BILL ANALYSIS Ó
AB 1114
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CONCURRENCE IN SENATE AMENDMENTS
AB 1114 (Bonnie Lowenthal)
As Amended August 15, 2011
Majority vote
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|ASSEMBLY: |75-0 |(May 26, 2011) |SENATE: |38-0 |(August 31, |
| | | | | |2011) |
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Original Committee Reference: PUB. S.
SUMMARY : Provides that an inmate of the California Department of
Corrections and Rehabilitation (CDCR) shall not be administered
psychotropic medications without his or her informed consent or with
a noticed hearing, as specified.
The Senate amendments state that an inmate is entitled to one motion
for reconsideration following the determination that he or she may
be involuntarily medicated and may seek a new hearing to present new
evidence upon a showing of good cause. Additionally, the inmate
must be informed of this right in writing. If this bill and AB 109
(Budget Committee), Chapter 15, Statutes of 2011, both become
operative, an inmate sentenced to county jail for specified felonies
shall be subject to the procedures as inmates in a California
Department of Corrections and Rehabilitation (CDCR) facility for
involuntary administration of psychotropic medications.
AS PASSED BY THE ASSEMBLY , this bill provided that an inmate of CDCR
shall not be administered psychotropic medications without his or
her informed consent or with a noticed hearing, as specified.
Specifically, this bill :
1)Stated than an individual imprisoned in a state prison may be
deprived of rights during the period of incarceration, but only as
reasonably related to legitimate penological interests.
2)Stated that no person described in this section will be
administered any psychotropic medications without his or her
informed consent unless he or she meets the specified requirements
and specified procedures are followed.
3)Stated that if a psychiatrist determines than an inmate should be
treated with a psychotropic medication, but the inmate does not
consent, the inmate may be treated on a nonemergency basis only if
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all the following conditions have been met:
a) A psychiatrist has determined that the inmate has a serious
mental disorder;
b) A psychiatrist has determined 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 himself or herself or others;
c) A psychiatrist has prescribed one or more psychotropic
medications for the treatment of the inmate's disorder, has
considered the risks, benefits, and treatment alternatives to
involuntary medication, and has determined that the treatment
alternatives to involuntary medication are unlikely to meet the
needs of the inmate;
d) 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;
e) The inmate is provided counsel at least 21 days before the
hearing;
f) The hearing shall be held not more than 30 days after the
filing of the notice with the Office of Administrative
Hearings, unless counsel for the inmate agrees to extend the
date of the hearing;
g) The inmate and counsel are provided with written notice of
the hearing at least 21 days prior to the hearing. The written
notice must include the following;
i) Set forth the diagnosis, the factual basis for the
diagnosis, the basis upon which psychotropic medication is
recommended, the expected benefits of the medication, any
potential side effects and risks to the inmate from the
medication, and any alternatives to treatment with the
medication; and,
ii) Advise the inmate of the right to be present at the
hearing, the right to be represented by counsel at all stages
of the proceedings, the right to present evidence, and the
right to cross-examine witnesses. Counsel of the inmate
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shall have access to all medical records and files of the
inmates, but shall not have access to the confidential
section of the inmate's central file which contains materials
unrelated to the medical treatment.
h) An administrative law judge (ALJ) determines by clear and
convincing evidence that the inmate has a mental disorder, 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 is not
medicated, that there is no less intrusive alternative to
involuntary medication, and that the medication is in the
inmate's best medical interest; and,
i) 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 when it
has direct bearing on the determination of whether the inmate
is a danger to self or others, or is gravely disabled and
incompetent to refuse medication as a result of a mental
disorder.
4)Stated that nothing in this section is intended to prohibit a
physician from taking appropriate action in an emergency.
5)Stated that an emergency exists when there is a sudden and marked
change in the inmate's mental condition so that action is
immediately necessary for the preservation of life or the
prevention of serious bodily harm to the inmate or others, and if
it is impractical, due to the seriousness of the emergency, to
first obtain informed consent.
6)Stated that if psychotropic medication is administered in an
emergency, the medication shall only be that which is required to
treat the emergency condition and shall be administer for only as
long as the emergency exists.
7)Stated that if psychotropic medication is administered to an
inmate in an emergency, CDCR will serve the inmate and counsel
written notice within 72 hours of commencing medication, unless
the inmate gives informed consent to continue the medication or
the psychiatrist determines that the psychotropic medication is
not necessary and the administration of the medication is
discontinued. If written notice is given, it must include the
following:
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a) Set forth the diagnosis, the factual basis for the
diagnosis, the basis upon which psychotropic medication is
recommended, the expected benefits of the medication, any
potential side effects and risks to the inmate from the
medication, and any alternatives to treatment with the
medication; and,
b) Advise the inmate of the right to be present at the hearing,
the right to be represented by counsel at all stages of the
proceedings, the right to present evidence, and the right to
cross-examine witnesses. Counsel of the inmate shall have
access to all medical records and files of the inmates, but
shall not have access to the confidential section of the
inmate's central file which contains materials unrelated to the
medical treatment.
8)Required that if psychotropic medication is being administered to
an inmate in an emergency a hearing before an administrative law
judge must commence within 21 days of the filing of the service of
the notice, unless counsel for an inmate agrees to a longer period
of time. The involuntary medication may continue if:
a) An ALJ determines by clear and convincing evidence that the
inmate has a mental disorder, 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 is not medicated, that there is no
less intrusive alternative to involuntary medication, and that
the medication is in the inmate's best medical interest; and,
b) 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 when it
has direct bearing on the determination of whether the inmate
is a danger to self or others, or is gravely disabled and
incompetent to refuse medication as a result of a mental
disorder.
9)Stated that the determination made by the administrative law judge
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 to the medication.
10)Stated that the involuntary medication of an inmate, either on an
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emergency or nonemergency basis, must discontinue one year from
the date of determination, unless the inmate gives her or her
informed consent or the following occurs:
a) CDCR files notice with the Office of Administrative Hearings
and serves written notice on the inmate and his or her counsel.
The written notice must include the following:
i) Set forth the diagnosis, the factual basis for the
diagnosis, the basis upon which psychotropic medication is
recommended, the expected benefits of the medication, any
potential side effects and risks to the inmate from the
medication, and any alternatives to treatment with the
medication;
ii) Advise the inmate of the right to be present at the
hearing, the right to be represented by counsel at all stages
of the proceedings, the right to present evidence, and the
right to cross-examine witnesses. Counsel of the inmate
shall have access to all medical records and files of the
inmates, but shall not have access to the confidential
section of the inmate's central file which contains materials
unrelated to the medical treatment; and,
iii) Specify the request is for a renewal of an involuntary
medication order.
b) The request for the renewal hearing must be filed and serves
no later than 21 days prior to the expiration of the current
order authorizing involuntary medication;
c) An ALJ determines by 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. No new acts need be alleged
or proven.
11)Stated that renewal orders are valid one year from the date of
the hearing.
FISCAL EFFECT : According to the Senate Appropriations Committee:
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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
COMMENTS : According to the author, "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."
Please see the policy committee analysis for a full discussion of
this bill.
Analysis Prepared by : Milena Nelson / PUB. S. / (916) 319-3744
FN: 0001901