BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1114
                                                                  Page  1

          Date of Hearing:   April 26, 2011

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                   AB 1114 (Lowenthal) - As Amended:  April 6, 2011

                              As Proposed to Be Amended
           
          SUBJECT  :   INMATES: INVOLUNTARY ADMINISTRATION OF PSYCHOTROPIC 
          MEDICATIONS

           KEY ISSUE  :  SHOULD THE STATE ESTABLISH, AS AN ALTERNATIVE TO THE 
          PROCESS SPECIFIED BY  KEYHEA V. RUSHEN  , NEW PROCEDURAL 
          REQUIREMENTS FOR THE INVOLUNTARY ADMINISTRATION OF PSYCHOTROPIC 
          MEDICATIONS TO STATE PRISON INMATES THAT ELIMINATE THE 
          CERTIFICATION REVIEW HEARING UNDER  KEYHEA,  BUT THAT DO NOT 
          COMPROMISE DUE PROCESS PROTECTIONS FOR INMATES WISHING TO 
          CONTEST INVOLUNTARY MEDICATION?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This bill seeks to establish, as an alternative to the process 
          specified by the permanent injunction in  Keyhea v. Rushen  , new 
          procedural requirements for the involuntary administration of 
          psychotropic medications to state prisoners with mental 
          disorders.  Generally speaking, this bill would codify many of 
          the components of the current  Keyhea  process, but with some 
          notable exceptions.  The most significant difference is that the 
          bill would shorten the overall timeline of the process to ensure 
          that an inmate more quickly can have a hearing before an 
          administrative law judge (ALJ) to discontinue involuntary 
          medication.  However, to expedite the formal ALJ hearing that 
          all stakeholders acknowledge presents the inmate with the 
          greatest due process protections, the bill would eliminate an 
          intermediate opportunity for the inmate to be heard, namely, the 
          certification review hearing that must occur within 10 days of 
          the initial administration of medication that triggers the 
          Keyhea process.  As proposed to be amended, this bill reflects a 
          carefully crafted agreement between the stakeholders that is 
          intended to provide adequate due process protections to inmates, 
          while at the same time streamlining and expediting the Keyhea 
          process.  The bill was approved by the Assembly Public Safety 
          Committee by a 6-0 vote.  The bill is supported by associations 








                                                                  AB 1114
                                                                  Page  2

          of peace officers, parole officers, psychiatrists, and prisoner 
          advocates.  After two previous opponents formally removed their 
          opposition, there is now no known opposition to the bill.

           SUMMARY  :  Establishes procedural requirements that the 
          Department of Corrections and Rehabilitation (CDCR) must follow 
          if it seeks to initiate the involuntary administration of 
          psychotropic medication to an inmate.  Specifically,  this bill  :  
           

          1)Deletes the provision of state law that expressly prohibits 
            the involuntary administration of psychotropic medication to 
            state prison inmates unless the process specified in the 
            permanent injunction in the matter of Keyhea v. Rushen, 178 
            Cal. App. 3d 526, is followed.

          2)Provides that no state prison inmate shall be administered any 
            psychotropic medication without his or her informed consent, 
            unless specified procedures and requirements are complied 
            with.

          3)Provides that if a psychiatrist determines than an inmate 
            should be treated with a psychotropic medication, but the 
            inmate does not consent, CDCR may seek to initiate involuntary 
            medication of the inmate on a nonemergency basis only if a 
            series of specified conditions have been met, among which are 
            that:

             a)   A psychiatrist has determined that the inmate has a 
               serious mental disorder, and 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 self or others; 
             b)   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; 
             c)   The inmate is provided a hearing before an 
               administrative law judge (ALJ).
             d)   The inmate is provided counsel at least 21 days before 
               the hearing, or if medication is administered on an 
               emergency basis, within 24 hours of the initial 
               administration; 
             e)   The inmate and counsel are provided with written notice 
               of the hearing at least 21 days prior to the hearing.  The 








                                                                  AB 1114
                                                                  Page  3

               written notice must include specified information about the 
               diagnosis, and benefits and risks of the medication, as 
               well as the inmate's due process rights with respect to 
               hearing, including the right to counsel and right to file a 
               petition for writ of habeas corpus to contest the 
               determination.
             f)   An administrative law judge determines by clear and 
               convincing evidence that: (1) the inmate has a mental 
               disorder; (2) 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 if not medicated, (3) that there is no 
               less intrusive alternative to involuntary medication, and 
               (4) that the medication is in the inmate's best medical 
               interest; 
             g)   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 
               in the above determination.

