BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1114
                                                                  Page  1

          Date of Hearing:   April 12, 2011
          Counsel:                Milena Nelson

                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 1114 (Lowenthal) - As Amended:  April 6, 2011


                                       REVISED
          

           SUMMARY  :   Provides that an inmate of the California Department 
          of Corrections and Rehabilitation (CDCR) shall not be 
          administered psychotropic medications without his or her 
          informed consent or with a noticed hearing, as specified.  
          Specifically,  this bill  :  

          1)States than an individual imprisoned in a state prison may be 
            deprived of rights during the period of incarceration, but 
            only as reasonably related to legitimate penological 
            interests.

          2)States that no person described in this section will be 
            administered any psychotropic medications without his or her 
            informed consent unless he or she meets the specified 
            requirements and specified procedures are followed. 

          3)States that if a psychiatrist determines than an inmate should 
            be treated with a psychotropic medication, but the inmate does 
            not consent, the inmate may be treated on a nonemergency basis 
            only if all the following conditions have been met:

             a)   A psychiatrist has determined that the inmate has a 
               serious mental disorder; 

             b)   A psychiatrist has determined that as a result of that 
               mental disorder, the inmate is gravely disabled and does 
               not have the capacity to refuse treatment with psychotropic 
               medications, or is a danger to himself or herself or 
               others; 

             c)   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 








                                                                  AB 1114
                                                                  Page  2

               to involuntary medication, and has determined that the 
               treatment alternatives to involuntary medication are 
               unlikely to meet the needs of the inmate; 

             d)    The inmate has been advised of the risks and benefits 
               of, and treatment alternatives to, the psychotropic 
               medications and refuses or is unable to consent to the 
               administration of the medication; 

             e)   The inmate is provided counsel at least 21 days before 
               the hearing; 

             f)   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; 

             g)   The inmate and counsel are provided with written notice 
               of the hearing at least 21 days prior to the hearing.  The 
               written notice must include the following; 

               i)     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; and

               ii)    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 of the 
                 inmate shall have access to all medical records and files 
                 of the inmates, but shall not have access to the 
                 confidential section of the inmate's central file which 
                 contains materials unrelated to the medical treatment.

             h)   An administrative law judge (ALJ) determines by clear 
               and convincing evidence that the inmate has a mental 
               disorder, that as a result of that illness the inmate is 
               gravely disabled and lacks the capacity to consent or 
               refuse treatment with psychotropic medications or is danger 
               to self or others is not medicated, that there is no less 
               intrusive alternative to involuntary medication, and that 
               the medication is in the inmate's best medical interest; 








                                                                  AB 1114
                                                                  Page  3

               and, 

             i)   The historical course of the inmate's mental disorder, 
               as determined by available relevant information about the 
               course of the inmates' 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 a result 
               of a mental disorder.

          4)States that nothing in this section is intended to prohibit a 
            physician from taking appropriate action in an emergency.

          5)States that an emergency exists when there is a sudden and 
            marked change in the 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 
            if it is impractical, due to the seriousness of the emergency, 
            to first obtain informed consent.

          6)States that if psychotropic medication is administered in an 
            emergency, the medication shall only be that which is required 
            to treat the emergency condition and shall be administer for 
            only as long as the emergency exists.

          7)States that if psychotropic medication is administered to an 
            inmate in an emergency, CDCR will serve the inmate and counsel 
            written notice within 72 hours of commencing medication, 
            unless the inmate gives informed consent to continue the 
            medication or the psychiatrist determines that the 
            psychotropic medication is not necessary and the 
            administration of the medication is discontinued.  If written 
            notice is given, it must include 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; and,

             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 of the 








                                                                  AB 1114
                                                                  Page  4

               inmate shall have access to all medical records and files 
               of the inmates, but shall not have access to the 
               confidential section of the inmate's central file which 
               contains materials unrelated to the medical treatment.

          8)Requires that if psychotropic medication is being administered 
            to an inmate in an emergency a hearing before an 
            administrative law judge must commence within 21 days of the 
            filing of the service of the notice, unless counsel for an 
            inmate agrees to a longer period of time.  The involuntary 
            medication may continue if:

             a)   An ALJ determines by clear and convincing evidence that 
               the inmate has a mental disorder, that as a result of that 
               illness the inmate is gravely disabled and lacks the 
               capacity to consent or refuse treatment with psychotropic 
               medications or is danger to self or others is not 
               medicated, that there is no less intrusive alternative to 
               involuntary medication, and that the medication is in the 
               inmate's best medical interest; and, 

             b)   The historical course of the inmate's mental disorder, 
               as determined by available relevant information about the 
               course of the inmates' 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 a result 
               of a mental disorder.

