State’s new conservatorship law isn’t working

As an emergency physician in San Francisco, I’m currently seeing more patients with mental health and substance use crises than ever before in my two-decade career. Our emergency department and others like it across the region are overwhelmed.

Last year, the governor signed SB43, which promised to help. It took existing conservatorship rules for those with extreme mental health conditions and applied them to those with substance use disorders alone. Advocates for this bill said it would save the lives of those with severe addiction issues, especially those living on the streets, by forcing them into care. The legislation envisioned such individuals being detained on involuntary holds in emergency departments like mine until they can eventually be transferred to a longer-term treatment facility and conserved — after which treatment for substance use can be mandated.

The law has been in effect since Jan. 1. But it won’t work if it relies on emergency departments.

Before SB43’s enactment, patients considered a danger to themselves or others, or “gravely disabled” — meaning they could not feed, clothe or shelter themselves — were brought to emergency departments and placed on 72-hour involuntary psychiatric holds that prevented them from leaving. If their condition persisted, they could be held longer, brought before a judge and eventually conserved.

SB43 expanded the definition of “gravely disabled” to include individuals with severe substance use disorders alone — if they are refusing necessary medical treatment. Nearly every shift, I already see the patients SB43 aims to help. They are brought in for acting erratically, unsafely or violently. Behaviors can include running through

traffic, repeated overdoses reversed by Narcan or brandishing weapons in public. I have learned that psychosis due to methamphetamine is no longer something I can differentiate from serious mental illnesses such as schizophrenia. Sometimes, they occur in tandem.

After SB43 took effect, the city provided guidance that said patients targeted by the new law could be held involuntarily in emergency departments. While this may be true while patients are acutely intoxicated, once they are sober, I can’t continue this hold in perpetuity.

Despite what SB43 legislates, substance use disorders in the absence of underlying mental illness can’t be grounds for holding patients or treating them involuntarily. Substances wear off. And when they do, most patients don’t demonstrate the type of cognitive damage that would require me to continue an involuntary hold — even if they are refusing medical treatment that I might consider necessary.

As long as emergency departments have been in existence, they have treated people with severe alcohol use disorder, a condition eligible for conservatorship for those “gravely disabled” by it long before SB43. While we at times need to admit these patients to a hospital for withdrawal symptoms that we cannot get under control in our emergency department, if they stabilize, they must be discharged — unless we find evidence of cognitive impairment. We try to refer these patients to treatment, and sometimes it succeeds. We are also beginning to offer new treatments such as naltrexone, which reduces cravings and hopefully will help some folks cut down or quit altogether. But only if someone wants it.

Implementing conservatorship is challenging and timeconsuming. Emergency departments like mine are already filled with countless patients on involuntary psychiatric holds due to serious mental illness. A shortage of available inpatient beds in locked psychiatric facilities means these patients — disproportionately poor, often homeless and on Medi-Cal — must typically wait days for a bed to open elsewhere. When a patient does require conservatorship for a serious mental illness, they must often wait weeks or longer.

Patients often live in hospital rooms and hallways while they wait.

This situation is already untenable. Emergency departments are loud, brightly lit and often add to the stress or confusion of our patients with behavioral health diagnoses. This in turn can lead to violence. Recent surveys have found that 66% of emergency physicians had been physically assaulted while at work, and even higher rates of violence have been experienced by emergency nurses.

Many patients with severe substance use disorder don’t want to stay for treatment if physical signs of withdrawal kick in. And I’m not allowed to treat withdrawal without consent.

SB43 doesn’t allow for mandated substance use treatment or other forms of forced medical care until after a patient is conserved. According to current law, forcing medical care upon a patient who is refusing it is considered battery.

Some psychiatric medications can be given to patients without their authorization if a judge issues what is called a Riese order. But any forced medical treatment beyond that requires a legal authorization called an Affidavit A, which can only be obtained once someone is conserved. That can take weeks, months or even years.

Many patients with severe substance use disorders also have serious medical problems. I have seen devastating wound and skin infections stemming from substance use and other conditions such as poorly controlled HIV or untreated cancer.

But if a patient doesn’t want to be treated and has the capacity to decide against it — which most do — the law requires I let them go.

SB43 is already creating confusion. It empowers law enforcement officers and others to bring more patients to our already crowded department on involuntary psychiatric holds for severe substance use alone, thinking we will provide a path to conservatorship. However, that path breaks down if a patient has decision-making capacity once no longer intoxicated.

Without an ability to enforce an involuntary hold once someone is sober, and without an ability to mandate treatment if a person is not conserved, the law’s purpose is questionable.

The patients whom SB43 aims to help need two main things: more low-barrier access to substance use treatment and permanent supportive housing. Emergency departments are a crucial part of our nation’s medical, mental health and substance use safety net. They are not prisons.