BILL ANALYSIS Ó
AB 366 (Allen)
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SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 366 (Allen)
As Amended June 28, 2011
Hearing date: July 5, 2011
Penal Code
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PERSONS FOUND INCOMPETENT TO STAND TRIAL:
INVOLUNTARY ADMINISTRATION OF DRUGS
HISTORY
Source: Union of American Physicians and Dentists and American
Federation of State County and Municipal Employees
Prior Legislation: SB 1794 (Perata) - Ch. 486, Stats. 2004
Support:Service Employees International Union; California
Association of Psychiatric Technicians; California
State Law Enforcement Association
Opposition:Disability Rights California (unless amended);
National Alliance for the Mentally Ill (prior version
of the bill)
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
IN EVERY PROCEEDING TO DETERMINE WHETHER A DEFENDANT IS MENTALLY
INCOMPETENT TO STAND TRIAL ("IST"), SHOULD THE COURT BE REQUIRED
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TO FIND WHETHER OR NOT THE DEFENDANT HAS CAPACITY TO MAKE
DECISIONS CONCERNING MEDICATION?
(CONTINUED)
WHERE A DEFENDANT CONSENTS TO ANTI-PSYCHOTIC MEDICATION BUT THEN
WITHDRAWS CONSENT WHILE IN TREATMENT, SHOULD THERE BE AN
ADMINISTRATIVE CERTIFICATION PROCESS TO DETERMINE IF THERE ARE
GROUNDS TO INVOLUNTARILY MEDICATE THE DEFENDANT UNTIL A COURT
HEARING IS HELD ON THE ISSUE WITHIN 21 DAYS?
WHERE AN IST DEFENDANT DID NOT CONSENT TO MEDICATIONS, AND THE COURT
DID NOT ORDER INVOLUNTARY ADMINISTRATION OF MEDICATION, SHOULD THERE
BE AN ADMINISTRATIVE CERTIFICATION PROCESS DURING TREATMENT TO
DETERMINE IF THERE ARE GROUNDS TO INVOLUNTARILY MEDICATE THE
DEFENDANT UNTIL A COURT HEARING IS HELD ON THE ISSUE WITHIN 21 DAYS?
SHOULD THE CERTIFICATION PROCESS FOR AUTHORIZING INVOLUNTARY
MEDICATION DURING TREATMENT INCLUDE THE RIGHT TO A HEARING BEFORE AN
ADMINISTRATIVE LAW JUDGE, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) provide that where a court
finds a defendant incompetent to stand trial (IST), the court
shall determine if the defendant has the capacity to make
decisions concerning medication; 2) provide that where the
defendant consents to take medication and then withdraws
consent during treatment, the Department of Mental Health (DMH)
may conduct a certification process to determine if there are
grounds to involuntarily medicate the defendant until a court
hearing is held within 21 days; 3) provide that where an IST
defendant does not consent to take medication and the court
does not authorize involuntary medication, DMH may also conduct
an involuntary medication certification process pending a court
hearing within 21 days; and 4) grant the defendant a right to
hearing before an administrative law judge as part of the
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certification process.
Existing law states that a person cannot be tried or adjudged to
punishment while that person is mentally incompetent (IST -
incompetent to stand trial). (Pen. Code Section 1367, subd.
(a).)
Existing law provides that a defendant is incompetent to stand
trial (IST) where, as a result of mental disorder or
developmental disability, the defendant is unable to understand
the nature of the criminal proceedings or to assist counsel in
the conduct of a defense in a rational manner. (Pen. Code §
1367, subd. (a).)
Existing law states that if the court has a doubt as to whether
or not a defendant is IST, the court shall state that doubt on
the record and shall seek defense counsel's opinion as to the
defendant's competence. Upon request, the court shall recess
the matter and permit counsel to confer with the defendant on
the issue. (Pen. Code § 1368, subd. (a).
