BILL ANALYSIS Ó
AB 366
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 366 (Allen and Achadjian)
As Amended September 1, 2011
Majority vote
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|ASSEMBLY: |79-0 |(May 31, 2011) |SENATE: |35-0 |(September 7, |
| | | | | |2011) |
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Original Committee Reference: PUB.S.
SUMMARY : Modifies the process by which individuals who are declared
incompetent to stand trial can be involuntarily medicated.
The Senate amendments require that within 72 hours of the
commencement of involuntary medication, the defendant is provided a
medication review hearing before an administrative law judge to be
conducted at the facility where the defendant is being treated.
Specifically, these amendments:
1)Require that the hearing shall have the following characteristics:
a) The treating psychiatrist shall present the case for
certification;
b) The defendant shall be represented by an attorney or a
patient's rights advocate; and,
c) The attorney or patient's right advocate shall be appointed
no later than one day prior to hearing to review the
defendant's rights, discuss the process, answer questions or
concerns regarding the hearing or the involuntary medication,
assist the defendant in preparing for the hearing and
advocating for his or her interests at the hearing, advise the
defendant of his or her right to judicial review of the panel's
decision, and provide the defendant with referral information
for legal advice on the subject.
2)State that the defendant shall have the following rights at the
hearing:
a) To be given timely access to his or her records;
b) To be present at the hearing, unless the defendant waives
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that right;
c) To present evidence at the hearing;
d) To question person presenting evidence supporting
involuntary medication;
e) To make reasonable requests for attendance of witnesses on
the defendant's behalf; and,
f) To a hearing conducted in an impartial and informal manner.
3)State that if the administrative law judge determines that the
defendant meets the criteria for involuntary medication, as
specified, the antipsychotic medication may continue to be
administered to the defendant for the remainder of the 21 day
certification period.
4)State that if the administrative law judge determines that the
defendant does not meet the criteria for involuntary medication,
the antipsychotic medication may not be administered.
5)Specify that an order for involuntary medication is valid for no
more than one year.
6)Require that the court review the involuntary medication order
after six months to determine if the circumstances requiring
involuntary medication remains. At the hearing, the court shall
consider the reports of the treating psychiatrist and the
defendant's patients' rights advocate or attorney, and may require
testimony from the treating psychiatrist or the defendant's
patients' rights advocate or attorney, if necessary. At the
hearing, the court may continue the order for involuntary
medication for up to another six months, vacate the order, or make
any other appropriate order.
7)Require the treating facility, where the court has issued an order
authorizing the treating facility to involuntarily administer
antipsychotic medication to the defendant, to include in 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 not
limited to the following:
a) Whether or not the defendant has the capacity to make
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decisions concerning antipsychotic medication;
b) If the defendant lacks capacity to make decisions concerning
antipsychotic medication, whether the defendant risks serious
harm to his or her mental or physical health if not treated
with antipsychotic medication;
c) Whether or not the defendant presents a danger to others if
he or she is not treated with antipsychotic medications;
d) Whether the defendant has a mental illness for which
medications is the only effective treatment;
e) 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;
f) Whether there are any effective alternatives to medication;
g) How quickly the medication is likely to bring the defendant
to competency;
h) Whether the treatment plan included methods other than
medication to restore the defendant to competency; and,
i) A statement, if applicable, that no medication is likely to
restore the defendant to competency.
8)Require the court, after reviewing the reports, the determine
whether or not grounds for the order authorizing involuntary
administration of antipsychotic medications still exist, and do
one of the following:
a) If the original grounds for involuntary medication still
exist, the order authorizing the treating facility to
involuntarily administer antipsychotic medication to the
defendant will remain in effect;
b) If the original grounds for involuntary medication no longer
exist, and there is no other basis for involuntary medication,
the order for involuntary administration of antipsychotic
medications shall be vacated; or,
c) If the original grounds for involuntary medication no longer
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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 involuntary administration of antipsychotic
medication shall be issued.
9)Specifies that a defendant may file a petition for a 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.