          4)Provides that nothing in this act is intended to prohibit a 
            physician from taking appropriate action in an emergency, as 
            defined, and specifies the conditions under which psychotropic 
            medication may be administered to an inmate in an emergency, 
            as specified below:

             a)   The medication shall only be that which is required to 
               treat the emergency and for only so long as the emergency 
               exists, but in no event for longer than 72 hours, unless 
               CDCR first obtains an order from an ALJ authorizing the 
               continuance of medication beyond 72 hours.
             b)   An order may be issued ex parte upon a showing that in 
               the absence of the medication the emergency is likely to 
               recur, and provides that if an order is issued, the 
               psychiatrist may continue the administration of the 
               medication until the formal hearing before an ALJ is held, 
               as specified.
             c)   CDCR must serve the inmate and counsel written notice 
               within 72 hours of commencing medication, except as 
               provided.  
             d)   A hearing before an ALJ must commence within 21 days of 
               the filing of the service of the notice, with the same due 
               process protections required under for inmates contesting 
               involuntary administration on a nonemergency basis. (See 
               3(f) and 3(g) above.)








                                                                  AB 1114
                                                                  Page  4


          5)Provides that a determination made by the ALJ 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.

          6)Provides 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 CDCR follow specified 
            procedures for a renewal hearing.

          7)Provides that to obtain a renewal order, CDCR shall provide 
            the same due process protections required under for inmates 
            contesting involuntary administration on a nonemergency basis. 
            (See 3(f) and 3(g) above.)

             a)   Allows an order for renewal to 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.  
             b)   Provides that no new acts need be alleged or proven.  

           EXISTING LAW  :  

          1)Provides that a person sentenced to imprisonment in a state 
            prison or a county jail pursuant to Penal Code Section 1170(h) 
            may, during that period of confinement, be deprived of such 
            rights, and only such rights, as is reasonably related to 
            legitimate penological interests.  Further provides that this 
            shall not be construed to permit the involuntary 
            administration of psychotropic medication unless the process 
            specified in the permanent injunction, dated October 31, 1986, 
            in the matter of Keyhea v. Rushen, 178 Cal. App. 3d 526, has 
            been followed.  (Penal Code Section 2600.)

          2)Pursuant to the permanent injunction in Keyhea v. Rushen, 178 
            Cal. App. 3d 526 (October 31, 1986):

             a)   Permits psychotropic medication to be administered to an 
               inmate without his or her informed consent on an emergency 








                                                                  AB 1114
                                                                  Page  5

               basis for no more than 3 days. 

             b)   Prohibits the administration of involuntary medication 
               to inmates in excess of 3 days unless such individuals are 
               provided with certain due process protections, including 
               notice of certification, as specified.  Among other things:

               i)     Written notice of certification must be served on 
                 the inmate and his or her counsel within five days of 
                 commencement of involuntary medication
               ii)    Certification consists of a showing that prison 
                 staff have analyzed the inmate's condition and found that 
                 the inmate is as a result of mental disorder, gravely 
                 disabled and incompetent to refuse medication, or a 
                 danger to self or others; and the inmate has been advised 
                 of the need for, but has not been willing to accept 
                 medication on a voluntary basis.  

             c)   Prohibits the administration of involuntary medication 
               to inmates in excess of 10 days after the initial 
               involuntary administration, unless such individuals are 
               additionally provided with a certification review hearing, 
               as specified.  Among other things:

               i)     The inmate certified has the right to be present at 
                 the certification review hearing, the right to assistance 
                 by an attorney, and the right to present evidence.
               ii)    The hearing officer will determine if there is 
                 probable cause that the inmate certified, as a result of 
                 mental disorder, is either gravely disabled and 
                 incompetent to refuse medication or is a danger to others 
                 or a danger to self, and if such determination is made, 
                 the inmate may be involuntarily medicated for 21 
                 additional days beyond the end of the initial 3-day 
                 involuntary medication period.