          9)States that the determination made by the administrative law 
            judge to involuntarily medicate the inmate is valid for one 
            year from the date of determination, regardless of whether the 
            inmate subsequently gave his or her informed consent to the 
            medication.

          10)States that the involuntary medication of an inmate, either 
            on an emergency or nonemergency basis, must discontinue one 
            year from the date of determination, unless the inmate gives 
            her or her informed consent or the following occurs:

             a)   CDCR files notice with the Office of Administrative 
               Hearings and serves written notice on the inmate and his or 
               her counsel.  The written notice must include the 
               following:









                                                                  AB 1114
                                                                  Page  5

               i)     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; 

               ii)    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 of the 
                 inmate shall have access to all medical records and files 
                 of the inmates, but shall not have access to the 
                 confidential section of the inmate's central file which 
                 contains materials unrelated to the medical treatment; 
                 and, 

               iii)   Specify the request is for a renewal of an 
                 involuntary medication order. 

             b)   The request for the renewal hearing must be filed and 
               serves no later than 21 days prior to the expiration of the 
               current order authorizing involuntary medication; 

             c)   An ALJ determines by 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.  

          11)States that renewal orders are valid one year from the date 
            of the hearing.  

           EXISTING LAW  :

          1)States that involuntary administration of psychotropic 
            medication must be in accordance with the permanent 
            injunction, dated October 31, 1986, in the matter of Keyhea v. 
            Rushen, 178 Cal. App. 3d 526.  (Penal Code Section 2600.)

             a)   Psychotropic medication may be administered to an inmate 
               without his or her informed consent on an emergency basis 








                                                                  AB 1114
                                                                  Page  6

               for no more than 72 hours.  An emergency is defined as "a 
               sudden marked change in the prisoner's condition so that 
               action is immediately necessary for the preservation of 
               life of the prevention of serious bodily harm to the 
               patient or others, and it is impracticable to first obtain 
               consent."

             b)   If psychotropic medications are to be administered 
               involuntarily for more than 72 hours, but less than 24 
               days, written notice of certification must be served on the 
               inmate and his or her counsel within five days of 
               commencement of involuntary medication.  The certification 
               must be signed by two people, consisting of the chief 
               psychiatrist or the person in charge of psychiatric care at 
               the facility, and a physician or psychologist who 
               participated in the evaluation of the inmate.  
               Certification consists of a showing of:

               i)     Professional staff of the facility where the inmate 
                 is incarcerated has analyzed the inmate's condition and 
                 has found that the inmate is as a result of mental 
                 disorder, gravely disabled and incompetent to refuse 
                 medication, or a danger to others, or a danger to self; 
                 and, 

               ii)    The inmate has been advised of the need for, but has 
                 not been willing to accept medication on a voluntary 
                 basis.  

             c)   Within 10 days of the commencement of involuntary 
               medication, the inmate is entitled to a certification 
               review hearing.  This hearing must have the following 
               characteristics:

               i)     The inmate has the right to be present at the 
                 certification review hearing, the right to assistance by 
                 an attorney or advocate, to present evidence on his or 
                 her behalf, to question persons presenting evidence in 
                 support of the certification decision, to make reasonable 
                 requests for the attendance of facility employees who 
                 have knowledge of or participated in the certification 
                 decision; 

               ii)    The hearing shall be conducted by either a 
                 court-appointed commissioner or a referee, or a 








                                                                  AB 1114
                                                                  Page  7

                 certification review hearing officer.  The certification 
                 review hearing officer shall be either a state qualified 
                 administrative law hearing officer, a medical doctor, a 
                 licensed psychologist, a registered nurse, a lawyer, a 
                 certified law student, or a licensed clinical social 
                 worker.  Licensed psychologists, licensed clinical social 
                 workers, and registered nurses who serve as certification 
                 review hearing officers shall have had a minimum of 
                 five-years' experience in mental health.  Certification 
                 review hearing officers shall be selected from a list of 
                 eligible persons unanimously approved by a panel composed 
                 of the local mental health director, the public defender, 
                 and the district attorney of the county in which the 
                 facility is located.  No employee of the California 
                 Department of Corrections may serve as a certification 
                 review hearing officer; 

               iii)   The evidence in support of certification shall be 
                 presented by a person designated by the superintendent or 
                 warden of the facility; 

               iv)    The person conducting the hearing must be informed 
                 if the inmate has received medication within 24 hours of 
                 the hearing, and of the probable effects of the 
                 medication; and, 

               v)     The hearing officer will determine if there is 
                 probable cause that the inmate suffers a mental disorder 
                 either gravely disabled and incompetent to refuse 
                 medication or is a danger to others or a danger to self.

