BILL ANALYSIS Ó
AB 1114
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1114 (Lowenthal) - As Amended: April 28, 2011
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. 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 of peace officers,
parole officers, psychiatrists, and prisoner advocates. After
two previous opponents formally removed their opposition, there
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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
specified conditions are 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 or is a
danger to self or others; and does not have the capacity to
refuse treatment with psychotropic medications.
b) The inmate is provided a hearing before an
administrative law judge (ALJ).
c) The inmate is provided counsel at least 21 days before
the hearing, which shall not be held more than 30 days
after the filing of the notice of hearing.
d) The inmate and counsel are provided with written notice
of the hearing at least 21 days prior to the hearing that
includes specified information about the diagnosis and the
inmate's due process rights.
e) An administrative law judge determines that involuntary
medication is warranted by clear and convincing evidence,
as specified, and that the historical course of the
inmate's mental disorder shall be considered in the above
determination.
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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 5 days after the
written notice and provision of counsel, unless CDCR first
obtains an order from an ALJ authorizing the continuance of
medication beyond 5 days.
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 administrative law hearing 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, as
specified above.
5)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.
6)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) above.)
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
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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
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.
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. The hearing officer will determine if there
is probable cause to support the certification, 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, in which
they are entitled to legal counsel, appointed or otherwise.
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.
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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 recently
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.
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, this bill codifies
the existing process under the Keyhea injunction and
ensures that the prisoner is provided with appropriate
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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 self 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
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 an 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
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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
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.
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
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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.
One of the central features of this bill is the elimination of
the certification and certification review hearing under the
current Keyhea process. Instead, the bill 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. The bill was recently amended to require
CDCR to obtain an order from an ALJ (including an ex parte
order) if it seeks to authorize the continuance of emergency
medication more than 5 days after the written notice and
provision of counsel. A period of 5 days is intended to provide
CDCR with a reasonable amount of time to obtain an order from
the ALJ, and ensures that the inmate has already been provided
counsel by the time CDCR seeks continuance of involuntary
medication. If the order 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
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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. This
requirement is intended to give the ALJ even more relevant
information to help make this crucial determination about the
inmate.
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 (depending on the
psychiatric determination) to continue its authority to
involuntarily medicate an inmate who was subject to a previous
order.
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
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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.
This Bill Balances Due Process Protections With An Expedited
Procedure That Potentially Benefits Inmates. 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 and increase due process protections within a revised
procedural framework that does not, among other things, include
provisions for a certification review hearing. They 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, the
certification review hearing is of limited utility to inmates
because it invariably 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. The author envisions that the
improvements made by this bill, if enacted, will result in
earlier initiation of the review process, i.e. initiated prior
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to emergency administration of psychotropic medication, when
inmates are not involuntarily medicated (and presumably more
functional) at the time the process is triggered by notice and
provision of counsel.
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.
This Bill Seeks to Preserve Due Process When CDCR Seeks To
Extend Involuntary Medication Initiated On An Emergency Basis.
The previous version of the bill provided that psychotropic
medication administered during an emergency shall be
administered for only so long as the emergency continues to
exist (and by extension, must then be discontinued.)
Psychiatrists who contacted the Committee contend that, for
clinical reasons, these types of medications should not be used
in such a manner as to start and stop treatment within a few
days. They recommend, generally, that once started, these types
of medications should be administered with minimal interruption
as appropriate to avoid the phenomenon of "decompensating,"
which they contend is detrimental for the patient's health.
They contend that the bill should allow an avenue for CDCR and
the psychiatrist to continue involuntary administration of
emergency medication until the administrative law hearing no
later than Day 21 of the Keyhea process. Patient advocates,
including Disability Rights California (DRC) and others, contend
that any rule that authorizes the psychiatrist to prolong
involuntary medication past the point where the emergency has
ceased must be accompanied by due process protections for the
inmate, such as increased opportunity to be heard, or judicial
review of the psychiatrist's determination.
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With these considerations in mind, the author recently amended
the bill to require CDCR to obtain an order from an ALJ (which
may be obtained ex parte) if it seeks to authorize the
continuance of emergency medication past 5 days after the
written notice and provision of counsel. In addition, the bill
allows the inmate to 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
provision addresses both clinical and due process concerns,
allowing judicial review but also the possibility of continuance
of the medication upon the psychiatrist's determination.
Initial Opposition Withdrawn. 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.
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
California Psychiatric Association
Legal Services for Prisoners with Children
National Alliance on Mental Illness (NAMI)
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
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