BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1114|
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THIRD READING
Bill No: AB 1114
Author: Bonnie Lowenthal (D)
Amended: 8/15/11 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 06/28/11
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE APPROPRIATIONS COMMITTEE : 8-0, 08/15/11
AYES: Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley,
Price, Steinberg
NO VOTE RECORDED: Runner
ASSEMBLY FLOOR : 75-0, 05/26/11 (Consent) - See last page
for vote
SUBJECT : Mentally ill inmates: involuntary medication
SOURCE : California Department of Corrections and
Rehabilitation
DIGEST : This bill defines a new procedure under which
the California Department of Corrections and Rehabilitation
(CDCR) may obtain an order from an administrative law judge
to authorize involuntary administration of psychotropic
medication to a mentally ill inmate.
ANALYSIS : Existing law provides that a person
incarcerated in a state prison or a county jail pursuant to
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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 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
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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 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 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 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.
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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.
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.
This bill provides that an inmate is entitled to file one
motion for reconsideration following a determination that
he or she may receive involuntary medication, and may seek
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a hearing to present new evidence, upon good cause shown.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13
2013-14 Fund
New procedures for
Potential savings of up to $2,200
General
involuntary administration annually ongoing to CDCR
of psychotropic medication
SUPPORT : (Verified 8/16/11)
California Department of Corrections and Rehabilitation
(source)
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
ARGUMENTS IN SUPPORT : According to the author's office:
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.
ASSEMBLY FLOOR : 75-0, 05/26/11 (Consent)
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Carter,
Chesbro, Conway, Cook, Dickinson, Donnelly, Eng, Feuer,
Fletcher, Fong, Fuentes, Furutani, Beth Gaines, Galgiani,
Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall,
Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso,
Huffman, Jeffries, Knight, Lara, Logue, Bonnie Lowenthal,
Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell,
Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel
Pérez, Portantino, Silva, Skinner, Smyth, Solorio,
Swanson, Torres, Valadao, Wagner, Wieckowski, Williams,
Yamada, John A. Pérez
NO VOTE RECORDED: Campos, Cedillo, Davis, Gorell, Jones
RJG:nl 8/17/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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