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Conservatorship from a disability rights perspective

Here/Say recently interviewed District 8 Supervisor Rafael Mandelman on his pro-conservatorship stance and support of SB 1045, a controversial state law that expanded San Francisco’s ability to put unhoused people suffering from a combination of mental health and substance abuse disorders in court-ordered treatment. As a follow-up, we spoke with attorney and disability rights advocate Susan Mizner of the ACLU, who opposes conservatorship and SB 1045. 

San Franciscan Susan Mizner has dedicated the bulk of her professional life to disability rights. She founded the American Civil Liberty Union’s Disability Rights Program in 2012 and continues to direct the program, which coordinates with national and state ACLU offices on disability rights litigation and policy. 

From 2003 to 2012, Mizner was Director of the San Francisco Mayor’s Office on Disability, serving part of that time under then-Mayor Gavin Newsom. Prior to that, she was a fellow with the Homeless Advocacy Project and worked with unhoused individuals with disabilities. 

But her dedication to disability rights also stems from personal experience. Between graduating from college and going to law school, she spent some time in China, where she got very sick and developed a chronic illness. 

I went to law school at Stanford, primarily from a cot,” Mizner told Here/Say. Eventually, she reframed her disorder as an asset rather than a handicap, one which made her part of a strong and passionate community. To this day, she defends those with disabilities against legal measures such as conservatorships

If that word rings a bell, it might be because conservatorship has been a hot-button topic in San Francisco for years. In March, conservatorship again popped into the city’s lexicon when officials revealed that as of Jan. 31, 2021—nearly two years after the passage of SB 1045—San Francisco had conserved only one individual

District 8 Supervisor Rafael Mandelman told us then that he was disappointed that the legislation’s implementation hadn’t gone further. For Mizner, however, conservatorship should be the rare exception rather than the rule. 

It is generally a mistake,” she told Here/Say. “The fact that it is the right choice is the exception.” 

Here/Say: How can conservatorship endanger civil liberties? 

When you're under a conservatorship, someone else chooses where you live, someone else chooses who you see. Frequently in these institutions, someone decides when you wake up, someone decides not only when you eat breakfast, but what you eat for breakfast, whether you're going to go outside that day, who you're going to see, whether you're going to be able to have any activity in the afternoon, what books are going to be able to read. It's absolute control. 

So there is someone else who makes every decision for you. 

We have, as the ACLU, huge reservations about any time someone's civil liberties are taken away and real concerns about due process if that happens. 

Here/Say: Why is conservatorship particularly concerning to the disability rights community? 

Because we're the only ones who get conserved. Only people who have very significant physical disabilities, which tend to limit communication access, and people who have mental health disabilities get conserved. 

Here/Say: What are your thoughts on SB 1045? 

Mizner: I've opposed it from the beginning and I oppose it now. [But] I want to start with where I agree with the people who propose this. We all agree that there's a problem with many people on the street who clearly have significant mental health and substance use disorders. We all agree that those folks need more help. Where we disagree is that more coercion is the answer rather than more services and housing. Before you start coercing people into treatment, you should offer it to them voluntarily. 

Not everyone wants to go see a Ph.D. Some people will do much better with peer support. Not everybody works well with A.A. (Alcoholics Anonymous) in terms of dealing with a substance use disorder. Many people do really well with harm reduction. Other people do really well with medically assisted treatment.

We need to have a genuine array of options that provide people treatment and choices before we look at conservatorship. 

Here/Say: The threshold for conserving someone under SB 1045 is relatively high—eight 5150s, or emergency psychiatric holds, in a year’s time. Why is SB 1045 still concerning to you?

The problem is that it's not psychiatrists who primarily do the 5150s for people who are on the street. It's law enforcement. So it can be a really biased tool. Thirty-two percent of the people who have four or more 5150s in San Francisco are Black. 

Here/Say: What do you say to people who argue the city’s in crisis and doesn’t have time to coax individuals into voluntary services?

Mizner: If you don't buy the moral-ethical argument about why voluntary services are a better approach and relationship building is a better approach, then I would say that there are two more arguments for you. The first is efficacy and the second is cost. There have been lots of studies that show that coercive treatment is no more effective than voluntary services. … So why do it? 

[On cost], think of all of that effort that went into those 5150s. Think of all the people hours. Think about all the costs. I mean, hundreds of thousands of dollars in administrative proceedings to conserve people and one year in a locked institution… you can buy a lot of housing and a lot of services for that amount of money.  

I'm saying that budgets are moral documents and that spending our money on crisis services instead of spending our money on preventive programs that include housing supports and mental health treatment is the wrong way to be spending our money. 

Here/Say: Are there alternatives to conservatorship? 

Mizner: There are many different models that are out there, all of which are much less draconian than conservatorship. 

For example, with finances, there's a power of attorney for finances, with health care, there's a power of attorney for health care. There are supported housing arrangements that pay the rent so that someone always has a room to go into and a door to close behind. 

There's another model as well that is newer. That model is called supported decision-making. And it builds on the idea that we all use supported decision-making all the time and that there are some people who need a little bit more formal recognition of the supported decision-making. So when I'm buying a car, I go to experts who know more about cars than I do in deciding which car models to try out, right? That's supported decision-making for my daily life.

So supported decision-making is another model that doesn't deprive people of their civil liberties. It's very focused on the individual choosing people they trust.

Here/Say: Do you have confidence in the city to be able to implement the services needed to get people who need help off the streets? 

I think the pandemic has shown that we can house people rapidly, right? 

I think we take some of [those] lessons and say, 'OK, we know we can house a lot of people really quickly.’ We take advantage of the funding that's coming from the federal government. We take advantage of the money that's from Prop C and from the Mental Health Act. We use a lot of the people who have the lived experience and invite them, if they are willing and able, to get some of the training and background to help with the expansion of services, and we give that time to work. 

When I went into homeless advocacy work more than 20 years ago... I was really hoping I was going into my job to put myself out of business, that we would just get a handle on this homelessness issue. It's much bigger than any one jurisdiction. It started back with huge cuts to housing and urban development funding for supported housing. It continued with huge cuts in mental health funding, and it's just snowballed. 

We are 40 years into this mess, right? We started having a homeless problem in the 1980s with Reagan's budget cuts, and we're not going to get out of it in two years. 

This conversation has been edited for length and clarity. The views expressed in this Q&A are the interviewee’s own and do not represent an editorial position by Here/Say Media.