BILL NUMBER: AB 366 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 11, 2011
INTRODUCED BY Assembly Member Allen
( Principal coauthor: Senator
Blakeslee )
FEBRUARY 14, 2011
An act to add Section 4101.3 to the Welfare and
Institutions Code, relating to mental health. amend
Section 1370 of the Penal Code, relating to defendants.
LEGISLATIVE COUNSEL'S DIGEST
AB 366, as amended, Allen. Mental health: state
hospitals: safety plans. Defendants: involuntary
antipsychotic medication.
Existing law provides that if a defendant becomes mentally
incompetent, a trial or judgment related to that defendant shall be
suspended until he or she becomes mentally competent. Existing law
establishes procedures whereby the court determines the appropriate
facility where an incompetent defendant shall be delivered for
treatment, and determines whether the defendant consents to the
administration of antipsychotic medication, or determines whether
involuntary administration of antipsychotic medication is
appropriate, as specified. Existing law provides that the involuntary
administration of psychotropic medication for inmates under the
jurisdiction of the Department of Corrections and Rehabilitation is
governed by procedures set forth in a permanent injunction, as
specified, which includes a certification process allowing the
involuntary administration of those medications for a 21-day period,
which may be extended after a hearing conducted by an administrative
law judge, as specified.
This bill would, for defendants who are mentally incompetent,
establish a certification procedure similar to that used for inmates,
as described above, and would require a court hearing for the
involuntary administration of antipsychotic medication, as specified.
The bill would authorize a 21-day certification period after an
initial 72-hour emergency period during which time antipsychotic
medication may be administered to those defendants described above.
The bill would require the court to hold a hearing to determine if
the involuntary administration of antipsychotic medication should
continue beyond the 21-day certification period. The bill would
provide that if the court finds that the defendant is gravely
disabled, as defined, the court may order the administration of that
medication for one year. The bill would further provide that if the
court finds that the defendant is a danger to himself or herself, or
to others, as specified, the court may order administration of that
medication for 180 days
Existing law provides for the operation of state hospitals for the
mentally disordered by the State Department of Mental Health.
This bill would require the Director of Mental Health to direct
the superintendent or other person in charge of each state hospital
to create, implement, review, and update a system that includes
measures to ensure the health and safety of both the patient
population and the employees of the facility.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1370 of the Penal
Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
shall proceed, and judgment may be pronounced.
(B) If the defendant is found mentally incompetent, the trial or
judgment shall be suspended until the person becomes mentally
competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, or to any
other available public or private treatment facility approved by the
community program director that will promote the defendant's speedy
restoration to mental competence, or placed on outpatient status as
specified in Section 1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall so
notify the court and defendant in writing. After this notification,
and opportunity for hearing, the court shall order that the defendant
be delivered by the sheriff to a state hospital or other secure
treatment facility for the care and treatment of the mentally
disordered unless the court makes specific findings on the record
that an alternative placement would provide more appropriate
treatment for the defendant and would not pose a danger to the health
and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court must serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be placed
and the district attorney for the county in which the violent felony
charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
confined in a state hospital or other treatment facility or placed on
outpatient status, the court shall proceed as follows:
(A) The court shall order the community program director or a
designee to evaluate the defendant and to submit to the court within
15 judicial days of the order a written recommendation as to whether
the defendant should be required to undergo outpatient treatment, or
committed to a state hospital or to any other treatment facility. No
person shall be admitted to a state hospital or other treatment
facility or placed on outpatient status under this section without
having been evaluated by the community program director or a
designee.
(B) The court shall hear and determine whether the defendant, with
advice of his or her counsel, consents to the administration of
antipsychotic medication, and shall proceed as follows:
(i) If the defendant, with advice of his or her counsel, consents,
the court order of commitment shall include confirmation that
antipsychotic medication may be given to the defendant as prescribed
by a treating psychiatrist pursuant to the defendant's consent. The
commitment order shall also indicate that, if the defendant withdraws
consent for antipsychotic medication, after the treating
psychiatrist complies with the provisions of subparagraph (C), the
defendant shall be returned to court for a hearing in accordance with
this subdivision regarding whether antipsychotic medication shall be
administered involuntarily.
