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