BILL NUMBER: AB 1114	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 31, 2011
	PASSED THE ASSEMBLY  SEPTEMBER 6, 2011
	AMENDED IN SENATE  AUGUST 15, 2011
	AMENDED IN SENATE  JULY 7, 2011
	AMENDED IN ASSEMBLY  APRIL 28, 2011
	AMENDED IN ASSEMBLY  APRIL 6, 2011

INTRODUCED BY   Assembly Member Bonnie Lowenthal

                        FEBRUARY 18, 2011

   An act to amend Section 2600 of, and to add Section 2602 to, the
Penal Code, relating to inmates.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1114, Bonnie Lowenthal. Inmates: involuntary administration of
psychotropic medications.
   Existing law provides that a person sentenced to imprisonment in a
state prison may be deprived of rights only as is reasonably related
to legitimate penological interests. Existing law states that
nothing in this provision shall be construed to permit the
involuntary administration of psychotropic medication unless the
process specified in Keyhea v. Rushen (1986) 178 Cal.App.3d 526 has
been followed. Existing law further requires that this process be
conducted by an administrative law judge.
   This bill would delete the provision regarding the medication
process specified in Keyhea v. Rushen. The bill would instead provide
that no inmate shall be administered psychotropic medication on a
nonemergency basis without the inmate's informed consent, unless
after a noticed hearing is conducted in which an administrative law
judge determines by clear and convincing evidence that the inmate has
a mental illness or disorder, that as a result of that illness the
inmate is gravely disabled and lacks the capacity to consent or
refuse treatment or is a danger to self or others if not medicated,
that there is no less intrusive alternative to involuntary
medication, and that the medication is in the inmate's best medical
interest.
   The bill would provide that it is not intended to prohibit a
physician from taking appropriate action in an emergency, as
specified, and would require notice of a hearing to be filed with the
Office of Administrative Hearings within 72 hours of administering
medication on an emergency basis. When medication is administered on
an emergency basis, the bill would require the hearing to commence
within 21 days of the filing. The bill would provide that an order
providing for the involuntary administration of psychotropic
medication shall be valid for one year from the date the
determination is made, and that the order may be renewed annually at
subsequent hearings before an administrative law judge, as provided.
In each case, this bill would require that the inmate be provided
with written notice, as specified, and appointed counsel at least 21
days prior to the hearing. The bill would provide that an inmate is
entitled to file one motion for reconsideration following a
determination that he or she may receive involuntary medication and
may seek a hearing to present new evidence, upon good cause shown.
   This bill would incorporate changes to Section 2600 of the Penal
Code made by AB 109, which has been chaptered but is not operative,
to become operative only if AB 109 becomes operative.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 2600 of the Penal Code, as amended by Section 1
of Chapter 555 of the Statutes of 1994, is amended to read:
   2600.  (a) A person sentenced to imprisonment in a state prison
may during that period of confinement be deprived of such rights, and
only such rights, as is reasonably related to legitimate penological
interests.
   (b) Nothing in this section shall be construed to overturn the
decision in Thor v. Superior Court, 5 Cal. 4th 725.
  SEC. 1.5.  Section 2600 of the Penal Code, as amended by Section
462 of Chapter 15 of the Statutes of 2011, is amended to read:
   2600.  (a) A person sentenced to imprisonment in a state prison or
to imprisonment pursuant to subdivision (h) of Section 1170 may
during that period of confinement be deprived of such rights, and
only such rights, as is reasonably related to legitimate penological
interests.
   (b) Nothing in this section shall be construed to overturn the
decision in Thor v. Superior Court, 5 Cal. 4th 725.
  SEC. 2.  Section 2602 is added to the Penal Code, to read:
   2602.  (a) Except as provided in subdivision (b), no person
sentenced to imprisonment in a state prison shall be administered any
psychotropic medication without his or her prior informed consent.
