BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1114 (Bonnie Lowenthal) 4
As Amended April 28, 2011
Hearing date: June 28, 2011
Penal Code
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MENTALLY ILL INMATES:
INVOLUNTARY MEDICATION
HISTORY
Source: California Department of Corrections and Rehabilitation
Prior Legislation: SB 1794 (Perata) - Ch. 486, Stats. 2004
Support: American Federation of State, County and Municipal
Employees; 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)
Opposition:Disability Rights California (unless amended); Law
Firm of Rosen, Bien & Galvin (unless amended)
Assembly Floor Vote: Ayes 75 - Noes 0
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KEY ISSUE
SHOULD A NEW PROCEDURE BE ENACTED UNDER WHICH THE DEPARTMENT OF
CORRECTIONS AND REHABILITATION CAN SEEK A JUDICIAL ORDER
AUTHORIZING THE INVOLUNTARY ADMINISTRATION OF PSYCHOTROPIC
MEDICATION TO A MENTALLY ILL INMATE?
PURPOSE
The purpose of this bill is to define a new procedure under
which the Department of Corrections and Rehabilitation may
obtain an order from an administrative law judge to authorize
involuntary administration of psychotropic medication to a
mentally ill inmate.
Existing law provides that a person incarcerated in a state
prison or a county jail pursuant to Penal Code section 1170,
subdivision (h), may be deprived of such rights, and only such
rights, as is reasonably related to legitimate penological
interests. (Pen. Code § 2600.)
Existing law only permits the involuntary administration of
psychotropic medication to a prisoner where the process
specified in the permanent injunction in the matter of Keyhea v.
Rushen (1986) 178 Cal. App. 3d 526, has been followed. (Pen
Code § 2600.) The Keyhea injunction does and provides the
following:
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.
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.
Prohibits the administration of involuntary medication
to inmates in excess of 10 days after the initial
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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.
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.
The court order authorizing involuntary medication
expires in 180 days (approximately six months) 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.
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.
This bill deletes the provision of state law that expressly
requires the California Department of Corrections and
Rehabilitation (CDCR), in administering involuntary psychotropic
medication to inmates, to abide by the permanent injunction in
Keyhea v. Rushen (1986) 178 Cal. App. 3d 526.
This bill provides that if a psychiatrist determines that an
inmate should be treated with 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:
The inmate has a serious mental disorder, and that as a
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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.
The inmate is provided a hearing before an
administrative law judge (ALJ).
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.
The inmate and counsel are provided with written notice
of the hearing, as specified, at least 21 days prior to the
hearing.
An administrative law judge determines that involuntary
medication is warranted by clear and convincing evidence,
as specified.
The history of the inmate's mental disorder shall be
considered by the ALJ.
This bill provides that nothing in this act is intended to
prohibit a physician from taking appropriate action in an
emergency, as specified below:
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 five days after the
inmate has been given counsel and notice of the action,
unless CDCR first obtains an order from an ALJ authorizing
the continuance of medication beyond five days.
An order may be issued ex parte (without presence of the
other party) 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.
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CDCR must serve the inmate and counsel written notice
within 72 hours of commencing medication, except as
provided.
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 for inmates contesting
involuntary administration on a nonemergency basis.
This bill 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
his or her informed consent, or CDCR follows specified
procedures for a renewal hearing.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
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three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
In the 1986 Keyhea decision, the court issued an
injunction directing that prisoners subject to
involuntary administration of psychotropic medication
be afforded the same rights as non-prisoners. At that
time, no statutes defined the rights of non-prisoners
concerning involuntary medication. Therefore, the
court adopted the procedures used when a court civilly
commits a person as gravely disabled or a danger to
self or others. These procedures include increasingly
stringent reviews and hearings depending on the length
of the commitment. The Keyhea injunction also adopted
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statutes that define terms utilized to determine
whether a person should be removed from society for
commitment to a mental hospital. California Penal
Code Section 2600 was amended in 1994 to place the
Keyhea injunction in statute.
AB 1114 codifies, and in some cases strengthens, the
existing due process protections. The bill ensures
that a prisoner is provided with appropriate mental
health treatment consistent with his or her rights,
including the right to counsel and the evidentiary
standard of clear and convincing evidence. The
prisoner's mental health history will be considered on
the issues of whether or not the prisoner is gravely
disabled or a danger to self or others. AB 1114
continues to authorize emergency administration of
medication, but requires CDCR to obtain an ex-parte
order if the emergency extends five days beyond
appointment of counsel. Perhaps most important,
approval of involuntary medication will be shortened
from 47 days to no more than 30 days, thereby
improving outcomes for mentally ill inmates.
