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