BILL ANALYSIS
AB 1042
Page 1
Date of Hearing: April 8, 2003
Counsel: Danielle Lee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 1042 (Parra) - As Amended: April 3, 2003
SUMMARY : Requires the Department of Mental Health (DMH) to
issue pepper spray to medical technical assistants (MTAs)
working in DMH facilities while on duty. Specifically, this
bill :
1)Requires the DMH to issue oleoresin capsicum (OC) pepper spray
to all California Department of Corrections (CDC) MTAs while
on duty and assigned to DMH facilities.
2)Requires the OC pepper spray dispenser to be the same type and
capacity as those used by MTAs and correctional officers in
CDC facilities.
3)Requires the DMH to establish procedures for the use of OC
pepper spray on inmates housed in DMH facilities.
4)Requires those procedures to permit MTAs to use OC pepper
spray for self-defense or the defense of others to the same
extent as those uses are permitted in prison.
EXISTING LAW :
1)Gives the DMH Director the authority to control the DMH and
adopt and enforce all the rules and regulations necessary to
carry out its duties. [Welfare and Institutions Code Sections
(WIC) 4000 to 4005.1.]
2)Declares that state institutions for the mentally disordered
are under DMH jurisdiction, and are governed by DMH uniform
rules and regulations. (WIC Sections 4100 to 4101.)
3)Establishes that these state hospitals' primary purpose is the
medical and nursing care of mentally disordered patients, and
that hospital officers and employees shall direct their
efforts to this end. (WIC Section 4304.)
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4)Provides that subject to DMH rules and regulations and under
the hospital director's supervision, the hospital
administrator shall be responsible for the planning,
developing, directing, managing and supervising of all
administrative and supportive services in the hospital
facility including, but not limited to, security functions.
(WIC Section 4306.)
5)Prohibits use of restraint in DMH facilities except when
necessary to prevent immediate injury to the person or others,
and only when there is no less restrictive method to prevent
injurious behavior. Prohibits use of restraint as punishment
or for the staff's convenience. Prohibits use of restraint
absent the documentation of a separate justification for each
intervention. (9 CCR Section 784.35.)
6)Defines "restraint" as including chemical restraint in a
manner not required to treat the client's physical symptoms.
(9 CCR Section 784.45.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "DMH facilities,
such as the California Mental Health Facility in Vacaville,
house some of the most violent, mentally ill inmates in
California. MTAs oversee and treat these inmates at these
facilities.
"However, unlike MTAs employed at CDC facilities, MTAs assigned
to DMH facilities are not allowed to carry pepper spray.
These MTAs are being assaulted and injured at an alarming
rate. The assault rate at DMH facilities is five times
greater than at CDC facilities.
"This bill merely provides that MTAs working at DMH facilities -
like those working at the CDC facilities - can also carry
pepper spray to protect themselves."
2)Background :
a) Pepper Spray : Pepper spray was widely adopted by law
enforcement agencies nationwide during the late 1980's as
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an effective way to subdue violent and dangerous suspects
or inmates with little force. In 1994, the National
Institute of Justice sponsored an assessment of pepper
spray's usefulness. A research team from the International
Association of Chiefs of Police (IACP) analyzed the data
from the study. The team found that the use of OC pepper
spray effectively neutralized aggressive suspects, reduced
the incidences of assaults on police officers and decreased
the occurrence of injuries to both officers and
suspects/inmates.
OC is the oily extract of the cayenne pepper plant developed
into an aerosol spray. The physical effects of being
sprayed with OC pepper spray range from tearing,
involuntary closing of the eyes, to coughing and shortness
of breath. OC sprays leave few, if any, residual effects.
Decontamination protocol requires only fresh air and soap
and water. Further chemists from the FBI's Forensic
Science Research and Training Center did not see any
long-term health risks associated with the use of OC spray.
b) Assault Data : Assault rates at DMH facilities are five
times higher than that at the institutional level.
i) In 2000, the rate of assaults at the California
Medical Facility prison facility was 4.5 per 100 inmates.
Comparatively, in the same year, the rate of assaults at
the California Medical Facility psychiatric facility was
22.8 per 100 inmates.
ii) As a result of these attacks, 1,029 workdays were
lost.
iii) Thirteen MTAs have been forced to medically retire
since 1997 due to injuries they received a result of
assaults by inmates in the psychiatric facility.
iv) Approximately one out of three MTAs is the victim of
an assault by an inmate each year in the psychiatric
facility.
3)The DMH Director Has Broad Discretionary Authority and Power
Regarding the Operation of State Institutions for the Mentally
Disordered : Given that the primary purpose of these
institutions is the care of the mentally disordered, the DMH
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Director and the hospital administrators appear to be in a
better position to evaluate the best methods of security and
safety for employees while carrying out the DMH's purpose.
For example, a person with a mental disorder may not respond
to pepper spray in the same fashion that a CDC inmate would.
With the variety of mental disorders that exist, it is unknown
how each would react to pepper spray, and whether this would
be an appropriate method of ensuring employee security in
relation to persons with mental disorders.
This bill permits DMH to implement the policy and procedures for
MTAs' use of pepper spray as long as DMH allows MTAs to use
the pepper spray in a case of self-defense on inmates.