2. United States Supreme Court Decision Setting Constitutional
Requirements in Cases of Involuntary Administration of
Psychotropic Medication to Prison Inmates
In Washington v. Harper (1990) 494 U.S. 210, the U.S. Supreme
Court considered whether or not involuntary medication of a
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state prison inmate with antipsychotic<1> medication was
consistent with due process guarantees under the Fourteenth
Amendment. The substantive due process issue involved balancing
the rights of the inmate to refuse medication against the
interests of the state in managing prisons and prisoners. (Id,
at pp. 224-225.) The Court found that the state had a
legitimate interest in protecting the inmate and other inmates
from harm, and involuntarily medicating the defendant under
limited circumstances was reasonably related to that interest.
(Id. at 225.) The procedural due process issue concerns the
fairness of the process for determining if the inmate should be
medicated and how that decision should be implemented. (Id., at
pp. 215-216.)
The court held that due process requires the following: First,
if a psychiatrist determines that the inmate should be treated
with antipsychotic medication, but the inmate does not consent,
the state may involuntary medicate the inmate only upon a
finding that he or she has a mental disorder, and is gravely
disabled or poses a danger to self or others. (Id., at p. 215.)
Second, the inmate is entitled to a hearing before a committee
of health professionals not involved in his or her treatment to
determine if the inmate suffers from a mental disorder and is
gravely disabled or dangerous. (Ibid.) Third, the inmate is
entitled to at least 24-hour notice of the hearing, a statement
of diagnosis and a staff explanation of why the medication is
necessary. (Id., at p. 216.) At the hearing, the inmate is
entitled to present evidence, cross-examine staff witnesses. He
or she is also entitled to the assistance of a lay advisor who
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<1> This bill uses the term "psychotropic" medication. As in
other cases, the Supreme Court uses the term "antipsychotic"
medication to describe medication used to treat seriously
mentally ill persons. (Washington v. Harper, supra, 494 U.S. at
p. 213.) Psychotropic medication has a more general meaning of
a drug that affects a person's mental state. (New Oxford Dict.
Oxford Univ. Press, 2005) Psychosis is a state of mental
illness so serious that the sufferer has lost contact with
external reality. (Ibid.) The Keyhea injunction uses both of
the terms "antipsychotic" medication and "psychotropic"
medication.
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has not been involved in the inmate's case, but understands the
psychiatric issues. (Ibid.) Fourth, there must be periodic
review of the order. (Ibid.)
3. Keyhea Injunction and Codification of the Injunction into
Statute
In Keyhea v. Rushen (1986) 178 Cal. App. 3d 526, the court held
that equal protection requires that prisoners subject to
involuntary psychotropic medication be afforded the same rights
as non-prisoners. The Keyhea injunction essentially requires
that the grounds and procedures for involuntarily medicating
inmates must be equivalent to those applicable to long term
civil commitments of non-inmates. This requires, for example,
that a prisoner must be gravely disabled (unable to care for
himself or herself) for CDCR to obtain an order authorizing
involuntary treatment of the inmate with psychotropic medication
for one year. The inmate must be a danger to self or others to
allow CDCR to obtain an order for involuntary medication for six
months.
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 a mentally ill inmate. In 1994, the
Legislature codified the Keyhea injunction in Penal Code Section
2600.
4. Comparison of Keyhea Process With AB 1114 Process
Involuntary Medication in an Emergency
Under both schemes, physicians may treat an inmate in an
emergency, including the involuntary administration of
medication for up to 72 hours.
Certification, Certification Review Hearing and Formal
Administrative Hearing
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Under Keyhea, the initial involuntary administration of
medication is prohibited in excess of three days unless prison
staff has certified that the inmate is still either both gravely
disabled and incompetent to make medication decisions or a
danger to self or others. A certification review hearing shall
be held within 10 days. At the hearing, the inmate has the
right to assistance by an attorney or advocate and the right to
present evidence. Unless the hearing officer finds the
certification is supported by probable cause, involuntarily
medication must cease.
Under both Keyhea and this bill, the inmate is entitled to a
formal hearing before an ALJ on the issue of non-emergency
involuntary medication. The grounds for involuntary medication
must be proved by clear and convincing evidence. The formal
Keyhea hearing is typically not held until the 47th day after
involuntary medication is initiated.
This bill eliminates the Keyhea certification review process.
Instead, the bill requires a formal adversarial hearing before
an ALJ no later than 21 days after administration of emergency
medication. If emergency medication is not administered, the
hearing must be held within 30 days. CDCR must obtain an order
from an ALJ if it seeks to continue emergency medication for
more than five days after an attorney has been appointed for the
inmate.
Length of Authorization for an Order
Under Keyhea, an ALJ's order for involuntary medication lasts
six months if an inmate is a danger to self or others and one
year if the inmate is gravely disabled. Under this bill, all
orders authorizing involuntary medication are valid for one
year.
Renewal of Existing Orders Allowing Involuntary Medication
Under Keyhea, CDCR must reinitiate the entire process every six
months or year, depending on whether the inmate is dangerous of
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gravely disabled respectively.
