Now, California medical personnel will be motivated to make decisions about whether or not to release a mentally ill, unstable individual based on their best professional judgment.
Next, let’s replace the current California definition of “grave disability” with the one in Florida, which allows commitment for any mentally ill person who is “manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being. “ This is a slightly more lenient standard, that won’t force family to reject their loved ones in order to get them help.
Now, let’s give all California doctors and credentialed mental health professionals the power to place 72 hour “5150” hold orders on their mentally ill patients whom they believe to be dangerous to themselves or others or gravely disabled, a power reserved in California to police and emergency room personnel who don’t actually know the patient. With this change, the professionals familiar with the patient don’t commit their client, but they can see to it that s/he is at least evaluated. If the “5150” was a mistake, emergency room personnel can lift the hold order immediately, and let the patient go home.
Finally, let’s make California into a state in which this initial evaluation includes not just an assessment of whether the individual is mentally ill, dangerous to self or others and/or “gravely disabled.” It will also include an assessment of whether the patient is mentally competent to make medical decisions, so that the commitment judge can enter an an immediate order for treatment if the requisites for commitment are proved and the patient is not mentally competent to evaluate his or her treatment needs. We’ll add some due process safeguards to our new statute, to ensure that the patient ‘s wishes are at least considered, and the treatment decision is a good one.
Here’s what could have happened to Linnea under this hypothetical law. UC Davis counseling staff could have placed a 72 hour “5150” hold on Linnea so she could be evaluated by mental health professionals in a hospital. With the newly relaxed definition of “grave disability,” it is likely on the facts assumed here that the hospital evaluation would have determined that she was mentally ill, gravely disabled, and in need of treatment, given her mental confusion, extreme weight loss, and dehydration. Linnea’s parents did not need to be called or even involved, unless Linnea wanted them involved. Neither did the police, unless she was so out of control that she needed police transport.
Linnea would also have been evaluated during those first 72 hours to determine whether she was mentally competent to make her own medical decisions. This means she would have been treated promptly even over her objections, assuming she was not mentally competent, instead of being “warehoused” for days without treatment. Psychiatric personnel could have done what they do best, instead of engaging in endless negotiation with an irrational person who was always on the verge of checking out of the hospital against medical advice. If promptly treated, Linnea might have been better within days, able to see that treatment had helped her, and able to make her own treatment decisions thereafter.
But Linnea had no previous signficant psychiatric history, and if she clammed up because her patient advocate told her to, she would have been difficult to diagnose. So let’s assume the initial diagnosis and medication were wrong. For example, if the initial assessment was unipolar depression and the hospital gave her strong antidepressants, it might have sent her into mania, which would have showed them she was bipolar. (This happened to my son , who on that occasion was dumped out of the hospital so quickly that personnel never saw his extreme manic reaction. He had medical insurance, so this was because of LPS rather than the expense of treatment. Once again, we were lucky he survived.)
So let’s change the California discharge standard, which currently mandates release when the patient is “no longer dangerous” or “gravely disabled”.  Under our new standard, Linnea could have been held until she was psychiatrically stable, and had a formal discharge plan. Treatment personnel would have made a medical judgment about when release was appropriate, instead of trying to predict the future, which is impossible. Linnea’s patient advocate could not have advised her that they would have to release her if she kept her mouth shut, because this would no longer be true. Cooperating with treatment would have helped her to be released sooner, rather than later.
Would these changes in California law fix all the problems with LPS? Not by half. I could go on for another fifty pages about the ways, both obvious and subtle, that LPS was designed to help deranged people check out of hospitals against medical advice and stop them from receiving treatment. The statute was deliberately broken when it was drafted. LPS is way beyond fixing, and we shouldn’t try. California needs to draft a new commitment statute, after looking at good models that exist in other states and civilized nations. Then, our state can go back to doing what it did in the 1960’s, and does best: innovating. With an eye to medical advances, insurance changes, and evolving constitutional standards, California could adopt a law that treats SMI’s more promptly for less money, and has some hope of keeping them stable.
Predicting dangerousness requires predicting the future, which is virtually impossible under any standard, much less the “clear and convincing evidence” standard that protects mental patients’ constitutional rights. But “grave disability” happens in the present and can be proved based on existing evidence. If we worked harder to treat the “gravely disabled,” it is possible that our laws could prevent massacres like the ones at Virginia Tech and Colorado before they occur.
Drafting a new California commitment statute might actually be easier than amending the old one, because civil libertarians will scream about amendments to sacred cow LPS—even though many SMI’s would be released more quickly, and be far less sick, under a more modern statute.