AS PASSED BY THE ASSEMBLY , this bill modified the process by which
individuals who are declared incompetent to stand trial can be
involuntarily medicated. Specifically, this bill :
1)Stated when a court finds a defendant incompetent to stand trial,
the court shall also determine if the defendant lacks capacity to
make decisions regarding antipsychotic medications:
a) If the court finds that the defendant has capacity to make
decisions regarding antipsychotic medications, and if the
defendant, with advice of his or her counsel, consents to the
medication, the court order of commitment shall include
confirmation that antipsychotic medication may be given to the
defendant as prescribed by a treating psychiatrist pursuant to
the defendant's consent.
b) If the court finds that the defendant has capacity to make
decisions regarding antipsychotic medications, and the
defendant does not consent, or the court determines that the
defendant does not have capacity to make decisions regarding
antipsychotic medication, the court shall hear and determine if
the defendant is not medicated with antipsychotic medications,
it is probable that the defendant will cause harm to his or her
physical or mental health, the defendant is a danger to others,
or the defendant is charged with a violent felony, as
specified. If the court finds any of the above to be true, the
court shall issue an involuntary medication order to be
included in the commitment order.
2)Stated that if a defendant who consented to antipsychotic
medications revokes his or her consent, and the treating
psychiatrist determines that antipsychotic medications have become
medically necessary and appropriate, and it is probable that the
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defendant will cause harm to his or her physical or mental health
or the defendant is a danger to others, the psychiatrist shall
certify that the above conditions exist.
3)Stated that if a defendant whose commitment order did not include
an involuntary medication order, and the treating psychiatrist
determines that antipsychotic medications have become medically
necessary and appropriate, and it is probable that the defendant
will cause harm to his or her physical or mental health or the
defendant is a danger to others, the psychiatrist shall certify
that the above conditions exist. Before making the certification,
the psychiatrist shall attempt to obtain informed consent from the
defendant.
4)Stated that if the treating psychiatrist certifies that
antipsychotic medication has become medically necessary, and the
defendant either revoke his or her consent, or whose commitment
papers did not include an involuntary medication order,
antipsychotic medications may be administered to the defendant for
not more than 21 days:
a) Within 72 hours of the certification, a two-person panel
comprised of a psychiatrist not involved in the defendant's
treatment and a patient representative shall review the
treating psychiatrist's certification. If both panelists
concur with the certification, involuntary administration of
antipsychotic medications may continue for the remainder of the
21 days.
b) The treating psychiatrist shall file a copy of the
certification and a petition for the issuance of an order for
involuntary medication beyond the 21 day period with the court.
The court is required to hold the hearing within 18 days of
the certification, and shall provide notice to the prosecuting
attorney and the attorney for the defendant. If as a result of
the hearing, the court finds that antipsychotic medication
should be administered beyond the 21 day period, the court
shall issue an order authorizing the administration of that
medication. The order shall be within three calendar days
from the hearing, and in no case be beyond the 21 day
certification period.
FISCAL EFFECT : According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
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Major Provisions 2011-12 2012-13 2013-14 Fund
Administrative Law Judge
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
dollarsGeneral**
compensation and dollars annually, commencing after
staff backfill cost avoidance implementation
*Trial Court Trust Fund
**See Staff Comments
COMMENTS : According to the author, "AB 366 makes state hospitals
safer for patients and staff by improving the current involuntary
medication process to eliminate any significant gap in the necessary
treatment for patients deemed incompetent to stand trial (IST) and
committed to a state hospital (Penal Code 1370) who have
demonstrated that they are a danger to themselves or others.
Specifically, AB 366 does the following:
"ÝFirst, r]equires a judge to determine if the defendant lacks the
capacity to make decisions regarding antipsychotic medication in the
initial trial where the defendant is deemed incompetent to stand
trial and consented to the administration of antipsychotic drugs.
The problem with existing law is that a defendant, at the advice of
counsel, may consent to the administration of antipsychotic drugs
yet may not be competent to make that decision. Therefore, the
state hospital may receive a defendant who has initially consented
to antipsychotic medication yet does not have the capacity to make
that decision. As a result, the defendant may subsequently withdraw
that consent and even though they clearly do not have the capacity
to make that decision, the state hospital must obtain a new court
order authorizing the medication using the existing standard that
the defendant lacks the capacity to make decisions regarding
antipsychotic medication.
"Rather than allowing a defendant to consent to a court order that
they don't have the capacity to consent to, the court should
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establish that capacity up front rather than having to immediately
send the defendant back to court to get the order. This would not
eliminate any due process rights of the defendant and would save
precious time and resources of our courts and state hospital
systems. In addition, it would ensure that defendants are not left
untreated and allowed to mentally deteriorate while awaiting the new
court order.
"ÝSecond, c]reates an independent internal process to provide
temporary involuntary medication if the defendant withdraws their
consent to be medicated after admittance to the hospital until a
court decides whether the defendant should be medicated which must
occur within 21 days from the start of the involuntary medication.
The internal process for temporary involuntary medication would only
be permissible if the hospital follows the procedures that protect
independent medical decision-making and due process rights as
provided for in various U.S. Supreme Court decisions, most notably,
Washington v. Harper.