             d)   If the hearing officer determines there is probable 
               cause to continue to involuntarily medicate the inmate, the 
               inmate is entitled to review by an ALJ.  The hearing must 
               have the following characteristics:

               i)     The inmate has the right to be present, the right to 
                 assistance by an attorney or advocate, to present 
                 evidence on his or her behalf, to question persons 
                 presenting evidence, to make reasonable requests for the 
                 attendance of facility employees who have knowledge of or 
                 participated in the certification decision, and the 
                 inmate's counsel must have access to all health records 
                 and all documents and files relied upon to certify the 
                 inmate for involuntary medication;








                                                                  AB 1114
                                                                  Page  8


               ii)    The ALJ is to determine by clear and convincing 
                 evidence that:

                  (1)       The inmate is as a result of mental disorder, 
                    gravely disabled and incompetent to refuse medication; 
                    or

                  (2)       The inmate is, as a result of mental disorder, 
                    a danger to others or danger to self.

             e)   The determination of involuntary medication expires in 
               180 days if the inmate is a danger to self or others, or 
               one year if the inmate is found to be gravely disabled.  

          2)States that the judicial hearing for the authorization of 
            involuntary administration of psychotropic medication must be 
            conducted by an administrative law judge, and may be conducted 
            at the facility where the inmate is located, at the director 
            of CDCR.  (Penal Code Section 2600.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 1114 changes 
            the procedure for the involuntary administration of 
            psychotropic medication pursuant to the  Keyhea v. Rushen  court 
            decision of 1986 by removing the certification review hearing 
            that precedes the formal adversarial hearing and simplifying 
            that process, thereby shortening the time frame for a prisoner 
            to receive long-term medication to improve their mental 
            health.

          "In addition, AB 1114 codifies the existing process under the 
            Keyhea injunction and ensures that the prisoner is provided 
            with appropriate mental health treatment consistent with his 
            or her due process rights, including the right to counsel and 
            the evidentiary standard of clear and convincing evidence, and 
            that officials take into account the prisoner's mental health 
            history when determining whether or not the prisoner is 
            gravely disabled or a danger to themselves or others prior to 
            authorizing involuntary medication."

           2)Background  :  According to information provided by the author, 








                                                                  AB 1114
                                                                  Page  9

            "AB 1114 changes the procedure for the involuntary 
            administration of psychotropic medication pursuant to the 
            Keyhea v. Rushen court decision of 1986 by removing the 
            certification review hearing that precedes the formal 
            adversarial hearing and simplifying that process, along with 
            the terminology used, to ensure that the prisoner is provided 
            with appropriate, necessary, and beneficial mental health 
            treatment that is also consistent with his or her due process 
            rights.

          "The Keyhea court held that equal protection required that 
            prisoners subject to involuntary psychotropic medication be 
            afforded the same rights as non-prisoners.  At the time of the 
            Keyhea decision, however, there were no statutes defining the 
            rights of non-prisoners subject to involuntary medication.  
            Therefore, the court adopted the procedures used when a court 
            civilly commits a person as gravely disabled or a danger to 
            self or others.  These procedures include an increasingly 
            stringent set of reviews and hearings depending on the length 
            of the commitment sought.  The Keyhea injunction also adopted 
            statutes that define terms utilized to determine whether a 
            person should be removed from society for commitment to a 
            mental hospital.

          "California Penal Code (PC) §2600 incorporates the Keyhea 
            permanent injunction, which sets forth the requirements and 
            procedures the CDCR must comply with prior to involuntarily 
            medicating mentally disordered inmates with psychotropic 
            medication.

          "The Keyhea injunction essentially requires that a prisoner 
            being treated for a serious mental illness must meet the 
            standard for a long term civil commitment in order to be 
            provided with long term involuntary psychotropic medication.  
            This requires, for example, that a prisoner must be gravely 
            disabled to obtain an order for one year of treatment with 
            involuntary medication.  AB 1114 will allow mental health 
            staff to include historical patient data to guide mental 
            health care.

          "In addition, Keyhea requires a certification review hearing to 
            provide a prisoner with involuntary medication for up to 47 
            days.  It then requires an adversarial hearing with 
            representation by counsel before an Administrative Law Judge 
            (ALJ) to provide the prisoner with long term medication.  The 








                                                                  AB 1114
                                                                  Page  10

            certification review hearing meets the constitutional due 
            process standard established by the United States Supreme 
            Court in Washington v. Harper.  However, because California 
            provides the prisoner with an ALJ hearing that far exceeds 
            basic due process requirements; the certification review 
            hearing is entirely unnecessary and therefore wastes valuable 
            clinical and clerical resources."

