Since his first administration, President Donald Trump has mocked people with disabilities and unfairly stereotyped all people with mental health conditions as “dangerous.”

Even though groups like the American Psychiatric Association have confirmed that the majority of people with mental illness are more likely to be victims, not perpetrators, of violent crime, the administration insisted on labeling perpetrators of gun violence “mentally ill monsters.”

Instead of addressing the underlying causes of gun violence, the federal administration has promoted sensationalized policy.

The president has also called for reopening mental institutions and asylums, a dehumanizing and medically inappropriate way of caring for vulnerable people.

Condemning people with mental health issues and temporarily removing them from public eyesight by stripping away due process rights may be expedient, but it wholly ignores the systematic policy reforms needed to help them.

The second Trump administration is threatening to cut over $11 billion in funding for mental health programs. This will exacerbate the mental health crisis locally and nationwide.

Hawai’i is not immune from this misguided approach, rooted in similar stereotypes and paternalism. Senate Bill 1322, which recently passed the Legislature and has been enrolled to Gov. Josh Green, risks mirroring at the local level what has been brewing in the federal sphere.

A Dangerous Bill

Proponents have framed SB 1322 as a “housekeeping” measure. In truth, the bill loosens guardrails to detain, hospitalize, and medicate individuals against their will. It allows extraordinary and potentially unconstitutional violations of autonomy without adequate due process safeguards or investments in housing and health care.

SB 1322 is dangerous because it would reduce the current panel of three medical experts required for involuntary medical treatment for hospitalized individuals to just one individual. This opens the door to arbitrary decision-making, unchecked human error and an expedited “rubber stamp” process.

Medical professionals have to be careful not to confuse their medical expertise with a license to control. The desire to do good for others is commendable and sometimes necessary, but the insistence on reducing constitutional safeguards when those decisions infringe upon liberty, bodily autonomy, privacy, and equality is troubling.

Making matters worse, Hawai’i does not guarantee the right to legal counsel in Assisted Community Treatment or administrative involuntary treatment proceedings. In contrast, at least 31 other states and Washington, D.C., provide a right to counsel in involuntary civil treatment proceedings.

Laws that deny people experiencing mental illness their civil and human rights seek to sever them from society and humanity. We cannot accept this.

Why does legal counsel matter?

Involuntary hospitalization and medication are coercive measures that violate patient autonomy and should be very carefully considered exceptions to the standard of voluntary care. Courts are clear that liberty interests of individuals must be very carefully protected. “Freedom from unjustified governmental intrusions into … bodily autonomy [is] at the core of the liberty protected by due process.” State v. Miller (1997).

The Hawai’i Supreme Court has noted that “the forcible injection of medication into a non-consenting person’s body represents a substantial interference with that person’s liberty.” State v. Kotis (1999), quoting the Supreme Court in Washington v. Harper.

Accordingly, people facing treatment against their consent require protection of their legal and civil rights (“[C]ivil commitment of the mentally ill for any purpose constitutes a significant deprivation of liberty that requires due process protection.”

The state may not commit somebody unless “his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty. Humphrey v. Cady (1972). The freedom given to people to live as they wish is sometimes more expansive than some would like to admit (O’Connor v. Donaldson (1975)).

Nevertheless, the law is clear. The question is whether our legislators and medical professionals will accept and implement the protections of the law or flout them.

Increasing forced treatments but not implementing programs to help people after treatment constitutes a policy failure.

There are other options besides neglecting people in need and subjecting them to coercive care. A system of care that helps people is necessary to prevent a revolving door to involuntary hospitalization.

Otherwise, hospitalizations will increase and facilities will become overcrowded, but few people will receive the care they need.

There is a time and place for involuntary hospitalization and treatment. However, respect for people’s inherent dignity and constitutional rights demands that when we resort to such extraordinary measures, we do so with caution and meet legal standards.

SB 1322 threatens to upset the necessary balance between respect for people’s liberty and autonomy and concern for their health. Our most vulnerable neighbors need more protections, not less.

The ACLU of Hawai’i urges Gov. Josh Green to veto SB 1322 and fulfill his oath to uphold the Constitution, which includes protecting the civil rights and liberties afforded to all people under the law.