Existing law states that the trial to determine mental
competency shall proceed as follows (Penal Code § 1369):
The court shall appoint a psychiatrist or psychologist
to examine the defendant. If the defendant is not seeking
a finding of mental incompetence, the court shall appoint
two psychiatrists or psychologists. The examining expert
shall evaluate the nature of the defendant's mental
disorder; his or her ability to understand the proceedings
or assist counsel in the conduct of a defense; and whether
or not treatment with medications is medically appropriate
and likely to restore the defendant to competency.
The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence.
The prosecution shall present its case regarding the
issue of the defendant's present mental competence.
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Each party may present rebutting testimony, unless the
court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention.
Existing law states that if the defendant is found mentally
competent, the criminal process shall resume. (Pen. Code §
1370, subd. (a)(1)(A).)
Existing law states that if the defendant is found IST, the
matter shall be suspended until the person becomes mentally
competent. (Pen. Code § 1370, subd. (a)(1)(B).)
Existing law states that a defendant charged with a violent
felony, as specified, may not be delivered to a state hospital
or 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. (Pen. Code § 1370, subd. (a)(1)(D).)
Existing law states that prior committing an IST defendant for
treatment, the court shall determine whether the defendant
consents to the administration of medications (Pen. Code § 1370,
subd. (a)(2)(B).)
If the defendant consents, the commitment order shall
confirm that medication may be given to the defendant.
If the defendant does not consent to the administration
of medication, the court shall hear and determine whether
any of the following is true:
o The defendant lacks capacity to make decisions
regarding medication, the defendant's mental disorder
requires treatment with medication, and, if the
defendant's mental disorder is not so treated, it is
probable that serious harm to the physical or mental
health of the patient will result. Probability of
serious harm is shown by evidence that the defendant is
presently suffering adverse effects to his or her
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physical or mental health, or has previously suffered
these effects as a result of a mental disorder and his or
her condition is substantially deteriorating.
o The defendant is a danger to others, in that the he
or she has inflicted, attempted to inflict, or made a
serious threat of inflicting substantial physical on
another while in custody, or the defendant had inflicted,
attempted to inflict, or made a serious threat of
inflicting such harm on another, for which the defendant
was taken into custody, and he or she presents, as a
result of mental disorder or mental defect, a
demonstrated danger of inflicting such harm on others.
Demonstrated danger may be based on the defendant's
present mental condition, including a consideration of
behavior within six years of the time the defendant
attempted to inflict, inflicted, or threatened to inflict
substantial physical harm on another, and other relevant
evidence.
o The defendant has been charged with a serious crime
against a person or property; involuntary administration
of anti-psychotic medication is substantially likely to
render the defendant competent; the medication is
unlikely to have side effects that interfere with the
defendant's ability to understand the criminal
proceedings or to assist counsel in the conduct of a
defense; less intrusive treatments are unlikely to have
substantially the same results; and anti-psychotic
medication is in the patient's best medical interest in
light of his or her medical condition. (Pen. Code §
1370, subd. (a)(2)(B)(ii)(I)-(III).)
If the court finds any of these grounds to be true, the
court shall authorize the treatment facility to
involuntarily administer anti-psychotic medication to the
defendant when and as prescribed by the defendant's
treating psychiatrist. (Pen. Code § 1370, subd.
(a)(2)(B)(iii).)
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Existing law states that if the defendant consents to
anti-psychotic medication, but later withdraws consent, or, if
involuntary medication was not ordered at the time the court
found the defendant IST, and the treating psychiatrist
determines that medication has become medically necessary and
appropriate, the psychiatrist shall seek informed consent for
use of the medication. If the defendant does not consent and the
psychiatrist opines that the defendant lacks capacity to make
decisions regarding anti-psychotic medication, or that the
defendant is a danger to others, the court shall be notified.
