BILL ANALYSIS Ó AB 366 Page 1 ASSEMBLY THIRD READING AB 366 (Allen and Achadjian) As Amended April 25, 2011 Majority vote PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0 ----------------------------------------------------------------- |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 | ----------------------------------------------------------------- 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 AB 366 Page 2 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 AB 366 Page 3 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 AB 366 Page 4 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, AB 366 Page 5 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, AB 366 Page 6 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 AB 366 Page 7 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 FN: 0000892