California Gov. Gavin Newsom is pioneering a court model that he claims is supportive and empowering to people who have severe mental illnesses, but civil rights advocates oppose the plan, arguing it subjects individuals to involuntary mental health treatment.

Under Newsom's plan, family members, behavioral health providers or first responders can petition community assistance, recovery and empowerment courts, or CARE courts, to get court-ordered treatment for adults who have schizophrenia or another psychotic disorder and lack decision-making capacity.

Civil rights advocates who oppose Newsom's plan take issue with the criteria and the governor's framing of the proposal, arguing the courts can't be empowering when people who lack decision-making capacity are being subjected to involuntary treatment.

If people under the supervision of CARE courts lack decision-making capacity, they can't voluntarily accept medical care, advocates say.

Matthew Gallagher, a former county prosecutor and assistant director of Cal Voices, a local mental health advocacy and support organization, told Law360 in a recent interview that there is an inherent conflict in the criteria of CARE court.

"The whole reason that an individual would lack [decision-making] capacity is the basic premise that they cannot consent or reject treatment," Gallagher said. "That is why a petition is being filed, and that is why the court is ordering them into treatment because they cannot make that decision for themselves."

Newsom unveiled the CARE court framework in March at a mental health treatment center in San Jose, saying the courts would provide support to thousands of Californians who are homeless and have severe mental illnesses.

The following month, companion legislation, S.B. 1338 and A.B. 2830, was introduced by Sens. Thomas Umberg, D-Santa Ana, and Susan Talamantes Eggman, D-Stockton, and Assemblymember Richard Bloom, D-Santa Monica.

The bills would require all California counties to establish CARE courts that could order treatment plans for up to 12 months with periodic review hearings and be renewed up to another 12 months. People who don't complete their court-ordered treatment can be hospitalized or referred to conservatorship.

In April, the Senate bill, which is supported by local lawmakers, the California Hospital Association, the California Fire Chiefs Association, Families Advocating for the Seriously Mentally Ill and National Alliance on Mental Illness-California, advanced in the Senate Judiciary and Health Committees without amendments. Meanwhile, the Assembly bill has stalled.

Umberg told Law360 in a recent interview that he supports CARE courts because of his involvement for 20 years with collaborative courts like mental health and drug courts that are cousins to CARE courts.

"Communities and individuals benefit from avoiding incarceration and addressing underlying issues," he said about collaborative courts.

Jessica Cruz, executive director of NAMI-CA, said the alliance supports CARE courts but has suggestions to "ensure equity, preventative care and choice remain paramount in the delivery of the court itself," including making services offered through CARE courts available to the community at large on a voluntary basis.

"CARE Court gives us hope that our loved ones will avoid having their rights stripped by way of the criminal justice system or any of the other horrible trajectories [our] loved ones find [themselves] on because of an untreated serious mental illness," Cruz said in an email to Law360.

On the other side, CARE courts are opposed by more 50 advocacy organizations, including the American Civil Liberties Union California Action, the Bazelon Center for Mental Health Law, the California Psychological Association, Disability Rights Advocates, Human Rights Watch, Mental Health America of California, the National Homelessness Law Center, Psychologists for Social Responsibility and the Racial and Ethnic Mental Health Disparities Coalition.

In an opposition letter to Umberg, who is chair of the Senate Judiciary Committee, ACLU California Action along with more than 40 signers said current state law requires the offering of a voluntary treatment plan before a finding can be made that a person lacks medical decision-making capacity.

"Under the language of SB 1338, the process is reversed: a person is first found incompetent to make decisions about medical treatment and, only after such finding, offered any information about the proposed treatment," the April 21 letter said.

The opponents also said the use of the terms "supported decision-making" and "supporter" in the bill obscures the involuntary element of CARE courts.

John Raphling, a senior researcher at Human Rights Watch, an international human rights advocacy organization, said in a recent interview that the proposed CARE court bill contains a lot of wordplay and that lawmakers are pushing it through without asking enough questions.

"The [CARE court] process is you either enter into an agreement to have the treatment that we want you to have, or the judge will order you to do the treatment that we want you to have, so it's coerced care, and that's highly problematic from a civil and human rights perspective," Raphling said.

California already has two laws that allow giving certain people involuntary medical treatment. Under the Lanterman-Petris-Short Act, Californians can be involuntarily placed in medical care for 72 hours if they are believed to be a danger to themselves or other people. The law also allows gravely disabled people to be placed in conservatorships.

A 2002 statute called Laura's Law — named after Laura Wilcox, who was killed by a man who had an untreated severe mental illness — allows people who have severe mental illness to be placed in involuntary community-based, assisted outpatient treatment.

"Why do we need a third involuntary program? If you want to make involuntary treatment better, if that's your true aim, why not reform existing programs?" Gallagher said.

A spokesperson for the governor's office said in a statement that people "arguing for the status quo support a cycle of homelessness, incarceration, and death that simply cannot continue."

"There is nothing compassionate about letting individuals live on our streets as they struggle with severe mental health issues and substance abuse disorders," the spokesperson said.

Kevin Baker, director of government relations at ACLU California Action, said in a recent interview with Law360 that the CARE court plan is also flawed because people who are homeless and severely mentally ill are unlikely to come to court to respond to a petition against them.

"This model assumes that the person who needs services is sort of the bad guy who needs to get hauled into court," Baker said.

Another concern of CARE court opponents is that more Black and brown people will be under court supervision because they are disproportionately homeless and diagnosed with severe mental illnesses.

Shonique Williams, a statewide organizer for Dignity and Power Now, a Los Angeles-based grassroots organization that advocates for people who are incarcerated and their families, said she experienced firsthand how Black people are misdiagnosed with severe mental illness by behavioral health specialists.

Williams, now 30, said that when she was 15 she was misdiagnosed with bipolar disorder after her best friend was murdered, even though she was experiencing normal grief and loss at the time.

According to Williams, her best friend was the only person she confided to about family abuse, and after her friend was murdered, she became depressed and attempted suicide. She was hospitalized for her suicide attempt.

"If I wouldn't have had a few little therapists along the way that were willing to actually hear my story and learn [that] this is the result of trauma, I would've been out here misdiagnosed with bipolar [disorder], taking medications that would not have been beneficial to me and my mental health," Williams said.

Mental health advocates say a better alternative to CARE courts would be more affordable housing and voluntary, community-based mental health services.

According to a 2001 study conducted by the RAND Institute and commissioned by the California Senate Committee on Rules, court-ordered treatment in itself is not more effective than voluntary treatment. Instead, an outpatient treatment program's success is determined by its resources and ability to deliver services.

Gallagher said that California will not be able to build out its voluntary mental health services if the state keeps funneling funding into involuntary treatment programs.

"There will never be enough services to meet the need in the voluntary sphere as long as we continue to divert voluntary funds away from that," he said.

--Editing by Marygrace Anderson and Brian Baresch.

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