             d)   Prohibits the administration of involuntary medication 
               to inmates in excess of 24 days after the initial 
               involuntary administration, unless such individuals are 
               additionally provided with a formal judicial hearing before 
               an administrative law judge (ALJ), as specified.  Among 
               other things:

               i)     The inmate shall be appointed a public defender or 
                 other attorney to ensure representation and must 








                                                                  AB 1114
                                                                  Page  6

                 personally appear at the judicial hearing except as 
                 specified.
               ii)    The ALJ may issue a court order authorizing 
                 involuntary medication if the court finds by clear and 
                 convincing evidence that the inmate is as a result of 
                 mental disorder, either gravely disabled and incompetent 
                 to refuse medication, or a danger to others or danger to 
                 self, or both.

             e)   The court order authorizing involuntary medication 
               expires in 180 days if the inmate is found to be a danger 
               to self or others, or one year if the inmate is found to be 
               gravely disabled and incompetent to refuse medication.

             f)   Provides that nothing in these procedures is intended to 
               prohibit a physician from taking appropriate action in an 
               emergency, including the administration of involuntary 
               medication but subject to these time limitations.

           COMMENTS  :  This bill seeks to establish, as an alternative to 
          the process specified by Keyhea v. Rushen, new procedural 
          requirements for the involuntary administration of psychotropic 
          medications to state prisoners with mental disorders.  Generally 
          speaking, this bill would codify many of the components of the 
          current Keyhea process (currently specified only in the 
          permanent injunction in that case), but with some notable 
          exceptions.  The most significant difference is that the bill 
          would shorten the overall timeline of the process to ensure that 
          an inmate more quickly can have a hearing before an 
          administrative law judge to discontinue involuntary medication.  
          However, to expedite the formal ALJ hearing that all 
          stakeholders acknowledge presents the inmate with the greatest 
          due process protections, the bill would eliminate an 
          intermediate opportunity for the inmate to be heard, namely, the 
          certification review hearing that is required within 10 days of 
          the initial administration of medication that triggers the 
          Keyhea process.  Underlying the debate about due process in this 
          context is the U.S. Supreme Court's decision in Washington v. 
          Harper, 494 U.S. 210 (1990), which specifies the minimum 
          standards of due process required for any state department of 
          corrections to involuntarily medicate its inmates.  As proposed 
          to be amended, this bill reflects a carefully crafted agreement 
          between the stakeholders that is intended to provide adequate 
          due process protections to inmates, while at the same time 
          streamlining and expediting the Keyhea process.








                                                                  AB 1114
                                                                  Page  7


           Author's Statement:   According to the author, this bill will 
          streamline a modified version of the Keyhea process, while 
          preserving due process protections for vulnerable inmates and 
          increasing procedural efficiencies.  The bill is also needed to 
          ensure that CDCR takes into account an inmate's mental health 
          history as one of the factors in evaluating an order authorizing 
          involuntary medication.  The author states:

               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.

           Background on Current Keyhea Process:   In Keyhea v. Rushen,178 
          Cal. App. 3d 526 (1986), the First District Court of Appeal held 
          that equal protection requires prisoners subject to involuntary 
          psychotropic medication be afforded the same rights as 
          non-prisoners.  At the time of its decision, however, there were 
          no statutes defining the rights of non-prisoners subject to 
          involuntary medication.  Therefore, the court adopted the 
          procedures and standards used in a civil commitment proceeding, 
          which requires a determination that the person for whom civil 
          commitment is sought is either gravely disabled, or a danger to 
          self or others.  Under this procedural framework, the person is 
          entitled to certain due process protections, including review 
          and opportunities to be heard, that increase as the length of 
          the commitment sought increases.  In short, the Keyhea 
          injunction essentially requires that an inmate having a mental 








                                                                  AB 1114
                                                                  Page  8

          disorder meets the standard for a long term civil commitment 
          before CDCR may involuntarily administer him with psychotropic 
          medication.  This requires, for example, that a prisoner must be 
          gravely disabled, as defined, for CDCR to obtain an order 
          authorizing treatment with involuntary medication for one year.  
           