I was a civil libertarian once, before I had an SMI child. To those who espouse mental patients’ “rights” and “freedoms,” I have this to say: what rights, and freedom from what? Civil libertarians tend to assume SMI’s enjoy being sick and addicted, trapped in the terrible worlds created by their own brains. They don’t. As a parent, I worry more about our children’s “rights” to feel good enough that they aren’t constantly on the edge of drug abuse and suicide. Or worse yet, homicide. They have constitutional rights to treatment when they are locked up, which are constantly ignored in this state. And what about the rights of families to be free from the danger and chaos that comes with living with an SMI family member who refuses treatment? While mass murders like the ones at Virginia Tech and in Colorado get all the publicity, the dangerous mentally ill are far more likely to kill their own relatives than anyone else. And what about the public’s right to be free from dangerous individuals?
On the other side of the scales of justice are SMI’s supposed “rights” to check themselves out of hospitals against medical advice, and avoid medications that keep them safe. Rational people don’t like hospitals either but we go when we need to, and take necessary medications even if we don’t like it. Psychiatric wards are not the hell holes that California’s state hospitals once were, and psychiatric meds now work. The world has changed. The law should change, too.
*Mary Ann Bernard, who holds a B.A.. from Stanford and law degree from the University of Chicago, was counsel to state psychiatric hospitals for four or five years while an Assistant Attorney General in Minnesota. Now retired, she volunteers for mentalillnesspoliciy.org,, a non-profit think tank founded to provide unbiased information on serious mental illness to the media and policymakers.
 See Dr. E Fuller Torrey, The Insanity Offense (W.W. Norton & C0, 2008) pp. 28-31 for a more detailed description of the history of LPS.
 According to the National Alliance for the Mentally Ill (NAMI),“It is now generally agreed that as much as 50% of the mentally ill population also has a substance abuse problem.” See http://www.nami.org/Content/ContentGroups/Helpline1/Dual_Diagnosis_-_Substance_Abuse_and_Mental_Illness.htm. The MacArthur Violence Risk Assessment study found that the risk of serious violence for SMI’s released from hospitals was close to double for substance abusers. Torrey, Mentally Ill Endangers Its Citizens (W.W. Norton & Company, 2008 pp. 142,210. A more recent Swedish study showed that street drugs trebled the risk of violence for SMI’s with a diagnosis of schizophrenia. http://mentalillnesspolicy.org/consequences/violence-study.pdf.
See, eg.,- Evidence that Familial Liability for Psychosis is Expressed as Differential Sensitivity to Cannabis, 68(1) Archives of General Psychiatry 138-147 (February 2011), Dubovsky, Steven M.D., How to Reduce Mania Risk When Prescribing Stimulants, 4 Journal of Famil,y Practice (10) October 2005.
 The statement of facts in this article is derived from various news sources, and one of the posters used in the search for Linnea. See http://www.sacbee.com/2012/07/04/4609015/dad-feels-anguish-disbelief-with.html, http://www.christianpost.com/news/linnea-lomax-19-missing-after-leaving-mental-health-facility-77526/, http://www.google.com/imgres?hl=en&sa=X&rlz=1T4ADFA_enUS410US413&biw=1600&bih=773&tbm=isch&prmd=imvnso&tbnid=jNfYVLntdjiaVM:&imgrefurl=http://www.villagelife.com/news/help-find-linnea-lomax/&docid=Ll5VI3_vec98XM&imgurl=http://www.villagelife.com/wp-content/uploads/2012/07/LinneaPoster.jpg&w=770&h=595&ei=3tAjULeYH6mZiQL12IHYBA&zoom=1&iact=hc&vpx=181&vpy=130&dur=5829&hovh=197&hovw=255&tx=171&ty=166&sig=118285565438860312958&page=2&tbnh=140&tbnw=181&start=35&ndsp=39&ved=1t:429,r:0,s:35,i:187.
 See, e.g., W.I.C. 5113, 5154(a), and 5259.1.
 Because it is difficult to predict dangerousness, some states take the opposite approach, giving limited immunity to persons involved in committing and releasing mentally ill individuals, no matter what their decision. See. e.g., Minn. Stat 253B.23 subd. 4.
 Fla. Stat 394.467(1)(a)2.a (emphasis added).
 W.I.C. 5150.
 An in-hospital appeal procedure is preferable, see Washington v Harper, 494 U.S. 210 (1990).
W.I.C. 5230, 5237(a).
 See. E.g., Minn. Stat 253B.16 subd. 1.
 See Youngberg v. Romeo, 457 U.S. 307 (1982).
 Between 50 and 60 percent of homicide victims of the mentally ill are members of their own families. Non-fatal assaults against family members are also common. See Torrey, pp. 148-152.
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