This bill requires CDCR to file a renewal petition at least 21
days before expiration of the current order. The formal hearing
shall be before expiration of the current order. The bill
requires the ALJ to decide by clear and convincing evidence that
the inmate would revert to the disabling or dangerous state if
medication is not continued.
5. Challenging the ALJ's Involuntary Medication Order; Concerns
about Rehearing on the Issue of the Necessity for Medication
CDCR and interested parties have been discussing the grounds and
procedures under which inmates or CDCR could challenge an
involuntary medication order. An inmate may seek an order to
end involuntary administration of medication in two ways: 1)
The inmate can file either
a writ of habeas corpus or administrative mandate. 2) Keyhea
specifically authorizes an inmate to seek a new administrative
hearing on the grounds that he or she is no longer gravely
disabled or dangerous.
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Writ of Mandate or Writ of Habeas Corpus
A writ of mandate - as authorized by Code of Civil Procedure
Section 1094.5 - is available to challenge the order of
administrative law judges in numerous contexts. Habeas corpus
is procedure for a person to challenge any unlawful
incarceration or an equivalent state restriction.
CDCR has recently proposed that the bill be amended to require
that inmates be informed of the right to file a writ of habeas
corpus or a writ of administrative mandate. Disability Rights
California (DRC) and counsel for mentally ill inmates in the
ongoing prison receivership litigation agree that the
notification of the right to file a writ of habeas corpus or
administrative mandate should be included in the bill.
SHOULD THE BILL BE AMENED TO REQUIRE THAT INMATES WHO ARE
INVOLUNTARY ADMINISTERED PSYCHOTROPIC MEDICATION HAVE THE RIGHT
TO FILE A PETITION FOR WRIT OF HABEAS CORPUS OR A WRIT OF
ADMINISTRATIVE MANDAMUS TO CHALLENGE THE ORDER FOR INVOLUNTARY
MEDICATION?
Appeal or Rehearing of the Involuntary Medication Order
The sponsor and the interested parties disagree about whether or
not an inmate should have the right to seek an administrative
rehearing of the ALJ's decision authorizing involuntary
medication. Keyhea allows an inmate to obtain rehearing of the
grounds for involuntary administration of medication. In such a
rehearing, an inmate could argue, for example, that he is no
longer gravely disabled or that he is no longer a danger to self
or others. The rehearing right can only be exercised once every
six months.
CDCR has proposed, instead, that an inmate and CDCR be granted
what is essentially a right to appeal the ALJ's order and to
possibly obtain some form of rehearing of the medication issue.
In particular, CDCR proposes that within 30 days of the order,
the inmate or CDCR could file a petition for rehearing with the
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Office of Administrative Hearings (OAH). The grounds for relief
would be that the ALJ based the order on a mistake of law or
fact. If the petition is granted, the OAH would determine if it
could correct the error itself or must remand the matter to an
ALJ for an evidentiary hearing within 21 days<2>.
Disability Rights California (DRC) has requested an addition to
the proposed CDCR amendment. DRC's proposal reads: "Either
party may also obtain a rehearing for good cause
shown." It is unclear how this provision would be implemented.
A court interpreting this provision would likely conclude that
"good cause" means something other than a mistake of law or
fact.
In their letter stating their opposition to the bill unless it
is amended, DRC argued that the right to rehearing set out in
the Keyhea injunction<3> should be placed into this bill. The
provision requested in the DRC letter would specifically give
the inmate the right to a rehearing, once per six-month period,
on the issue of whether it is still necessary to involuntarily
medicate the inmate because he or she is gravely disabled or
dangerous.
CDCR has informed Committee staff that the DRC request would be
too burdensome for the administrative hearing system. Most
inmates could not meet the burden of establishing that
medication is no longer necessary. Still, OAH would have to
review and reply to each request. CDCR and the Office of
Administrative Hearings argue that inmates have more than
adequate remedies available through a petition for habeas corpus
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<2> This process is essentially a hybrid of an appeal - which
essentially involves review of claimed legal errors, and a
rehearing - which would involve a new evaluation of the relevant
evidence on the legal issue.
<3> The injunction provides: "The prisoner Ýmay] petition the
court for a rehearing to contest whether he presently is a
danger to others, a danger to self, gravely disabled, or
incompetent to refuse medication. After the filing of the first
petition for rehearing, no further petition for rehearing shall
be submitted for a period of six months."
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or a petition for administrative mandate. (See Comment 5 for a
discussion of such remedies.)
SHOULD THE BILL BE AMENDED TO PROVIDE THAT AN INMATE OR CDCR MAY
APPEAL OR OBTAIN REHEARING OF AN ADMINISTRATIVE LAW JUDGE'S
RULING ON THE ISSUE OF INVOLUNTARY MEDICATION OF AN INMATE?
WHAT FORM SHOULD A RIGHT TO APPEAL OR REHEARING TAKE?
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