          On October 31, 1986, the Keyhea court issued a permanent 
          injunction setting forth the requirements and procedures that 
          CDCR must comply with when seeking to involuntarily administer 
          psychotropic medication to any inmate having a mental disorder.  
          In 1994, the Legislature passed and the Governor signed SB 1260, 
          Ch. 555, Stats. 1994, which amended Penal Code Section 2600 to, 
          among other things, establish that the involuntary 
          administration of psychotropic medication to inmates is 
          prohibited unless the process specified in the Keyhea permanent 
          injunction is followed.  

          Pursuant to De Lancie v. Superior Court, 31 Cal. 3d 865 (1982) 
          (holding that county jails are also subject to Penal Code 
          Section 2600), the Keyhea process also applies to county jails.

           Background of Constitutional Requirements under Washington  .  In 
          Washington v. Harper, 494 U.S. 210 (1990), the U.S. Supreme 
          Court addressed the question of whether involuntary medication 
          of a state inmate with psychotropic medications violates both 
          substantive and procedural due process.  Addressing the 
          substantive due process claim first, the Court held that the 
          right of the inmate to refuse medication must be balanced with 
          the legitimate penological interests of the state.  (494 U.S. at 
          224-5.)  The Court found 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.  (Id. at 225.)

          Under Washington, minimum due process is assured when the 
          procedure for involuntary medication to an inmate includes the 
          following components.  First, if the psychiatrist determines 
          that the inmate should be treated with psychotropic medication, 
          but does not consent, the inmate may be subjected to involuntary 
          medication only upon a finding that he has a mental disorder, 
          and is gravely disabled or poses a danger to himself 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 








                                                                  AB 1114
                                                                  Page  9

          is gravely disabled or dangerous.  (Id.)  Third, the inmate is 
          given certain 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.)

           Brief Comparison Of Keyhea Process With AB 1114 Process (As 
          Proposed to Be Amended).   

           Initial Involuntary Medication in an Emergency  .  Under both 
          procedural schemes, physicians may act appropriately to treat an 
          inmate in an emergency, including the involuntary administration 
          of medication for up to 72 hours (3 days).    

           Certification and Certification Review Hearing.   Under Keyhea, 
          involuntary administration is prohibited in excess of 3 days 
          unless the inmate has been certified by prison staff to receive 
          additional days of involuntary medication.  Certification may be 
          issued if the examining psychiatrist finds that the inmate is 
          either (a) gravely disabled and incompetent to receive 
          medication; or (b) a danger to self or others.  If certification 
          is made, the Keyhea process requires a certification review 
          hearing to be held  within 10 days  of the initial involuntary 
          medication.  At the hearing, the certified inmate has certain 
          rights, including the right to assistance by an attorney or 
          advocate and to present evidence on his or her own behalf.  The 
          hearing officer must find the certification is supported by 
          probable cause to uphold it, otherwise the inmate may no longer 
          be involuntarily medicated.

          This bill from the outset has had the objective of eliminating 
          the certification and certification review hearing altogether.  
          Instead, it would require the formal adversarial hearing before 
          an ALJ (see below) to be held no later than 21 days after 
          initial administration if emergency medications are being 
          involuntarily administered, or no later than 30 days if not.  As 
          proposed to be amended, the bill would require CDCR to obtain an 
          order from an ALJ (including an ex parte order) to authorize the 
          continuance of emergency medication past 72 hours.  If the order 








                                                                  AB 1114
                                                                  Page  10

          is issued, the CDCR psychiatrist may continue the administration 
          of the medication until the formal ALJ hearing is held.

