BILL ANALYSIS Ó
AB 366
Page 1
Date of Hearing: May 18, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 366 (Allen) - As Amended: April 25, 2011
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill modifies the process by which individuals who are
declared incompetent to stand trial (IST) can be medicated in
state hospitals. Specifically, this bill:
1)States, when a court finds a defendant IST, the court shall
also determine if the defendant lacks capacity to make
decisions regarding antipsychotic medications. (Currently the
court only determines whether the defendant consents to
antipsychotic medication.)
a) If the court finds the defendant has capacity to make
decisions regarding medication, and the defendant consents
to medication, the commitment order shall include
confirmation that medication may be administered as
prescribed by a psychiatrist, consistent with current law
and practice.
b) If the court finds the defendant has capacity to make
decisions regarding medications, and the defendant does not
consent, or the court determines the defendant does not
have capacity to make decisions regarding medication, the
court shall hear and determine whether, if the defendant is
not medicated, it is probable the defendant will cause harm
to self or others. If the court finds that harm may ensue,
the court shall issue an involuntary medication order to be
included in the commitment order, consistent with current
law and practice.
2)Provides that if the treating psychiatrist certifies that
medication has become medically necessary, and the defendant
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revokes consent, or was not committed with an involuntary
medication order, antipsychotic medication 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 the panelists
concur, involuntary medications may continue for the
remainder of the 21 days.
b) Concurrently, the treating psychiatrist must file with
the court a copy of the certification and a petition for an
order for involuntary medication beyond the 21-day period.
The court must hold a hearing within 18 days of the
certification. If as a result of the hearing, the court
finds medication should be administered beyond the 21-day
period, the court shall issue an order so authorizing.
The order shall be within three calendar days from the
hearing, no later than the expiration of the 21-day period.
FISCAL EFFECT
1)Moderate annual GF costs to DMH, likely in the range of
$125,000, primarily for the two-person involuntary medication
panels. Assuming about 2,000 annual IST commitments, if half
of the commitments do not have involuntary medication orders,
and 15% of them refuse medication, that would result in about
150 two-person panels.
2)Unknown, potentially significant state trial court costs,
likely in the hundreds of thousands of dollars, to the extent
the court complies with holding a hearing within 18 days of
the treating psychiatrist's certification that the patient
needs involuntary medication.
3)Annual savings, potentially in excess of $1 million, to the
extent the proposed changes reduce violent patient-on-staff
incidents that result in significant amounts of overtime to
backup injured staff, as well as disability payments.
For example, based on DMH data, workers compensation claims at
Napa State Hospital alone in 2009 and 2010 resulted in more
than 20,000 missed work days, many of which are attributed to
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patient-on-staff incidents. In 2009 and 2010 combined, DMH
reported 266 patient-on-staff assaults at Napa.
COMMENTS
1)Rationale . The author's intent is to make state hospitals
safer for patients and staff by improving the involuntary
medication process to eliminate treatment gaps for IST
patients who demonstrate they are a danger to self or others.
To this end the author proposes (a) requiring the court to
establish patient capacity at commitment and (b) a more
expeditious process for involuntary medication when a patient
revokes consent.
P
According to the author, "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
ensure that defendants are not left untreated and allowed to
mentally deteriorate while awaiting the new court order."
Referencing the expedited temporary involuntary medication
authority, the author states, "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
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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."
2)Support . AFSCME, which represents many of the state hospital
staff, is a sponsor of this bill and states, AB 366 is crucial
to the reform of the state's handling of its mentally ill
defendants. The provisions in this bill will ensure that
neither the public safety nor the defendant's rights are
compromised.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081