           3)Involuntary Medication and Inmates  :  The United States Supreme 
            Court has held that a state department of prisons has the 
            authority to involuntarily administer psychotropic medications 
            to inmates who are gravely disabled or a danger to self or 
            others because of mental illness.  ÝWashington v. Harper, 494 
            U.S. 210 (1990).]  The plaintiff in that case, an inmate in 
            the Washington State Penitentiary, was diagnosed with 
            manic-depressive disorder and was sent to the Special Offender 
            Center, a correctional institute to diagnose and treat 
            convicted felons with serious mental disorders.  While there, 
            he was involuntarily medicated with psychotropic medications, 
            and challenged the state's authority to medicate him without 
            his consent, arguing that such involuntary medication violated 
            both substantive and procedural due process.  

          Addressing the substantive due process claim first, the court 
            held that while the plaintiff did have a right to refuse 
            medication that right must be balanced with the state's 
            legitimate penological interests.  (494 U.S. at 224-5.)  The 
            state had a legitimate interest in protecting the inmate and 
            other inmates from harm, and involuntarily medicating the 
            plaintiff was reasonably related to that interest. (494 U.S. 
            at 225.)

          The court also held that the hearing process implemented by the 
            state department of corrections satisfied procedural due 
            process requirements.  (Id. at 228.)  The procedure for 
                                                                   involuntarily administering psychotropic medications to an 
            inmate had four parts.  First, a psychiatrist must determine 
            that the inmate should be treated with psychotropic medication 
            the inmate suffers from a mental disorder or is gravely 
            disabled and is a danger or others.  (Id. at 215.)  Second, 
            the inmate is entitled to a hearing before a committee of 
            health professionals not involved in his or her treatment, in 
            which the committee determines by a majority vote that the 
            inmate suffers from a mental disorder and is gravely disabled 
            or dangerous.  (Id.)  Third, the inmate is given certain 








                                                                  AB 1114
                                                                  Page  11

            procedural rights, including at least 24-hour notice of the 
            hearing, notice of the tentative diagnosis, notice of the 
            factual basis for the diagnosis, and explanation by the staff 
            as to why they believe the medication is necessary. (Id. at 
            216.)  At the hearing, the inmate is entitled to attend, 
            present evidence and witnesses, cross-examine staff witnesses, 
            and to the assistance of a lay advisor who has not been 
            involved in the inmate's case, but understands the psychiatric 
            issues.  (Id.)  Fourth, there must be periodic review of the 
            involuntary medication order.  (Id.)

          The procedures set forth in this bill meet, and in some case 
            exceed, the requirements in Washington v. Harper.  The initial 
            order for involuntary medication is made by a psychiatrist 
            upon a determination that the inmate is gravely disabled or is 
            a danger to self or others because of mental illness.  The 
            inmate is entitled to a hearing, but with greater due process 
            protections, including an ALJ presiding over the hearing.  The 
            inmate in entitled to all the procedural rights, in additional 
            to counsel, which the Court specifically stated was not 
            required.  (Id. at 228.)  Finally, the involuntary medication 
            order is subject to review every year by an ALJ.   
           
           4)Related Legislation  : SB 795 (Blakeslee) changes the process 
            for involuntary medication of defendants found mentally 
            incompetent during the criminal process.  SB 795 is pending 
            hearing by Senate Public Safety.  

           5)Previous Legislation  :

             a)   AB 2380 (Dymally), of the 2005-06 Legislative Session, 
               would have clarified that "treatment" for medically 
               disordered offenders paroled to other facilities for 
               treatment includes involuntary medication.  AB 2380 failed 
               passage in this Committee.

             b)   AB 1424 (Thompson), Chapter 506, Statutes of 2001, 
               related to the involuntary medication for individuals under 
               the Lanterman-Petris-Short Act.

             c)   AB 2798 (Thompson), of the 1999-2000 Session, would have 
               authorized a judicially committed forensic patient in a 
               state hospital to be medicated involuntarily with 
               antipsychotic mediation in accordance with specified 
               procedures.  AB 2798 was never heard by this Committee. 








                                                                  AB 1114
                                                                  Page  12


           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Psychiatric Association
          California Correctional Peace Officers Association

           Opposition 
           
          San Bernardino County Sheriff's Office
          Union of American Physicians and Dentists
           

          Analysis Prepared by  :    Milena Nelson / PUB. S. / (916) 
          319-3744