           Formal Administrative Hearing.   Under both Keyhea and this bill, 
                                                                              the inmate is entitled to a formal hearing before an ALJ, who 
          must consider a petition by CDCR seeking an order to continue 
          involuntary medication.  In both cases, the ALJ makes a 
          determination based on a "clear and convincing" standard of 
          evidence, not probable cause, that specified criteria are met 
          that would authorize further involuntary medication.  The key 
          difference is in the timing of the formal hearing.  Under 
          Keyhea, after counsel is appointed and CDCR has completed and 
          filed the petition, the hearing typically is not held until 
          around the 47th day after involuntary medication was first 
          initiated.  

          Under this bill, the formal hearing would be held as early as 21 
          days after involuntary medication was first initiated, but no 
          later than 30 days later depending on whether emergency 
          medications are still being administered.  The due process 
          protections that apply in the hearing, unlike the timeline, 
          would not differ under this bill whether the medication is 
          administered on an emergency or nonemergency basis.  In 
          addition, this bill requires that the ALJ shall consider the 
          historical course of the inmate's mental disorder when it has a 
          direct bearing on the determination of whether the inmate is 
          gravely disabled or a danger to self or others.
           
          Length of Authorization for an Order.   Under Keyhea, an order 
          issued by the ALJ authorizing involuntary medication lasts 180 
          days for an inmate who is a danger to self or others, or 365 
          days for an inmate who is gravely disabled.

          Under this bill, that difference in duration is eliminated, and 
          all orders authorizing involuntary medication are valid for 365 
          days (one year) from the date of the ALJ's determination.

           Renewal of Existing Orders Allowing Involuntary Medication.   The 
          Keyhea injunction was largely silent with respect to procedures 
          for renewing an existing order some time later after 
          authorization by the ALJ.  Under Keyhea, CDCR must reinitiate 
          the entire process every 180 days or 365 days to continue its 
          authority to involuntarily medicate an inmate who was subject to 
          a previous order.  









                                                                  AB 1114
                                                                  Page  11

          This bill specifies the characteristics of a process to allow 
          CDCR to seek renewal of existing orders.  The bill would still 
          require CDCR to provide the same due process protections 
          required to obtain the initial order for involuntary medication 
          on a nonemergency basis, including a formal administrative 
          hearing conducted in the same manner as initially carried out.  
          The bill would ensure a smooth transition in the timeline by 
          requiring any renewal request to be filed and served at least 21 
          days before expiration of the current order, and requiring the 
          ALJ hearing to be conducted prior to expiration of the current 
          order.  Because the basis for an order to involuntarily medicate 
          an inmate differs when that inmate has not been medicated for 
          the past 180 or 365 days, as compared to when the inmate has 
          (and thus is presumably less disabled or less of a danger to 
          self or others), the bill requires the ALJ to decide by clear 
          and convincing evidence whether, but for the medication, the 
          inmate would revert to the behavior that was the basis for the 
          prior order, as further specified.  Finally, renewal orders 
          would be authoritative for one year without distinction to if 
          the inmate is gravely disabled or a danger to self or others.  

          As Proposed To Be Amended, This Bill Balances Due Process 
          Protections With Expedited Procedures That Potentially Benefit 
          Inmates As Well.   As proposed to be amended, this bill reflects 
          a carefully crafted agreement between the Committee and numerous 
          stakeholders that is intended to provide inmates with more than 
          minimal due process protections while at the same time 
          streamlining and expediting the Keyhea process.  Elimination of 
          the certification review hearing, a central feature of this 
          bill, is potentially concerning from a due process standpoint 
          because it does away with a guaranteed opportunity to be heard.  
          Extending the time, from 180 days to 365 days, that an order may 
          authorize the involuntary medication of inmates who are a danger 
          to themselves or others raises a similar concern.  The author 
          and sponsor have worked diligently with the Committee and other 
          stakeholders to develop amendments that address these concerns 
          (some of which are reflected in the April 6 amendments) and that 
          increase due process protections within a revised procedural 
          framework that does not, among other things, include provisions 
          for a certification review hearing.