   (b) If a psychiatrist determines that an inmate should be treated
with psychotropic medication, but the inmate does not consent, the
inmate may be involuntarily treated with the medication. Treatment
may be given on either a nonemergency basis as provided in
subdivision (c), or on an emergency basis as provided in subdivision
(d).
   (c) The Department of Corrections and Rehabilitation may seek to
initiate involuntary medication on a nonemergency basis only if all
of the following conditions have been met:
   (1) A psychiatrist has determined that the inmate has a serious
mental disorder.
   (2) A psychiatrist has determined that, as a result of that mental
disorder, the inmate is gravely disabled or a danger to self or
others and does not have the capacity to refuse treatment with
psychotropic medications.
   (3) A psychiatrist has prescribed one or more psychotropic
medications for the treatment of the inmate's disorder, has
considered the risks, benefits, and treatment alternatives to
involuntary medication, and has determined that the treatment
alternatives to involuntary medication are unlikely to meet the needs
of the patient.
   (4) The inmate has been advised of the risks and benefits of, and
treatment alternatives to, the psychotropic medication and refuses or
is unable to consent to the administration of the medication.
   (5) The inmate is provided a hearing before an administrative law
judge.
   (6) The inmate is provided counsel at least 21 days prior to the
hearing. The hearing shall be held not more than 30 days after the
filing of the notice with the Office of Administrative Hearings,
unless counsel for the inmate agrees to extend the date of the
hearing.
   (7) The inmate and counsel are provided with written notice of the
hearing at least 21 days prior to the hearing. The written notice
shall do all of the following:
   (A) Set forth the diagnosis, the factual basis for the diagnosis,
the basis upon which psychotropic medication is recommended, the
expected benefits of the medication, any potential side effects and
risks to the inmate from the medication, and any alternatives to
treatment with the medication.
   (B) Advise the inmate of the right to be present at the hearing,
the right to be represented by counsel at all stages of the
proceedings, the right to present evidence, and the right to
cross-examine witnesses. Counsel for the inmate shall have access to
all medical records and files of the inmate, but shall not have
access to the confidential section of the inmate's central file which
contains materials unrelated to medical treatment.
   (C) Inform the prisoner of his or her right to contest the finding
of an administrative law judge authorizing treatment with
involuntary medication by filing a petition for writ of
administrative mandamus pursuant to Section 1094.5 of the Code of
Civil Procedure, and his or her right to file a petition for writ of
habeas corpus with respect to any decision of the Department of
Corrections and Rehabilitation to continue treatment with involuntary
medication after the administrative law judge has authorized
treatment with involuntary medication.
   (8) An administrative law judge determines by clear and convincing
evidence that the inmate has a mental illness or disorder, that as a
result of that illness the inmate is gravely disabled and lacks the
capacity to consent to or refuse treatment with psychotropic
medications or is a danger to self or others if not medicated, that
there is no less intrusive alternative to involuntary medication, and
that the medication is in the inmate's best medical interest.
   (9) The historical course of the inmate's mental disorder, as
determined by available relevant information about the course of the
inmate's mental disorder, shall be considered when it has direct
bearing on the determination of whether the inmate is a danger to
self or others, or is gravely disabled and incompetent to refuse
medication as the result of a mental disorder.
   (10) An inmate is entitled to file one motion for reconsideration
following a determination that he or she may receive involuntary
medication, and may seek a hearing to present new evidence, upon good
cause shown.
   (d) Nothing in this section is intended to prohibit a physician
from taking appropriate action in an emergency. An emergency exists
when there is a sudden and marked change in an inmate's mental
condition so that action is immediately necessary for the
preservation of life or the prevention of serious bodily harm to the
inmate or others, and it is impractical, due to the seriousness of
the emergency, to first obtain informed consent. If psychotropic
medication is administered during an emergency, the medication shall
only be that which is required to treat the emergency condition and
shall be administered for only so long as the emergency continues to
exist, but in no event longer than five days after the written notice
and counsel are provided pursuant to subdivision (c), unless the
department first obtains an order from an administrative law judge
authorizing the continuance of medication beyond five days. The order
may be issued ex parte upon a showing that in the absence of the
medication the emergency is likely to recur. The request for an order
shall be supported by an affidavit showing specific facts. The
inmate may present facts supported by an affidavit in opposition to
the request. If an order is issued, the psychiatrist may continue the
administration of the medication until the hearing described in
paragraph (5) of subdivision (c) is held.
