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:









                                                                AB 1114
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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 


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