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
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          ____

          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 








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          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 








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               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 








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          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.