          The author proposes to adopt additional amendments in Committee 
          that do the following:

           1. Require the inmate to be provided counsel within 24 hours of 








                                                                 AB 1114
                                                                  Page  12

          the initial administration of medication, if done on an 
          emergency basis, and require written notice of the right to 
          contest the ALJ's decision by filing a petition for writ of 
          habeas corpus.   The author and sponsor of the bill contend that 
          "because California provides the prisoner with an ALJ hearing 
          that far exceeds basic due process requirements (under 
          Washington v. Harper), the certification review hearing is 
          entirely unnecessary and therefore wastes valuable clinical and 
          clerical resources."  They also contend that, in practice, in 
          over 99% of cases the certification review hearing results in a 
          finding of probable cause that the inmate is gravely disabled or 
          is a danger to self or others, and the Keyhea process 
          appropriately moves forward as specified. Because the current 
          process does not allow for the ALJ hearing until roughly day 47, 
          the inmate often continues to receive involuntary medication for 
          over 30 days after the certification review up until the ALJ 
          hearing on the matter.  Although this bill would eliminate the 
          certification hearing, it would also move up the ALJ hearing by 
          roughly 17 to 26 days-potentially saving the inmate from being 
          involuntarily medicated for that amount of time and making a 
          long-term treatment plan possible sooner.

          With respect to the contention that the ALJ hearing under 
          Keyhea, and preserved under this bill, exceeds basic due process 
          requirements, there is evidence that the procedures set forth in 
          this bill meet, and in some case exceed, the requirements of 
          Washington.  Indeed, 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 also appears to be 
          entitled to the necessary procedural rights, in additional to 
          assistance counsel, which the Court specifically stated was not 
          required.  (494 U.S. at 228.)  Finally, the involuntary 
          medication order is subject to judicial review every year, as 
          required by Washington.

           2. Require CDCR to obtain an order from an ALJ (including an ex 
          parte order) to authorize the continuance of emergency 
          medication past 72 hours  .  This bill as currently in print 
          provides that psychotropic medication administered during an 
          emergency shall be administered for only so long as the 
          emergency continues to exist.  Psychiatrists who contacted the 
          committee contend that, for clinical reasons, these types of 








                                                                  AB 1114
                                                                  Page  13

          medications should not be used in such a manner as to start and 
          stop within a few days.  They contend generally that it is more 
          appropriate that these types of medications, once started, be 
          administered with minimal interruption as appropriate to avoid 
          the phenomenon of "decompensating," which may be very 
          detrimental for the patient's health as well.  Patient 
          advocates, including Disability Rights California (DRC) and 
          others, contend that any rule that authorizes the psychiatrist 
          to prolong emergency administration of the medication past the 
          current limit of 72 hours essentially allows involuntary 
          medication of the inmate for the balance of 21 days (until the 
          mandatory ALJ hearing required by the bill), even if the 
          emergency has ceased, and without any opportunity to be heard or 
          judicial review of the psychiatrist's determination.  This, they 
          argue, would unacceptably compromise the due process rights of 
          the inmate.

          Therefore, the author proposes to amend the bill to require CDCR 
          to obtain an order from an ALJ (which may be obtained ex parte) 
          to authorize the continuance of emergency medication past 72 
          hours.  As proposed to be amended, the inmate may present facts 
          supported by affidavit in opposition to the request for the 
          order, and only if an order is obtained may the psychiatrist 
          continue administration of the medication until the formal ALJ 
          hearing is held at day 21.  This proposed amendment addresses 
          both clinical and due process concerns, allowing judicial review 
          but also the possibility of continuance of the medication upon 
          the psychiatrist's determination.  

          The Union of American Physicians and Dentists has sent a letter 
          to the Committee removing its initial opposition to the bill 
          based on clinical concerns.  The San Bernardino County Sheriff's 
          Office has also officially withdrawn its opposition.  Disability 
          Rights California and other advocates remain neutral on the bill 
          as proposed to be amended.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          AFSCME
          California Association of Psychiatric Technicians
          California Coalition for Women Prisoners
          California Correctional Peace Officers Association
          California Probation Parole and Correctional Association 








                                                                  AB 1114
                                                                  Page  14

          California Psychiatric Association
          Legal Services for Prisoners with Children

           Neutral (Opposition Withdrawn)
           
          San Bernardino County Sheriff's Office
          Union of American Physicians and Dentists

           Opposition 
           
          None on file
           

          Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334