BILL ANALYSIS Ó
AB 366
Page 1
Date of Hearing: May 3, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 366 (Allen) - As Amended: April 25, 2011
SUMMARY : Modifies the process by which individuals who are
declared incompetent to stand trial can be involuntarily
medicated. Specifically, this bill :
1)States when a court finds a defendant incompetent to stand
trial, the court shall also determine if the defendant lacks
capacity to make decisions regarding antipsychotic
medications.
a) If the court finds that the defendant has capacity to
make decisions regarding antipsychotic medications, and if
the defendant, with advice of his or her counsel, consents
to the medication, 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.
b) If the court finds that the defendant has capacity to
make decisions regarding antipsychotic medications, and the
defendant does not consent, or the court determines that
the defendant does not have capacity to make decisions
regarding antipsychotic medication, the court shall hear
and determine if the defendant is not medicated with
antipsychotic medications, it is probable that the
defendant will cause harm to his or her physical or mental
health, the defendant is a danger to others, or the
defendant is charged with a violent felony, as specified.
If the court finds any of the above to be true, the court
shall issue an involuntary medication order to be included
in the commitment order.
2)States that if a defendant who consented to antipsychotic
medications revokes his or her consent, and the treating
psychiatrist determines that antipsychotic medications have
become medically necessary and appropriate, and it is probable
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that the defendant will cause harm to his or her physical or
mental health or the defendant is a danger to others, the
psychiatrist shall certify that the above conditions exist.
3)States that if a defendant whose commitment order did not
include an involuntary medication order, and the treating
psychiatrist determines that antipsychotic medications have
become medically necessary and appropriate, and it is probable
that the defendant will cause harm to his or her physical or
mental health or the defendant is a danger to others, the
psychiatrist shall certify that the above conditions exist.
Before making the certification, the psychiatrist shall
attempt to obtain informed consent from the defendant.
4)States that if the treating psychiatrist certifies that
antipsychotic medication has become medically necessary, and
the defendant either revoke his or her consent, or whose
commitment papers did not include an involuntary medication
order, antipsychotic medications may be administered to the
defendant for not more than 21 days.
a) Within 72 hours of the certification, a two-person panel
comprised of a psychiatrist not involved in the defendant's
treatment and a patient representative shall review the
treating psychiatrist's certification. If both panelists
concur with the certification, involuntary administration
of antipsychotic medications may continue for the remainder
of the 21 days.
b) The treating psychiatrist shall file a copy of the
certification and a petition for the issuance of an order
for involuntary medication beyond the 21 day period with
the court. The court is required to hold the hearing
within 18 days of the certification, and shall provide
notice to the prosecuting attorney and the attorney for the
defendant. If as a result of the hearing, the court finds
that antipsychotic medication should be administered beyond
the 21 day period, the court shall issue an order
authorizing the administration of that medication. The
order shall be within three calendar days from the hearing,
and in no case be beyond the 21 day certification period.
EXISTING LAW :
1)States that a person cannot be tried or adjudged to punishment
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while that person is mentally incompetent. ÝPenal Code
Section 1367(a).]
2)Defines "mental competency" as an individual who, as a result
of mental disorder or developmental disability, is unable to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.
ÝPenal Code Section 1367(a).]
3)States that if during the pendency of an action and prior to
judgment, a doubt arises in the mind of the judge as to the
mental competence of the defendant, he or she shall state that
doubt on the record and inquire of the attorney for the
defendant whether, in the opinion of that attorney, the
defendant is mentally competent. At the request of the
defendant or his or her counsel, the court shall recess the
proceeding for as long as may be reasonably necessary to
permit counsel to confer with the defendant and to form an
opinion as to the mental competence of the defendant. ÝPenal
Code Section 1368(a).]
4)States that the trial to determine mental competency shall
proceed as follows (Penal Code Section 1369):
a) The court shall appoint a psychiatrist or licensed
psychologist to examine the defendant. If the defendant is
not seeking a finding of mental incompetence, the court
shall appoint two psychiatrists or licensed psychologists.
The examining psychiatrist or licensed psychologist shall
evaluate the nature of the defendant's mental disorder, if
any; the defendant's ability or inability to understand the
nature of the criminal proceedings or assist counsel in the
conduct of a defense in a rational manner; and whether or
not treatment with antipsychotic medications is medically
appropriate for the defendant and whether antipsychotic
medication is likely to restore the defendant to
competency.
b) The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence.
c) The prosecution shall present its case regarding the
issue of the defendant's present mental competence.
d) Each party may present rebutting testimony, unless the
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court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention.
5)States that 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. ÝPenal
Code Section 1370(a)(1)(A).]
6)States that if the defendant is found mentally incompetent,
the trail or judgment shall be suspended until the person
becomes mentally competent. ÝPenal Code Section
1370(a)(1)(B).]