(ii) If the defendant does not consent to the administration of
medication, the court shall hear and determine whether any of the
following is true:
(I) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder requires
medical treatment with antipsychotic medication, and, if the
defendant's mental disorder is not treated with antipsychotic
medication, it is probable that serious harm to the physical or
mental health of the patient will result. Probability of serious harm
to the physical or mental health of the defendant requires evidence
that the defendant is presently suffering adverse effects to his or
her physical or mental health, or the defendant has previously
suffered these effects as a result of a mental disorder and his or
her condition is substantially deteriorating. The fact that a
defendant has a diagnosis of a mental disorder does not alone
establish probability of serious harm to the physical or mental
health of the defendant.
(II) The defendant is a danger to others, in that the defendant
has inflicted, attempted to inflict, or made a serious threat of
inflicting substantial physical harm on another while in custody, or
the defendant had inflicted, attempted to inflict, or made a serious
threat of inflicting substantial physical harm on another that
resulted in his or her being taken into custody, and the defendant
presents, as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm on
others. Demonstrated danger may be based on an assessment of the
defendant's present mental condition, including a consideration of
past behavior of the defendant within six years prior to the time the
defendant last attempted to inflict, inflicted, or threatened to
inflict substantial physical harm on another, and other relevant
evidence.
(III) The people have charged the defendant with a serious crime
against the person or property; involuntary administration of
antipsychotic medication is substantially likely to render the
defendant competent to stand trial; the medication is unlikely to
have side effects that interfere with the defendant's ability to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a reasonable manner; less
intrusive treatments are unlikely to have substantially the same
results; and antipsychotic medication is in the patient's best
medical interest in light of his or her medical condition.
(iii) If the court finds any of the conditions described in clause
(ii) to be true, the court shall issue an order authorizing the
treatment facility to involuntarily administer antipsychotic
medication to the defendant when and as prescribed by the defendant's
treating psychiatrist. The court shall not order involuntary
administration of psychotropic medication under subclause (III) of
clause (ii) unless the court has first found that the defendant does
not meet the criteria for involuntary administration of psychotropic
medication under subclause (I) of clause (ii) and does not meet the
criteria under subclause (II) of clause (ii).
(iv) In all cases, the treating hospital, facility or program may
administer medically appropriate antipsychotic medication prescribed
by a psychiatrist in an emergency as described in subdivision (m) of
Section 5008 of the Welfare and Institutions Code.
(v) Any report made pursuant to paragraph (1) of subdivision (b)
shall include a description of any antipsychotic medication
administered to the defendant and its effects and side effects,
including effects on the defendant's appearance or behavior that
would affect the defendant's ability to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a defense
in a reasonable manner. During the time the defendant is confined in
a state hospital or other treatment facility or placed on outpatient
status, either the defendant or the people may request that the
court review any order made pursuant to this subdivision. The
defendant, to the same extent enjoyed by other patients in the state
hospital or other treatment facility, shall have the right to contact
the Patients' Rights Advocate regarding his or her rights under this
section.
(C) If the defendant consented to antipsychotic medication as
described in clause (i) of subparagraph (B), but subsequently
withdraws his or her consent, or, if involuntary antipsychotic
medication was not ordered pursuant to clause (ii) of subparagraph
(B), and the treating psychiatrist determines that antipsychotic
medication has become medically necessary and appropriate, the
treating psychiatrist shall make efforts to obtain informed consent
from the defendant for antipsychotic medication. If informed consent
is not obtained from the defendant, and the treating psychiatrist is
of the opinion that the defendant lacks capacity to make decisions
regarding antipsychotic medication as specified in subclause (I) of
clause (ii) of subparagraph (B), or that the defendant is a danger to
others as specified in subclause (II) of clause (ii) of subparagraph
(B), the committing court shall be notified of this, including an
assessment of the current mental status of the defendant and the
opinion of the treating psychiatrist that involuntary antipsychotic
medication has become medically necessary and appropriate. The court
shall provide notice to the prosecuting attorney and to the attorney
representing the defendant and shall set a hearing to determine
whether involuntary antipsychotic medication should be ordered in the
manner described in subparagraph (B).
