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
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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;
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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
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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:
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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
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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
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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;
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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,
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"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
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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
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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.
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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