"The problem with existing law is that when defendants withdraw
their consent to be medicated, a new court order for medication may
take weeks and sometimes months. For most patients, the lack of
medication causes further deterioration of their mental disease
making it harder to restore the defendant to competency, sometimes
to the point where they may never be restored to competency.
Additionally, patients who are not only a danger to themselves, but
a danger to others, compromise the recovery of other patients and
create a very dangerous environment putting the lives of all
patients and staff at risk.
"By providing a temporary process for involuntary medication, one
that is upheld by the U.S. Supreme Court, patients in need of
medication will no longer go untreated and patients will be restored
to competency so that they can stand trial. Additionally, by
establishing a timeline for when the committing court must hear and
decide on the request for long-term medication, the existing
standard for long-term involuntary medication is upheld while the
courts are provided a firm but reasonable time limit to make a
decision. Most importantly, eliminating the gap in treatment will
greatly improve patient recovery as well as greatly improve the
safety for all patients and staff.
"Recent reports by the Los Angeles Times, New York Times, and other
papers highlighted by the recent tragic death of an employee just
last October at Napa State Hospital and the brutal beating of
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another employee just six week later at the same facility, have
highlighted the inherent danger for both patients and staff at our
state hospitals. Data provided by the Department of Mental Health
at the request of various media outlet as well as the Select
Committee on State Hospital Safety have also helped document the
increasingly unsafe conditions.
"For example a study performed jointly by the University of
California, Davis and Napa State Hospital showed that in 2010 there
were over 8,300 incidents at the five state hospitals where an
aggressor was identified. In approximately 6,700 of these
incidents, a victim was identified. Out of these incidents, there
were over 5,100 injuries, over 1,000 of them staff injuries
including one death. These numbers amounts 23 aggressive acts per
day, 18 victims per day, 14 injuries per day, and 3 staff injuries
per day. The Los Angeles Times also recently 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 is little debate that the primary cause in the increase in
violent incidents is due to the increasing forensic population
combined with facilities and safety infrastructure that were not
designed or maintained for this patient population. For example,
Napa State Hospital currently houses a forensic population around 85
percent whereas 15 years ago the forensic population hovered around
20 percent. As of December 31, 2010 most of the 9,061 patients at
the five state hospitals were forensic commitments. About 10
percent, or roughly 900 of the patients at the five hospitals are
Penal Code 1370 commitments or those deemed incompetent to stand
trial - the population that AB 366 attempts to address.
"Addressing the treatment gap for PC1370 commitments will have
profound effects. For example, a Department of Mental Health
Quality Control analysis that examined PC 1370 commitments from
January 31, 2010 to December 22, 2010 found that individuals who
consent to take medications but who are not ordered to do so are
more aggressive and take longer to recover. This is because those
without a court order can refuse medication, even if they are not
competent to make that decision, causing medication and treatment to
be inconsistent and therefore much less effective. Addressing this
issue prior to commitment through a determination of competency when
the patient initially consents as proposed in AB 366 will
significantly reduce violent incidents and improve patient recovery
as well as improve the safety of patients and workers.
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"Creating a safer environment will also have significant financial
benefits. Since the 2003-04 fiscal year, overtime expenditures from
the five state hospitals and the two state psychiatric facilities
went from $40 million to $101 million. The mandatory staffing
ratios during the recent furloughs from 2008 to 2010 contributed to
this increase as did the addition of Coalinga State Hospital in
2005. However, the spike in overtime is also attributed to the time
missed due to workers' compensation claims which have increased
sharply over this same timeframe. At Napa State Hospital there were
396 staff injuries in 2009 resulting in 278 workers' compensation
claims and 9,473 missed work days and in 2010 there were 384 staff
injuries resulting in 289 workers' compensation claims and 10,724
missed work days. While it is difficult to determine exactly how
much the state will save if the treatment gap is fixed as proposed
in AB 366, the workers' compensation savings will certainly be in
the millions of dollars.
"Leaving patients untreated is bad for the patient in need of
treatment, damaging to the other patients receiving treatment, and
puts the lives of all patients and staff at risk. It is
unconscionable to leave some patients untreated for months while
they deteriorate in our state hospitals. AB 366 proposed minor
changes in our system that will provide significant safety
improvements that patients, patient families, and workers expect and
deserve."
Please see the policy committee analysis for a full discussion of
this bill.
Analysis Prepared by : Milena Nelson / PUB. S. / (916) 319-3744
FN: 0002695