Notice shall include an assessment of the defendant's current
mental status and the psychiatrist's opinion that involuntary
medication has become medically necessary and appropriate. The
court shall notify the prosecutor and defense counsel and set a
hearing to determine whether involuntary anti-psychotic
medication should be ordered. (Pen. Code § 1370, subd.
(a)(2)(C).)
This bill states when a court finds a defendant IST, the court
shall also determine if he or she has capacity to make decisions
regarding anti-psychotic medications.
This bill provides that if the defendant in the original court
proceeding consents to take anti-psychotic medications, but then
revokes consent during treatment, DMH is authorized to conduct
an administrative process, including a hearing conducted by an
administrative law judge (ALJ), to determine if the defendant
should be involuntarily medicated.
This bill provides that if the defendant in the original court
proceeding did not consent to take anti-psychotic medications
and the court did not order involuntary medication, DMH is
authorized to conduct an administrative certification process,
including a hearing conducted by an ALJ, to determine if the
defendant should be involuntarily medicated.
This bill provides that if the ALJ determines that the defendant
may be involuntarily medicated because the defendant either 1)
lacks capacity and could suffer serious mental or physical harm,
or 2) is a danger to self or others, the defendant may be
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medicated until a superior court hearing is held within 21 day.
This bill provides that certification and certification hearing
shall include the following:
The treating psychiatrist shall certify that
anti-psychotic medication has become medically necessary
and appropriate.
Defendant shall be granted a hearing by an ALJ within 72
hours.
Defendant shall be represented by a patient's rights
advocate and have access to records.
The advocate or attorney shall be appointed and allowed
to meet with the defendant to prepare for the hearing.
Defendant shall have a right to attend hearing, present
evidence and question witnesses who support the involuntary
medication order.
Defendant's reasonable requests for witnesses shall be
granted.
Judicial review and counsel shall be provided.
This bill provides that if the ALJ's order authorizing
involuntary medication is valid for no more than 18 days
following the hearing.<1>
This bill provides that the treating psychiatrist shall file a
copy of the involuntary medication order by the ALJ and a
petition for a court order for involuntary medication. The
court shall hear the matter within 18 days of the ALJ
certification.
This bill provides that if the ALJ disagrees with the DMH
certification, involuntary medication may not be administered
unless and until the superior court orders involuntary
administration.
This bill provides that the court shall give notice of he
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<1> Including the 72 hours prior to the hearing by the ALJ,
involuntary medication can be given for no more than 21 days
before a court hearing.
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hearing to the prosecutor and defense counsel. If the court
finds that anti-psychotic medication should be administered
beyond the 21-day period, the court shall issue an order for
involuntary administration of the medication. The order shall
be made within three calendar days of the hearing, and in no
case be beyond the 21 day certification period.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
AB 366 makes state hospitals safer for patients and
staff by improving the current involuntary medication
process. Specifically, AB 366 does the following:
The bill requires the judge in the competency trial to
determine if the defendant who consents to treatment
with anti-psychotic drugs has the capacity to make
such a decision. Under existing law, a defendant may
ostensibly consent to anti-psychotic medication, yet
not have capacity to make that decision. Where the
defendant later withdraws consent, DMH must obtain a
court order for involuntary administration of the
medication based on the patient's lack of capacity to
make medication decisions and other grounds justifying
involuntary medication. Determination of capacity
should be made in the initial proceeding.
Determining capacity at that point will reduce
violence and improve treatment outcomes. The current
process for defendants who lack medical capacity is
inefficient, harmful to patients and dangerous.
The bill creates a certification and hearing process
at the hospital for temporary involuntary medication
if the defendant withdraws consent. The medication
would continue until a court, within 21 days, decides
whether the IST patient should be medicated. The
process complies with U.S. Supreme Court decisions on
the due process rights of forensic patients. Under
existing law, when an IST patient withdraw consent to
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be medicated, a new court order for medication can
take weeks or months. Most patients deteriorate
during this delay and some cannot be restored to
competency.
