BILL ANALYSIS                                                                                                                                                                                                    Ó



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         ASSEMBLY THIRD READING
         AB 366 (Allen and Achadjian)
         As Amended  April 25, 2011
         Majority vote 

          PUBLIC SAFETY       7-0         APPROPRIATIONS      17-0         
          
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         |Ayes:|Ammiano, Knight, Cedillo, |Ayes:|Fuentes, Harkey,          |
         |     |Hagman, Hill, Mitchell,   |     |Blumenfield, Bradford,    |
         |     |Skinner                   |     |Charles Calderon, Campos, |
         |     |                          |     |Davis, Donnelly, Gatto,   |
         |     |                          |     |Hall, Hill, Lara,         |
         |     |                          |     |Mitchell, Nielsen, Norby, |
         |     |                          |     |Solorio, Wagner           |
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          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 








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              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 
           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 








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              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.  

          FISCAL EFFECT  :  According to the Assembly Appropriations 
         Committee:

         1)Moderate annual General Fund costs to the Department of Mental 
           Health, 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 
           patient-on-staff incidents.  In 2009 and 2010 combined, DMH 
           reported 266 patient-on-staff assaults at Napa.  

          COMMENTS  :   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 








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         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 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, 








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         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 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, 








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         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 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 








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         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."

         Please see the policy committee for a full discussion of this 
         bill.
          

         Analysis Prepared by :    Milena Nelson / PUB. S. / (916) 319-3744 


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