BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 366|
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THIRD READING
Bill No: AB 366
Author: Allen (D) and Achadjian (R), et al.
Amended: 8/30/11 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 7/5/11
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE APPROPRIATIONS COMMITTEE : 9-0, 8/25/11
AYES: Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley,
Price, Runner, Steinberg
ASSEMBLY FLOOR : 79-0, 5/31/11 - See last page for vote
SUBJECT : Persons found incompetent to stand trial:
involuntary
administration of drugs
SOURCE : American Federation of State, County and
Municipal
Employees
Union of American Physicians and Dentists
DIGEST : This bill revises the procedures governing the
involuntary administration of antipsychotic medication to
state hospital patients. Specifically, this bill,
commencing July 1, 2012, (1) provides that where a court
finds a defendant incompetent to stand trial (IST), the
court shall determine if the defendant has the capacity to
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make decisions concerning medication, (2) provides 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) provides 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) grants the defendant a right to
hearing before an administrative law judge as part of the
certification process.
ANALYSIS : Existing law states that a person cannot be
tried or adjudged to punishment while that person is
mentally incompetent (IST - incompetent to stand trial).
(Penal Code Section 1367, subd. (a))
Existing law provides that a defendant is 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. (Penal Code Section 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. (Penal Code
Section 1368, subd. (a))
Existing law states that the trial to determine mental
competency shall proceed as follows (Penal Code Section
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/her ability to understand the proceedings
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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.
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. (Penal Code
Section 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. (Penal Code Section 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. (Penal Code Section
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
(Penal Code Section 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:
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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/her
physical or mental health, or has previously suffered
these effects as a result of a mental disorder and
his/her condition is substantially deteriorating.
o The defendant is a danger to others, in that the
he/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/her
medical condition. (Penal Code Section 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
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involuntarily administer anti-psychotic medication to the
defendant when and as prescribed by the defendant's
treating psychiatrist. (Penal Code Section 1370, subd.
(a)(2)(B)(iii))
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.
(Penal Code Section 1370, subd. (a)(2)(C))
This bill states when a court finds a defendant IST, the
court shall also determine if he/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.
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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 medicated until a superior
court hearing is held within 21 days.
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.
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
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administered unless and until the superior court orders
involuntary administration.
This bill provides that the court shall give notice of the
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. This bill provides that an order by
the court authorizing involuntary medication of the
defendant shall be valid for no more than one year. The
court shall review the order six months after the order was
made to determine if the grounds for the authorization
remain. In the review, the court shall consider the reports
of the treating psychiatrist or psychiatrists and the
defendant's patients' rights advocate or attorney. The
court may require testimony from the treating psychiatrist
or psychiatrists and the patients' rights advocate or
attorney, if necessary. The court may continue the order
authorizing involuntary medication for up to another six
months, or vacate the order, or make any other appropriate
order.
The provisions of this bill become operative on July 1,
2012.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/30/11)
American Federation of State, County and Municipal
Employees (co-source)
Union of American Physicians and Dentists (co-source)
California Association of Psychiatric Technicians
California State Law Enforcement Association
Service Employees International Union
ARGUMENTS IN SUPPORT : According to the author:
"AB 366 makes state hospitals safer for patients and
staff by improving the current involuntary medication
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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 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.
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"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 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."
ASSEMBLY FLOOR : 79-0, 5/31/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nestande,
Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
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John A. Pérez
NO VOTE RECORDED: Gorell
RJG:mw 8/30/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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