The Los Angeles Times, New York Times and other media
have reported on the dangerous conditions in DMH
hospitals, including the October, 2010 homicide of an
Napa employee and the brutal beating of another
employee six week later. A study by UC Davis and Napa
State Hospital showed that in 2010 over 8,300
aggressive incidents produced 6,700 victims and 5,100
injuries, including more than 1,000 staff injuries and
one death. That means 23 aggressive acts, 18 victims,
14 injuries and 3 staff injuries per day. The Los
Angeles Times has 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 primary cause of the escalating violence is the
increase proportion of forensic patients in facilities
that were not intended for this population. The
forensic population at Napa is around 85 percent,
while just 15 years ago it was 20 percent. At the
end of 2010 most of the 9,061 patients in state
hospitals were forensic commitments. About 10
percent, or roughly 900, are IST - the population that
AB 366 addresses.
Safer state hospitals will also reduce costs. Since
the 2003-04 fiscal year, overtime costs at state
hospitals and psychiatric facilities went from $40
million to $101 million. Furloughs contributed to the
increase, as did the 2005 addition of Coalinga State
Hospital. However, the overtime spike also flows from
absences due to staff injuries. At Napa in 2009 there
were 396 staff injuries resulting in 278 workers'
compensation claims and 9,473 missed work-days. In
2010 there were 384 staff injuries resulting in 289
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workers' compensation claims and 10,724 missed
work-days. While exact savings from AB 366 cannot be
calculated, workers' compensation savings will be in
the millions of dollars.
It is unconscionable to leave patients untreated for
months while they deteriorate. AB 366 proposes minor
changes in our system that will provide critical
safety improvements for patients, patient families,
and workers.
2. United States Supreme Court Decision Setting Constitutional
Requirements in Cases of Involuntary Administration of
Anti-psychotic Medication to Prison Inmates
In Washington v. Harper (1990) 494 U.S. 210, the U.S. Supreme
Court held that involuntary administration of anti-psychotic
medication to a prison inmate must comply with Fourteenth
Amendment due process, including the following: 1) If a
psychiatrist determines that the inmate needs anti-psychotic
medication, but the inmate does not consent, the state may
involuntary medicate the inmate only if he or she has a mental
disorder, and is gravely disabled or poses a danger to self or
others. 2) The inmate is entitled to a hearing before a
committee of health professionals not involved in his or her
treatment to determine if the required ground for involuntary
medication exist. 3) The inmate is entitled to an explanation
of why the medication is necessary. 4) The inmate is entitled
to present evidence and cross-examine staff witnesses and the
assistance of a knowledgeable lay advisor who has not been
involved in the inmate's case. (Ibid.) Fourth, there must be
periodic review of the order. (Id., at pp. 215-216.)
3. Sell v. United States - 2003 United States Supreme Court Case
on Involuntary Medication of IST Defendants
Sell concerned Charles Sell, a former practicing dentist with a
long history of mental illness. Sell was initially charged with
insurance fraud, found to be competent and released on bail.
Bail was revoked when Sell threatened a witness. He was then
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charged with two attempted murders. Sell moved for
reconsideration of the finding that he was competent to stand
trial. After evaluation, he was found IST. After two months
he refused anti-psychotic medication. Hospital staff sought
judicial authorization to involuntarily administer medication.
It appears that Sell, unlike many mentally ill defendants, had
capacity to make medical decisions. The court found that Sell
was not currently dangerous. Thus, he could not have been
involuntarily medicated on that basis.
General principles from Sell as to involuntary treatment with
anti-psychotic medication of a criminal defendant (not limited
to restoring competence for trial)
A person has a constitutionally protected interest in avoiding
involuntary administration of medication.
Only an essential or overriding state interest can overcome
the person's liberty interest.
State satisfies due process if that treatment with
anti-psychotic medication was medically appropriate and,
considering less intrusive alternatives, essential for the
sake of the person's own safety or the safety of others.
