BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 366| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 366 Author: Allen (D) and Achadjian (R), et al. Amended: 9/1/11 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 CONTINUED AB 366 Page 2 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. Senate Floor Amendments of 9/1/11 require the authorizing court to review the medication order at the time the court considers semi-annual reports from the treating physicians. The court shall continue the order if the original grounds still apply, set a hearing on any new grounds, or vacate the order if there is no basis for involuntary administration of medication. 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 CONTINUED AB 366 Page 3 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 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)): CONTINUED AB 366 Page 4 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/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 CONTINUED AB 366 Page 5 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 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. CONTINUED AB 366 Page 6 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 medicated until a superior court hearing is held within 21 days. This bill provides that where the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made at six-month intervals concerning the defendant's progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all the following: 1. Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication. 2. If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication. 3. Whether or not the defendant presents a danger to others if he/she is not treated with antipsychotic medication. 4. Whether the defendant has a mental illness for which medications are the only effective treatment. 5. Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendant's ability to collaborate with counsel. 6. Whether there are any effective alternatives to CONTINUED AB 366 Page 7 medication. 7. How quickly the medication is likely to bring the defendant to competency. 8. Whether the treatment plan includes methods other than medication to restore the defendant to competency. 9. A statement, if applicable, that no medication is likely to restore the defendant to competency. This bill requires that after reviewing the reports, the court must determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following: 1. If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect. 2. If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated. 3. If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as specified. This bill provides that if the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication. CONTINUED AB 366 Page 8 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 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 CONTINUED AB 366 Page 9 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. This bill provides that nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial. The provisions of this bill become operative on July 1, 2012. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 9/1/11) 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 CONTINUED AB 366 Page 10 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. CONTINUED AB 366 Page 11 "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, CONTINUED AB 366 Page 12 Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Gorell RJG:mw 9/1/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED