BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Christine Kehoe, Chair AB 366 (Allen) Hearing Date: 8/15/2011 Amended: 7/12/2011 Consultant: Katie Johnson Policy Vote: Public Safety 7-0 _________________________________________________________________ ____ BILL SUMMARY: AB 366 would revise the procedures governing the involuntary administration of antipsychotic medication to state hospital patients. _________________________________________________________________ ____ Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund ALJ Hearings $600 $1,200 $1,200 General DMH court proceedings $125 $250 $250 General Court cost pressure likely in the hundreds of thousands General* and lost fee revenue of dollars annually Potential workers' potentially in the low millions of dollars General** compensation and dollars annually, commencing after staff backfill cost avoidance implementation *Trial Court Trust Fund **See Staff Comments _________________________________________________________________ ____ STAFF COMMENTS: This bill meets the criteria for referral to the Suspense File. Existing law requires a court to hear and determine whether the defendant, with advice from his or her counsel, consents to the administration of antipsychotic medication. Instead, this bill would require the court to hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication and would revise the process for the involuntary administration of antipsychotic AB 366 (Allen) Page 1 medication. Specifically, this bill would: 1) Require the court to determine upfront, instead of upon return to court, whether or not the defendant has capacity to make decisions regarding the administration of antipsychotic medication. The court would issue an order authorizing the treatment facility to involuntarily administer antipsychotic medication to the defendant if he or she was incapable of making decisions regarding antipsychiotic medication and specified conditions relating to a defendant's risk for committing violence were met. Instead of completing this process only if the defendant does not consent to the administration of the medication, this bill would require this process to be completed as part of the court determining whether or not a defendant lacks capacity to make decisions regarding antipsychotic medication. 2) Require that, if a court determines that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant does not consent, the court order for commitment would indicate that after the treating psychiatrist determines that the antipsychotic medication has become medically necessary, attempts to obtain informed consent, and certifies whether or not lack of capacity exists, a specified risk to commit violence is met, and that involuntary administration of antipsychotic medication is likely to render the person competent to stand trial, the defendant would be returned to court to determine whether or not antipsychotic medication should be administered involuntarily. 3) Provide that if the psychiatrist certifies that antipsychotic medication has become medically necessary, antipsychotic medication may be administered to the defendant for not more than 21 days, provided that within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge (ALJ) to be conducted at the facility where the defendant is receiving treatment. 4) Require the certifying psychiatrist to be present and the defendant to be represented by an attorney or a AB 366 (Allen) Page 2 patient's rights advocate. If an ALJ determines that the defendant meets specified criteria, then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrist's certification, the psychiatrist would be required to file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. The psychiatrist would not be a required to pay or deposit any filing fee. 5) Require that, if the ALJ disagrees with the certification, medication may not be administered involuntarily until the court determines that it should be administered. The court would be required to provide notice to the prosecuting attorney and to the attorney representing the defendant and to hold a hearing no later than 18 days from the date of the certification to determine whether or not antipsychotic medication should be ordered beyond the certification period. 6) Require that, if the court determines that antipsychotic medication should be administered, the court would be required to issue an order authorizing its administration. The court would be required to render its decision on the petition and issue its order no later than three calendar days after the hearing and no later than the expiration of the 21-day certification period. 7) Specify that an order by the court authorizing involuntary medication of a defendant would be valid for no more than one year. The court would be required to review the order six months after the order was made to determine if the grounds for the authorization remain. Upon review, the court would be permitted to either continue the involuntary medication for six months, vacate the order, or to make any other appropriate order. ALJ Process There would be approximately 1,000 - 1,100 cases annually that would require a hearing with an ALJ at a cost of approximately $1.2 million annually General Fund. The costs would include 2 legal secretary or clerk positions, funding for ALJ services, inmate counsel/patient advocates, and DMH legal counsel. Either the Department of General Services or the Office of AB 366 (Allen) Page 3 Administrative Hearings would supply or contract for the ALJs. While the bill specifies an ALJ process, it is unclear whether the Department of General Services or the Office of Administrative Hearings would supply the ALJs. Staff recommends that the bill be amended to specify the ALJ source. There could be additional cost pressure to staff and ALJs to meet the "hearing within 72 hours" requirement. Court Cost Pressure While these court cases would be conducted now, this bill would require them to happen within 18 days. There would be significant cost pressure on the courts in the hundreds of thousands of dollars to comply with these provisions. Additionally, there would be a loss of fee revenue due to this bill's provision that psychiatrists would not be required to pay court fees to file petitions. DMH clinicians would be required to be present at these court proceedings and would require resources of approximately $250,000 annually to travel to the location of the court. The recently enacted Budget Act of 2011 reduced ongoing funding to the Judicial Branch budget by $350 million, which will result in reductions in existing court staff and court room closures in various counties across the state. In the absence of additional funding to comply with the provisions of this bill, courts would be required to divert existing resources from other court obligations, resulting in prolonged delays or the inability to complete the courts' other constitutional and statutory responsibilities. Potential DMH Cost Avoidance To the extent that this bill's revision of the procedures governing the involuntary administration of antipsychotic medication were to reduce violence against staff at state hospitals, there could be significant workers compensation and staff backfill cost avoidance, likely in the low millions of dollars annually General Fund.