Sell Principles Adapted to California Law
SB 1794 (Perata) in 2004 adapted the Sell standards to the
California IST law. Involuntary administration of
anti-psychotic medication to IST defendants is allowed as
follows: circumstances:
The defendant is a danger to self or others.
The defendant is gravely disabled.
The defendant faces trial for a serious offense against
a person or property. (Health & Saf. Code §1370, subd.
(a)(2)(B)(ii)(I)-(III).)
For each of these grounds, the court must also find that the
medication is necessary and appropriate and that less intrusive
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means or treatment are not effective. Where the medication is
given to render a person competent for trial on a serious
offense, the court must find that the medication is unlikely to
have side effects that would interfere with the defendant's
ability to understand the criminal proceedings and assist
counsel. (Health & Saf. Code §1370, subd. (a)(2)(B)(ii)(III).)
4. CRIPA (Constitutional Rights of Institutionalized Persons Act)
- U.S. Department of Justice (DOJ) Consent Decree and
Monitoring of all DMH Hospitals except Coalinga
This bill arises in the context of ongoing litigation by the
U.S. Department of Justice concerning the federal Constitutional
Rights of Institutionalized Persons Act (CRIPA). The federal
court is monitoring treatment of patients in DMH. It appears
that DMH is subject to a settlement agreement and consent
decree, although a federal receivership has not been imposed.
The CRIPA settlement requires DMH to provide individual patient
assessments and collaborative treatment. In light of the CRIPA
litigation, simply providing minimal constitutional procedures
may not be enough to satisfy the court and U.S. DOJ. How such
procedures are implemented will be fully scrutinized.
The Budget Committee has drafted the following summary of the
ongoing U.S. DOJ investigation and litigation under the
Constitutional Rights of Institutionalized Persons Act
concerning conditions and treatment in DMH:
CRIPA Plan Generally: In July 2002, the U.S. DOJ
completed a review of conditions at Metropolitan State
Hospital. Recommendations for improvements at
Metropolitan in the areas of patient assessment,
treatment, and medication were provided to DMH. Since
this time, the U.S. DOJ identified similar conditions
at Napa, Patton, and Atascadero Ýbut not Coalinga].
The Administration and US DOJ reached a Consent
Judgment for an "Enhanced Plan"? on May 2, 2006.
The Ýjudgment] also appointed a Court Monitor to
review implementation of the plan and to ensure
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compliance. Failure to comply with the Enhanced Plan
Ýcould] result in ? receivership. ? DMH has until
November 2011 to fully comply with the Ýplan].
5. Recent Amendments: Certification Hearing before an
Administrative Law Judge where DMH seeks during Treatment to
Involuntarily Medicate Defendant for up to 21 Before a Court
Hearing
This bill was amended on June 28, 2011 to grant an IST defendant
the right to a hearing conducted by an ALJ where DMH seeks to
involuntarily the defendant during the course of treatment.
Where the ALJ finds grounds to involuntarily medicate the
defendant, the matter shall be heard by a superior court judge
within 18 days<2>. As the bill was previously drafted, the
certification process was to be conducted only by a psychiatrist
not involved in the treatment of the patient and a patient
representative.
Disability Rights California<3> (DRC) argued that the process
would not adequately protect patients' rights. DRC has
requested that the bill be amended to provide that the process
for involuntarily medicating patients during the course of
treatment should include a hearing by an administrative law
judge. The bill now includes the provisions requested by DRC.
Providing an IST defendant-patient with a hearing by an ALJ, who
is not employed by or associated with DMH, could be important in
convincing defendants to cooperate with the process. The
statutes on incompetent defendants clearly include an intent to
obtain the cooperation of the defendant in his or her treatment.
