In May, state lawmakers voted to update Hawaii’s difficult-to-implement Assisted Community Treatment Law, a move aimed at making it easier for advocates to obtain court-ordered psychiatric care for people who refuse treatment, usually because their illness prevents them from knowing they are sick.

Now the nonprofit Institute For Human Services, which runs Hawaii’s largest homeless shelter, is preparing to submit its first four petitions under the newly strengthened law, asking a judge to order a woman and three men to undergo intensive psychiatric treatment while remaining in the community.

The four people have been homeless in Hawaii for more than 10 years. They are diagnosed with schizophrenia and have a history of incarceration, according to IHS spokesman Kimo Carvalho. They range in age from late 40s to early 60s.

Elderly couple embrace after packing up some of their belongings along Hotel Street.
Nearly a third of homeless adults on Oahu report that they suffer from a serious mental illness. Yet it is rare for Hawaii courts to force people suffering from severe psychiatric illness into treatment. Cory Lum/Civil Beat/2018

“These are classic cases of chronic mentally ill, homeless people who have been on the streets for a long time but who have refused treatment over and over for as long as we’ve known them,” Carvalho said.

IHS plans to submit the petitions this month.

The Debate Around Forced Treatment

Hawaii has the highest rate per capita of homelessness in the nation. Nearly a third of homeless adults on Oahu report that they suffer from a serious mental illness.

Yet in Hawaii it’s rare for courts to order psychiatric treatment without a patient’s consent. Forced treatment is reserved only for individuals found to be dangerous to themselves or others, or so gravely disabled that there is no alternative to hospitalization.

This strict criteria functions as a safeguard to protect people with mental illness from losing their civil right to determine for themselves whether they wish to receive mental health care.

Opponents of the kind of court-ordered psychiatric care facilitated by the ACT law argue that the legal system shouldn’t be able to force them into unwanted treatment except under the gravest of circumstances.

Those who support the ACT law maintain that it’s inhumane to allow a person with diminished mental capacity to refuse psychiatric treatment to their detriment.

A family court judge will vet ACT petitions to decide whether to uphold a mentally ill person’s constitutional right to refuse treatment or order them into treatment, regardless of consent, because they lack the mental capacity to make a sound choice about their own care.

Previous Law Barely Used

Fewer than 10 people have received outpatient treatment through the ACT program since the law passed in 2013, in part because advocates have struggled to prove in court that the people they’ve identified as program candidates were a danger to themselves.

When lawmakers repaired the ACT law earlier this year, they passed a bill that more clearly defines what it means for a person to be “dangerous to self” — an important requirement for a successful petition.

The term is redefined as a person who has threatened or attempted suicide or bodily harm, or behaved in a manner that indicates they are unable to provide themselves with food, shelter and medical care — including treatment for a mental illness.

The amended language adds severe acts of self neglect as a means of self harm, thereby broadening the definition of what it means to be a danger to oneself beyond blatant acts and threats of suicide.

This change is expected to make eligible a new category of candidates for the ACT program. People who meet the criteria for court ordered, outpatient psychiatric treatment do not always outwardly threaten to take their own lives; however, they often display an inability to meet their basic needs.

Carvalho said the new law provides more clarity about who is suffering a psychiatric emergency and “who is unaware that they are sick and if nothing is done they will continue to decompensate to the extent that they are at risk of losing their life.”

“We are developing these four cases to present strong evidence to the court toward those criteria.”

A Last Attempt At Intervention

Mental health advocates say they don’t seek to employ the ACT law as a first or even second layer of intervention when attempting to help someone who is chronically homeless and seriously mentally ill.

At IHS, outreach workers start by developing a trusting relationship with the person. Over time, some of these people can be coaxed into accepting the mental health care they need.

“We have been able to get some of our most chronically homeless, mentally ill people off the streets just by developing that relationship with them and getting them to accept treatment,” Carvalho said. “That’s the most cost-effective approach.”

When this approach fails, outreach workers seek contact with close relatives who might be willing to step in as the person’s legal guardian. Guardianship grants another person decision-making authority over the mental health treatment of a person with a serious psychiatric illness.

When a cooperative close family member cannot be found, IHS workers attempt to employ the ACT law.

Last summer, IHS successfully petitioned to get a person into the program who had been arrested more than 30 times.

But many similar attempts by the organization to petition the court to employ the ACT law have failed, in part because the process is lengthy and onerous and IHS doesn’t have adequate staff or funding to support the cases.

“The courts and the public defenders want to make sure that we aren’t taking advantage of these clients, and that is absolutely respectable and we absolutely want to make sure that there is a solid law that does protect the human rights of these clients,” Carvalho said.

“We are hoping that the changes in the law will help us stabilize these people.”

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