7)States that if the offense for which the defendant was charged
and found to be mentally incompetent to stand trial is a
felony described in Penal Code section 290, the prosecutor
shall determine of the defendant had previously been found to
be incompetent to stand trial for an offense listed in section
290, or is pending such a hearing. If so, the prosecutor
shall notify the court and the defendant in writing, and 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. ÝPenal Code Section 1370(a)(1)(B)(ii).]
8)States that if the offense for which the defendant was charged
and found to be mentally incompetent to stand trial is a
felony described in Penal Code section 290 and the defendant
has been denied bail 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. ÝPenal
Code Section 1370(a)(1)(B)(iii).]
9)States that a defendant charged with a violent felony, as
specified, may not be delivered to a state hospital or
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treatment facility unless that hospital or facility has a
secured perimeter or a locked and controlled treatment
facility, and the judge determines that the public safety will
be protected. ÝPenal Code Section 1370(a)(1)(D).]
10)States that prior to making the order directing that the
defendant be confined in a state hospital or other treatment
facility, the court hear and determine whether the defendant,
with advice of his or her counsel, consents to the
administration of antipsychotic medications ÝPenal Code
Section 1370(a)(2)(B)]:
a) 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.
b) 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
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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.
c) If the court finds the above to the 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.
11)States that if the defendant consented to antipsychotic
medication, but subsequently withdraws his or her consent, or,
if involuntary antipsychotic medication was not ordered at the
time of finding the defendant incompetent to stand trial, 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, or that the defendant is a danger to
others, as specified, 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
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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 as
specified. ÝPenal Code Section 1370(a)(2)(C)]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 366 makes
state hospitals safer for patients and staff by improving the
current involuntary medication process to eliminate any
significant gap in the necessary treatment for patients deemed
incompetent to stand trial (IST) and committed to a state
hospital (Penal Code 1370) who have demonstrated that they are
a danger to themselves or others. Specifically, AB 366 does
the following:
"ÝFirst, r]equires a judge to determine if the defendant lacks
the capacity to make decisions regarding antipsychotic
medication in the initial trial where the defendant is deemed
incompetent to stand trial and consented to the administration
of antipsychotic drugs. The problem with existing law is that
a defendant, at the advice of counsel, may consent to the
administration of antipsychotic drugs yet may not be competent
to make that decision. Therefore, the state hospital may
receive a defendant who has initially consented to
antipsychotic medication yet does not have the capacity to
make that decision. As a result, the defendant may
subsequently withdraw that consent and even though they
clearly do not have the capacity to make that decision, the
state hospital must obtain a new court order authorizing the
medication using the existing standard that the defendant
lacks the capacity to make decisions regarding antipsychotic
medication.
"Rather than allowing a defendant to consent to a court order
that they don't have the capacity to consent to, the court
should establish that capacity up front rather than having to
immediately send the defendant back to court to get the order.
This would not eliminate any due process rights of the
defendant and would save precious time and resources of our
courts and state hospital systems. In addition, it would
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ensure that defendants are not left untreated and allowed to
mentally deteriorate while awaiting the new court order.
"ÝSecond, c]reates an independent internal process to provide
temporary involuntary medication if the defendant withdraws
their consent to be medicated after admittance to the hospital
until a court decides whether the defendant should be
medicated which must occur within 21 days from the start of
the involuntary medication. The internal process for
temporary involuntary medication would only be permissible if
the hospital follows the procedures that protect independent
medical decision-making and due process rights as provided for
in various U.S. Supreme Court decisions, most notably,
Washington v. Harper.
"The problem with existing law is that when defendants withdraw
their consent to be medicated, a new court order for
medication may take weeks and sometimes months. For most
patients, the lack of medication causes further deterioration
of their mental disease making it harder to restore the
defendant to competency, sometimes to the point where they may
never be restored to competency. Additionally, patients who
are not only a danger to themselves, but a danger to others,
compromise the recovery of other patients and create a very
dangerous environment putting the lives of all patients and
staff at risk.
"By providing a temporary process for involuntary medication,
one that is upheld by the U.S. Supreme Court, patients in need
of medication will no longer go untreated and patients will be
restored to competency so that they can stand trial.
Additionally, by establishing a timeline for when the
committing court must hear and decide on the request for
long-term medication, the existing standard for long-term
involuntary medication is upheld while the courts are provided
a firm but reasonable time limit to make a decision. Most
importantly, eliminating the gap in treatment will greatly
improve patient recovery as well as greatly improve the safety
for all patients and staff.
"Recent reports by the Los Angeles Times, New York Times, and
other papers highlighted by the recent tragic death of an
employee just last October at Napa State Hospital and the
brutal beating of another employee just six week later at the
same facility, have highlighted the inherent danger for both
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patients and staff at our state hospitals. Data provided by
the Department of Mental Health at the request of various
media outlet as well as the Select Committee on State Hospital
Safety have also helped document the increasingly unsafe
conditions.