(D) (i) If the treating psychiatrist determines that antipsychotic
medication has become medically necessary and appropriate pursuant
to subparagraph (C), and the person has been medicated for 72 hours
or less, the person may be certified for not more than 21 days of
additional involuntary medication, pursuant to the procedures set
forth in the order granting plaintiff's motion for clarification and
modification of injunction and permanent injunction, in the case of
Keyhea v. Rushen Case No. 67432, filed October 31, 1986, in the
Superior Court of the State of California, in and for the County of
Solano. The treating psychiatrist shall, concurrently with certifying
the person, file a copy of the certification and a petition with the
committing court for issuance of an emergency order to administer
antipsychotic medication beyond the certification period. For
purposes of this subparagraph, the treating psychiatrist shall not be
required to pay or deposit any fee for the filing of the petition or
other document or paper related to the petition.
(ii) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
hearing, no later than 18 days from the date of the certification, to
establish probable cause for grounds to administer antipsychotic
medication beyond the certification period.
(iii) The court shall render its decision on the petition no later
than three days after the hearing, and in any event no later than
the expiration of the 21-day certification period.
(iv) If, as a result of the hearing, the court determines that
probable cause continues to exist for the administration of
antipsychotic medication, based on clear and convincing evidence, the
court may issue an order authorizing the administration of that
medication as follows:
(I) The court finds that the person is gravely disabled, meaning
that as a result of a mental disorder, the person is unable to use
the elements of life essential to health and safety including food,
clothing, and shelter, even though provided to the inmate by others.
The court may order the administration of antipsychotic medication
for a period of one year.
(II) The court finds that the person is a threat to himself or
herself, meaning that as a result of a mental disorder, while in an
inpatient setting, the person has threatened to or attempted to take
his or her own life or has threatened to, attempted to, or inflicted
serious physical injury on himself or herself and continues to
represent an imminent threat of inflicting serious physical injury on
himself or herself. The court may order the administration of
antipsychotic medication for a period of 180 days.
(III) The court finds that the person is a danger to others,
meaning that as a result of a mental disorder, while in an inpatient
setting, the person has threatened to, attempted to, or inflicted
serious physical injury on another and continues to represent an
imminent threat of inflicting serious physical injury on another. The
court may order the administration of antipsychotic medication for a
period of 180 days.
(3) When the court orders that the defendant be confined in a
state hospital or other public or private treatment facility, the
court shall provide copies of the following documents which shall be
taken with the defendant to the state hospital or other treatment
facility where the defendant is to be confined:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) Any arrest reports prepared by the police department or other
law enforcement agency.
(F) Any court-ordered psychiatric examination or evaluation
reports.
(G) The community program director's placement recommendation
report.
(H) Records of any finding of mental incompetence pursuant to this
chapter arising out of a complaint charging a felony offense
specified in Section 290 or any pending Section 1368 proceeding
arising out of a charge of a Section 290 offense.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall select the
hospital in accordance with the policies established by the State
Department of Mental Health.
(6) (A) If the defendant is committed or transferred to a state
hospital pursuant to this section, the court may, upon receiving the
written recommendation of the medical director of the state hospital
and the community program director that the defendant be transferred
to a public or private treatment facility approved by the community
program director, order the defendant transferred to that facility.
If the defendant is committed or transferred to a public or private
treatment facility approved by the community program director, the
court may, upon receiving the written recommendation of the community
program director, transfer the defendant to a state hospital or to
another public or private treatment facility approved by the
community program director. In the event of dismissal of the criminal
charges before the defendant recovers competence, the person shall
be subject to the applicable provisions of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code). Where either the defendant or the
prosecutor chooses to contest either kind of order of transfer, a
petition may be filed in the court for a hearing, which shall be held
if the court determines that sufficient grounds exist. At the
hearing, the prosecuting attorney or the defendant may present
evidence bearing on the order of transfer. The court shall use the
same standards as are used in conducting probation revocation
hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
(B) If the defendant is initially committed to a state hospital or
secure treatment facility pursuant to clause (ii) or (iii) of
subparagraph (B) of paragraph (1) and is subsequently transferred to
any other facility, copies of the documents specified in paragraph
(3) shall be taken with the defendant to each subsequent facility to
which the defendant is transferred. The transferring facility shall
also notify the appropriate law enforcement agency or agencies having
local jurisdiction at the site of the new facility that the
defendant is a person subject to clause (ii) or (iii) of subparagraph
(B) of paragraph (1).
