Two recent cases show how a law protecting the privacy of the mentally disabled leaves serious gaps in public accountability

p180okb3vl1e6e10mofis4g91upp4It’s an interesting common phenomenon that when the government takes over the lives and fortunes of its citizens in a comprehensive way, those taking charge are given comprehensive secrecy in how decisions are reached and executed. This is done for the best-sounding reasons—privacy, rehabilitation, etc.—but the fact is that those most clearly protected from loss or harm are the caretakers who are incidentally protected from accountability as well.

California laws, for example, make it very difficult if not impossible for journalists or public interest watchdogs to use government records or targeted interviews to examine and report on the treatment of prison inmates, wards of the juvenile court or those given short- or long-term mental health treatment by state agents or contractors.

The latter category is governed by the Lanterman-Petris-Short Act (LPS), the historic California framework signed into law by Governor Reagan in 1967, providing a graduated sequence of involuntary commitment to institutions for the examination and treatment of those appearing to be mentally disabled, to one degree or another, from living independently, and thus posing a danger to themselves or others. In contrast to the relatively ironclad institutionalization of the retarded, the severely alcoholic or the mentally ill that was the norm for the first third of the 20th Century, or the about-face deinstitutionalization policy of the second third, the LPS enacted in the final third aims at a finely adjusted balance between private liberty and public safety. Confined treatment is prolonged and deepened only in a gradual and court-supervised sequence. The course of intervention ranges from the 72-hour hold for the initial police-detained examination to the “permanent” conservatorship—actually a one-year hold for those with grave disability.

Two recent developments demonstrate what a tightly buttoned-up world the LPS regime can be. One is a decision by the California Court of Appeal that, in deference to the secrecy of LPS treatment, the public has no right to know what evidence was presented to juries in two closed door court proceedings in 2011 which found a Salinas man not to be “gravely disabled” and needful of either confinement in a locked facility or under the care of a conservator. Eight days after his second hearing, Christopher Sorenson’s mother was beaten to death, and he is now charged with that murder.

The Monterey Herald, the Salinas Californian and the Monterey County District Attorney sued for access to the two fitness hearing transcripts, but the trial court held that their confidentiality was overridden by the public’s constitutional right to monitor judicial proceedings, especially those relating to crime. But a three-judge panel of the Sixth District Court of Appeal disagreed, finding that the factors supporting open criminal trials as a First Amendment right did not apply to proceedings such as those in question, which were not directed to criminal justice but to an individual’s mental capacity to be free from close confinement or control. Moreover, the justices in Sorenson v. Superior Court reasoned, California law mandating open non-criminal trials and hearings made an exception for “special proceedings” made confidential by particular statutes.

The Public Defender, who represented Sorenson in resisting either public or prosecutorial access to the transcripts, expressed relief in his reaction to the appellate court’s decision, stressing the “stigma” that the subjects of such hearings could suffer from having their mental competence examined publicly. But, as reported by Julia Reynolds for the Herald, editor Royal Calkins was disappointed.

It's an unfortunate decision that ignores the reality that trials like this have been routinely open to the public here and elsewhere for years. . . It also makes it all but impossible for the public or the press to determine whether the mental health and legal systems are competently dealing with severely disabled and potentially dangerous people. The justices blow off that issue by concluding that if the process is being abused, the subject of the hearing could choose in advance to formally open the trial to the public. In this case, there is no indication that Mr. Sorenson was advised of that right and, of course, officialdom had already deemed him to be incompetent.

Tomorrow: LPS secrecy and reports of violence in mental health care facilities.