"For example a study performed jointly by the University of
California, Davis and Napa State Hospital showed that in 2010
there were over 8,300 incidents at the five state hospitals
where an aggressor was identified. In approximately 6,700 of
these incidents, a victim was identified. Out of these
incidents, there were over 5,100 injuries, over 1,000 of them
staff injuries including one death. These numbers amounts 23
aggressive acts per day, 18 victims per day, 14 injuries per
day, and 3 staff injuries per day. The Los Angeles Times also
recently reported that the number of attacks doubled in the
second quarter of 2010 compared to 2009 and that patient on
patient attacks increased six-fold.
"There is little debate that the primary cause in the increase
in violent incidents is due to the increasing forensic
population combined with facilities and safety infrastructure
that were not designed or maintained for this patient
population. For example, Napa State Hospital currently houses
a forensic population around 85 percent whereas 15 years ago
the forensic population hovered around 20 percent. As of
December 31, 2010 most of the 9,061 patients at the five state
hospitals were forensic commitments. About 10 percent, or
roughly 900 of the patients at the five hospitals are Penal
Code 1370 commitments or those deemed incompetent to stand
trial - the population that AB 366 attempts to address.
"Addressing the treatment gap for PC1370 commitments will have
profound effects. For example, a Department of Mental Health
Quality Control analysis that examined PC 1370 commitments
from January 31, 2010 to December 22, 2010 found that
individuals who consent to take medications but who are not
ordered to do so are more aggressive and take longer to
recover. This is because those without a court order can
refuse medication, even if they are not competent to make that
decision, causing medication and treatment to be inconsistent
and therefore much less effective. Addressing this issue
prior to commitment through a determination of competency when
the patient initially consents as proposed in AB 366 will
significantly reduce violent incidents and improve patient
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recovery as well as improve the safety of patients and
workers.
"Creating a safer environment will also have significant
financial benefits. Since the 2003-04 fiscal year, overtime
expenditures from the five state hospitals and the two state
psychiatric facilities went from $40 million to $101 million.
The mandatory staffing ratios during the recent furloughs from
2008 to 2010 contributed to this increase as did the addition
of Coalinga State Hospital in 2005. However, the spike in
overtime is also attributed to the time missed due to workers'
compensation claims which have increased sharply over this
same timeframe. At Napa State Hospital there were 396 staff
injuries in 2009 resulting in 278 workers' compensation claims
and 9,473 missed work days and in 2010 there were 384 staff
injuries resulting in 289 workers' compensation claims and
10,724 missed work days. While it is difficult to determine
exactly how much the state will save if the treatment gap is
fixed as proposed in AB 366, the workers' compensation savings
will certainly be in the millions of dollars.
"Leaving patients untreated is bad for the patient in need of
treatment, damaging to the other patients receiving treatment,
and puts the lives of all patients and staff at risk. It is
unconscionable to leave some patients untreated for months
while they deteriorate in our state hospitals. AB 366
proposed minor changes in our system that will provide
significant safety improvements that patients, patient
families, and workers expect and deserve."
2)Involuntary Medication of Defendants Incompetent to Stand
Trial : In Sell v. United States (2003) 539 U.S. 166, the
United States Supreme Court set standards for the
administration, without consent, of antipsychotic medication
to a person charged with a crime who is incompetent to stand
trial. The applicable principles and requirements set out in
Sell include a person charged with a crime (and any other
person) has a constitutionally protected liberty interest in
refusing involuntary administration of antipsychotic
medication for the purpose of rendering him or her competent
to stand trial. The state can overcome that interest under
the certain instances. "Those instances may be rare" where
the state seeks to render a defendant competent to stand
trial. (Id. at 2185.) (It should be noted that the state may
involuntary administer antipsychotic medication where the
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person is a danger to self or others or in other limited
circumstances.) Related to issues presented by this bill,
forced antipsychotic medication is appropriate in order to
bring a defendant to trial where:
a) The state has an important governmental interest in
restoring the person to competency in that the defendant is
charged with a serious crime against persons or property.
b) The treatment with antipsychotic medication is medically
appropriate.
c) The medication is unlikely to have side effects that may
undermine the fairness of trial.
d) Forced medication, taking into account less intrusive
alternative measures, is "necessary significantly to
further important trial related interests."
3)Related Legislation : AB 1114 (Lowenthal) modifies the process
by which an inmate of the California Department of Corrections
and Rehabilitation may be administered psychotropic
medications without his or her consent. AB 1114 is pending
hearing by the Assembly Judiciary Committee.
4)Previous Legislation : SB 1794 (Perata), Chapter 486, Statutes
of 2004, established standards for administering antipsychotic
medication to persons found incompetent to stand trial.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal
Employees Local 2620
California Association of Psychiatric Technicians
California Statewide Law Enforcement Association
Opposition
None
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744
AB 366
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