BILL ANALYSIS Ó AB 1114 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1114 (Bonnie Lowenthal) As Amended August 15, 2011 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |75-0 |(May 26, 2011) |SENATE: |38-0 |(August 31, | | | | | | |2011) | ----------------------------------------------------------------- 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 AB 1114 Page 2 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 AB 1114 Page 3 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: AB 1114 Page 4 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 AB 1114 Page 5 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 Page 6 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