Therefore, this bill does give DMH the discretion it would
need to fashion policy and procedure for MTAs to carry and use
OC pepper spray in a manner consistent with DMH policy and
purpose.
4)Arming Medical Technical Assistants with Pepper Spray May Be
Inconsistent with DMH Policy of Using Minimal or No Restraints
on Patients : According to the DMH Special Order on Prevention
and Management of Assaultive Behavior (PMAB), DMH requires all
staff, clinical and non-clinical, to be trained in PMAB
techniques. PMAB should be utilized first and foremost as the
method of handling physical containment of patients. The
focus of PMAB is to use the least possible physical
intervention to resolve inmate conflicts and potentially
assaultive incidents. PMAB focuses ethically sound,
non-offensive authorized verbal de-escalation techniques, as
well as physical interventions and self-protection techniques.
To require that MTAs be issued and allowed to carry and use OC
pepper spray appears to contradict this policy as the pepper
spray would be readily available to MTAs as the first means to
contain an inmate. Additionally, MTAs are part of the nursing
component of the patient treatment and not primarily used as
custody personnel; allowing MTAs to carry pepper spray may
contradict the nature of their medical support position.
5)CDC Administrative Bulletins on the Use of OC Products, such
as Pepper Spray, Reflect a Policy of Accomplishing Custodial
and Correctional Functions with Minimal Reliance on the Use of
Force : The bill requires DMH to allow MTAs to use pepper
spray in self-defense and defense of others to the same extent
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as those uses are permitted in prison. According to the CDC's
Administrative Bulletin on use of OC Products, "for incidents
involving seriously mentally disordered inmates housed in
departmental hospitals, infirmaries, Enhanced Outpatient
Programs, Mental Health Crises Beds, and Psychiatric Services
Units, a licensed health care employee designated by Health
Care Management must be consulted. The decision on whether to
proceed with the use of OC will be made by the Health Care
Manger or his or her designee. Health care staff shall be
aware that, in providing their consultation, consideration
must be given to the medical/psychiatric implications of OC
use versus the potential for injury in the use of physical
force." (Emphasis in original.) The Administrative Bulletin
also directs that OC pepper spray not be used as punishment
and only administer the amount necessary to accomplish the
control objective.
The regulations governing the use of restraint in DMH facilities
also allows use of restraints when necessary to prevent injury
to the patient or others and prohibits restraint use for
convenience or punishment. (9 CCR Section 784.35.)
Therefore, the policies of the two institutions appear to be
compatible with each other in that pepper spray administered
according to CDC policy would not violate DMH policy.
This bill limits MTA use of pepper spray to inmates housed at
DMH facilities. As such, any policy and procedure DMH would
implement for the use of pepper spray would only authorize use
of pepper spray on inmates. Pepper spray would not be used on
other persons with mental disorders being treated at DMH
facilities and would, therefore, present no conflict with DMH
facilities with regard to those persons.
6)Statement in Opposition : According to the California Network
of Mental Health Clients, "The idea that the use of pepper
spray would be promoted in a mental health facility, even
though a forensic facility, is antithetical to therapeutic,
helpful environment, which is what a mental health institution
should create. We are in an era that encourages understanding
of people with mental disabilities, that urges practitioners
to treat people with mental disabilities with respect and
dignity, expressed in widespread law enforcement training on
successful interactions with people with problems.
"This bill will not discourage anger and rage and violence; it
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will increase it. This bill will ignite a flame for future
violence and distrust of any kind of mental health services."
7)Statement in Support : According to the California
Correctional Peace Officers Association, "MTAs duties include
providing security in these DMH facilities. MTAs, because
they often work alone or in pairs, are particularly vulnerable
to assaults by inmates in the mental health facilities.
Attacks on MTAs are detrimental to both staff members and the
institution. The assaults cause severe injuries to staff and
result in the loss of hundreds of hours of work time. In
addition, the security of the institution is jeopardized when
its employees are under attack."
"When these assaults occur on staff and inmates, MTAs and
correctional officers from the adjacent CDC facility respond
to the incident and are called on to gain control of the
violent inmates. By the time they arrive, quite often serious
injuries and significant damage has already occurred. The
responding MTAs and correctional officers often utilize their
CDC issued OC pepper spray to regain control of the violent
inmate."
"Providing MTAs with OC pepper spray will reduce the number of
assaults and decrease the number of injuries to employees and
the DMH facilities will no longer lose hundreds of hours of
work time. As a result, MTAs and other facility employees and
inmates will be more protected and able to operate in a secure
working environment. In addition, inmates, recognizing MTAs
possess the OC spray for protection, may be deterred from the
assault of facility employees.
CCPOA urges the California State Legislature "to provide MTAs
the tools necessary to protect themselves, other staff and
inmate against the attacks of the violent inmates."
REGISTERED SUPPORT / OPPOSITION :
Support
California Correctional Peace Officers Association (Sponsor)
Opposition
California Network of Mental Health Clients
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Sacramento Consumer Self Help Center
Analysis Prepared by : Danielle Lee / PUB. S. / (916) 319-3744