   (1) The Department of Corrections and Rehabilitation shall file
with the Office of Administrative Hearings, and serve on the inmate
and his or her counsel the written notice described in paragraph (7)
of subdivision (c) within 72 hours of commencing medication pursuant
to this subdivision, unless either of the following occurs:
   (A) The inmate gives informed consent to continue the medication.
   (B) A psychiatrist determines that the psychotropic medication is
not necessary and administration of the medication is discontinued.
   (2) If medication is being administered pursuant to this
subdivision, the hearing described in paragraph (5) of subdivision
(c) shall commence within 21 days of the filing and service of the
notice, unless counsel for an inmate agrees to a longer period of
time.
   (3) With the exception of the timeline provisions specified in
paragraphs (1) and (2) of subdivision (d) for providing notice and
commencement of the hearing in emergency situations, the inmate shall
be entitled to and be given the same due process protections as
specified in subdivision (c). The department shall prove the same
elements supporting the involuntary administration of psychotropic
medication and the administrative law judge shall be required to make
the same findings described in subdivision (c).
   (e) The determination that an inmate may receive involuntary
medication shall be valid for one year from the date of the
determination, regardless of whether the inmate subsequently gives
his or her informed consent.
   (f) If a determination has been made to involuntarily medicate an
inmate pursuant to subdivision (c) or (d), the medication shall be
discontinued one year after the date of that determination, unless
the inmate gives his or her informed consent to the administration of
the medication, or unless a new determination is made pursuant to
the procedures set forth in subdivision (g).
   (g) To renew an existing order allowing involuntary medication,
the department shall file with the Office of Administrative Hearings,
and shall serve on the inmate and his or her counsel, the written
notice described in paragraph (7) of subdivision (c). The notice
shall specify that the request is for a renewal.
   (1) The request to renew the order shall be filed and served no
later than 21 days prior to the expiration of the current order
authorizing involuntary medication.
   (2) To obtain a renewal order, the department shall provide the
same due process protections as specified in subdivision (c). The
department shall prove the same elements supporting the involuntary
administration of psychotropic medication and the administrative law
judge shall be required to make the same findings described in
subdivision (c).
   (3) Renewal orders shall be valid for one year from the date of
the hearing.
   (4) An order renewing a prior order may be granted based on clear
and convincing evidence that, but for the medication, the inmate
would revert to the behavior that was the basis for the prior order
authorizing involuntary medication, coupled with evidence that the
inmate lacks insight regarding his or her need for the medication,
such that it is unlikely that the inmate would be able to manage his
or her own medication and treatment regimen. No new acts need be
alleged or proven.
   (5) The hearing on any petition to renew an order for involuntary
medication shall be conducted prior to the expiration of the current
order.
   (h) In the event of a conflict between the provisions of this
section and the Administrative Procedure Act (Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of the Government Code),
this section shall control.
  SEC. 3.  Section 1.5 of this bill incorporates amendments to
Section 2600 of the Penal Code proposed by both this bill and
Assembly Bill 109, which has been chaptered but is not operative.
Section 1.5 shall become operative only if (1) this bill is enacted
and becomes effective on or before January 1, 2012, (2) this bill
amends Section 2600 of the Penal Code, and (3) Assembly Bill 109
becomes operative, in which case Section 2600 of the Penal Code, as
amended by Section 1 of this bill, shall remain operative only until
the operative date of Assembly Bill 109, at which time Section 1.5 of
this bill shall become operative.