(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the community program director for
the county or region of commitment, or a designee, concerning the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, the outpatient treatment staff
shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, where the defendant is confined
in a treatment facility, the medical director of the hospital or
person in charge of the facility shall report in writing to the court
and the community program director or a designee regarding the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, after the initial 90-day report,
the outpatient treatment staff shall report to the community program
director on the defendant's progress toward recovery, and the
community program director shall report to the court on this matter
at six-month intervals. A copy of these reports shall be provided to
the prosecutor and defense counsel by the court. If the report
indicates that there is no substantial likelihood that the defendant
will regain mental competence in the foreseeable future, the
committing court shall order the defendant to be returned to the
court for proceedings pursuant to paragraph (2) of subdivision (c).
The court shall transmit a copy of its order to the community program
director or a designee.
(2) Any defendant who has been committed or has been on outpatient
status for 18 months and is still hospitalized or on outpatient
status shall be returned to the committing court where a hearing
shall be held pursuant to the procedures set forth in Section 1369.
The court shall transmit a copy of its order to the community program
director or a designee.
(3) If it is determined by the court that no treatment for the
defendant's mental impairment is being conducted, the defendant shall
be returned to the committing court. The court shall transmit a copy
of its order to the community program director or a designee.
(4) At each review by the court specified in this subdivision, the
court shall determine if the security level of housing and treatment
is appropriate and may make an order in accordance with its
determination.
(c) (1) At the end of three years from the date of commitment or a
period of commitment equal to the maximum term of imprisonment
provided by law for the most serious offense charged in the
information, indictment, or misdemeanor complaint, whichever is
shorter, a defendant who has not recovered mental competence shall be
returned to the committing court. The court shall notify the
community program director or a designee of the return and of any
resulting court orders.
(2) Whenever any defendant is returned to the court pursuant to
paragraph (1) or (2) of subdivision (b) or paragraph (1) of this
subdivision and it appears to the court that the defendant is gravely
disabled, as defined in subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall order the conservatorship investigator of the county
of commitment of the defendant to initiate conservatorship
proceedings for the defendant pursuant to Chapter 3 (commencing with
Section 5350) of Part 1 of Division 5 of the Welfare and Institutions
Code. Any hearings required in the conservatorship proceedings shall
be held in the superior court in the county that ordered the
commitment. The court shall transmit a copy of the order directing
initiation of conservatorship proceedings to the community program
director or a designee, the sheriff and the district attorney of the
county in which criminal charges are pending, and the defendant's
counsel of record. The court shall notify the community program
director or a designee, the sheriff and district attorney of the
county in which criminal charges are pending, and the defendant's
counsel of record of the outcome of the conservatorship proceedings.
(3) If a change in placement is proposed for a defendant who is
committed pursuant to subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall provide notice and an opportunity to be heard with
respect to the proposed placement of the defendant to the sheriff and
the district attorney of the county in which criminal charges are
pending.
(4) Where the defendant is confined in a treatment facility, a
copy of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) The criminal action remains subject to dismissal pursuant to
Section 1385. If the criminal action is dismissed, the court shall
transmit a copy of the order of dismissal to the community program
director or a designee.
(e) If the criminal charge against the defendant is dismissed, the
defendant shall be released from any commitment ordered under this
section, but without prejudice to the initiation of any proceedings
that may be appropriate under the Lanterman-Petris-Short Act, Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code.
(f) As used in this chapter, "community program director" means
the person, agency, or entity designated by the State Department of
Mental Health pursuant to Section 1605 of this code and Section 4360
of the Welfare and Institutions Code.
(g) For the purpose of this section, "secure treatment facility"
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, any
facility licensed pursuant to Chapter 2 (commencing with Section
1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2
(commencing with Section 1569) of, Division 2 of the Health and
Safety Code, or any community board and care facility.
SECTION 1. Section 4101.3 is added to the
Welfare and Institutions Code, to read:
4101.3. Consistent with the authority of the department to
operate and maintain state hospitals under its jurisdiction, the
Director of Mental Health shall direct the superintendent or other
person in charge of each state hospital to create, implement, review,
and update a system that includes measures to ensure the health and
safety of both the patient population and the employees of the
facility.