Further, the existing settlement in the federal (CRIPA)
litigation stresses the need for individual patient plans and
patient collaboration. Where medication is administered
pursuant to a court order, not by consent, it would still be
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<2> The hearing process takes three days. The maximum total
period of medication prior to a superior court hearing is 21
days.
<3> DRC is an advocacy organization for persons who have various
disabilities. The organization was created by federal
legislation in 1975.
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very important for the defendant to cooperate and not be
disruptive or even violent. Providing a process that appears to
be fair and impartial could be very important in gaining
cooperation of the defendant.
SHOULD THE DEPARTMENT OF MENTAL HEALTH BE AUTHORIZED TO CONDUCT
AN ADMINISTRATIVE PROCESS FOR INVOLUNTARY MEDICATION OF A
DEFENDANT WHO IS INCOMPETENT TO STAND TRIAL?
SHOULD THE PROCESS REQUIRE A SHOWING TO AN ADMINISTRATIVE LAW
JUDGE THAT THE DEFENDANT EITHER LACKS CAPACITY AND WILL SUFFER
SERIOUS HARM OR IS A DANGER TO SELF OR OTHERS?
SHOULD INVOLUNTARY MEDICATION BE AUTHORIZED FOR NO MORE THAN 21
DAYS BEFORE A HEARING ON THE ISSUE IS HELD IN SUPERIOR COURT?
6. Additional Amendment Requested by Disability Rights California
(DRC) - Limit on Length of Time for Court's Medication Order
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DRC remains in opposition to the bill unless it is amended to
set a limit on the time the court's order for involuntary
medication may remain in effect. In particular, DRC requests
that where the defendant is gravely disabled, the order should
be for no more than one year and where the order is based on the
danger the defendant presents to self or others, the order
should be for no more than 180 days.
Prison authorities may involuntarily administer anti-psychotic
medication to prison inmates under essentially the same grounds
as those provided by this bill - grave disability or danger to
self or others. An order for involuntary medication of an
inmate who is gravely disabled is valid for one year.
Involuntary medication for a dangerous inmate is valid for 180
days. AB 1114 (Lowenthal), which passed this Committee on June
28, 2011, would authorize involuntary anti-psychotic medication
for one year for gravely disabled and dangerous inmates.
It should be noted, however, that mentally ill prison inmates
are in very different circumstances than IST defendants.
Mentally ill inmates are serving sentences that may be decades
long. Many suffer chronic mental illnesses that require
long-term medication, even where the need for involuntary
medication may arise from a crisis. In contrast, the main
purpose for treating IST defendants is to restore them to
competency for trial. The test for competency is that the
defendant understands the nature of the criminal proceedings and
can assist counsel in presenting a defense. Ideally, the
defendant will be returned to competency through short-term
treatment. A defendant may be competent yet still suffer from a
serious mental illness. If the defendant must be treated for a
long period of time, DMH and the court must consider whether or
not the defendant can ever be rendered competent such that a
civil commitment must be contemplated.
Limiting the length of time that a medication order is valid
would increase the likelihood that defendants do not take
powerful anti-psychotic medications for unnecessary periods of
time. These drugs have serious, and sometimes permanent, side
effects. The United States Supreme Court and the California
Supreme Court have noted the dangers of anti-psychotic
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medications. Concerns about medication side effects were
important in the major cases confirming the due process rights
of mentally ill defendants and inmates. (Sell v. U.S., supra,
539 U.S. 166, 181-182; In re Qawi (2004) 32 Cal.4th 1, 14-16.)
Because the purpose for IST treatment is to return a defendant
to competency in a relatively short period of time, it is
arguable that the maximum period of involuntary medication
should be 180 days. This would essentially require an
appropriate and reasonable review of the defendant's condition.
Perhaps this bill could be amended to allow involuntary
medication of IST defendants for that period of time.
SHOULD THE COURT ORDER FOR INVOLUNTARY MEDICTION HAVE A TIME
LIMIT OF 180 DAYS?
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