BILL NUMBER: AB 1907 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 9, 2012
INTRODUCED BY Assembly Member Bonnie Lowenthal
FEBRUARY 22, 2012
An act to amend Section 2602 of , and to add Section 2603 to,
the Penal Code, relating to inmates.
LEGISLATIVE COUNSEL'S DIGEST
AB 1907, as amended, Bonnie Lowenthal. Inmates: psychotropic
medication.
Existing law requires that no inmate be administered psychotropic
medication on a nonemergency basis without the inmate's informed
consent, unless after a noticed hearing is conducted in which an
administrative law judge determines by clear and convincing evidence
that the inmate has a mental illness or disorder, that as a result of
that illness the inmate is gravely disabled and lacks the capacity
to consent or refuse treatment or is a danger to self or others if
not medicated, that there is no less intrusive alternative to
involuntary medication, and that the medication is in the inmate's
best interest. Existing law authorizes the Department of
Corrections and Rehabilitation to seek to initiate involuntary
medication on a nonemergency basis only if specified conditions are
met, including that a psychiatrist has determined that the
inmate is gravely disabled or is a danger to self or others and does
not have the capacity to refuse treatment with psychotropic
medication.
This bill would extend these requirements
revise the provisions authorizing the Department of Corrections and
Rehabilitation to seek to initiate involuntary medication on a
nonemergency basis only if specified conditions are met by instead
requiring that the psychiatrist make a determination that the inmate
is gravely disabled and does not have the capacity to refuse
treatment with psychiatric medication, or is a danger to self or
others. The bill would delete references to psychotropic medications
throughout the provisions described above and instead refer to
psychiatric medications. The bill would also enact
provisions governing involuntary medication proceedings similar to
those described above, as revised, that would be applicable to
inmates in county jail for felony convictions that are not serious,
violent, or sexual offenses , and would, in addition, authorize
either a psychiatrist or a psychologist to make the determinations
described above. The bill would provide that, for purposes of the
provisions applicable to county inmates, the term "counsel" may
include the county patient rights advocate. The bill would also make
clarifying changes . Because this bill would place additional
burdens on local governments, it would create a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2602 of the Penal Code is amended to read:
2602. (a) Except as provided in subdivision (b), no person
sentenced to imprisonment or housed in a state prison
or to imprisonment pursuant to subdivision (h) of Section
1170 shall be administered any psychotropic
psychiatric medication without his or her prior
informed consent.
(b) If a psychiatrist determines that an inmate should be treated
with psychotropic psychiatric
medication, but the inmate does not consent, the inmate may be
involuntarily treated with the medication. Treatment may be given on
either a nonemergency basis as provided in subdivision (c), or on an
emergency basis as provided in subdivision (d).
(c) The Department of Corrections and Rehabilitation or
sheriff may seek to initiate involuntary medication on a
nonemergency basis only if all of the following conditions have been
met:
(1) A psychiatrist has determined that the inmate has a serious
mental disorder.
(2) 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 psychiatric medications or
is a danger to self or others and does not have
the capacity to refuse treatment with psychotropic medications
.
(3) A psychiatrist has prescribed one or more
psychotropic psychiatric 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 patient.
(4) The inmate has been advised of the risks and benefits of, and
treatment alternatives to, the psychotropic
psychiatric medication and refuses or is unable to consent to
the administration of the medication.
(5) The inmate is provided a hearing before an administrative law
judge.
(6) The inmate is provided counsel at least 21 days prior to the
hearing , unless emergency medication is being administered
pursuant to subdivision (d), in which case the inmate would receive
expedited access to counsel . 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.
(7) The inmate and counsel are provided with written notice of the
hearing at least 21 days prior to the hearing , unless emergency
medication is being administered pursuant to subdivision (d), in
which case the inmate would receive an expedited hearing . The
written notice shall do all of the following:
(A) Set forth the diagnosis, the factual basis for the diagnosis,
the basis upon which psychotropic psychiatric
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.
(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 for the inmate shall have access to
all medical records and files of the inmate, but shall not have
access to the confidential section of the inmate's central file which
contains materials unrelated to medical treatment.
(C) Inform the prisoner inmate of
his or her right to contest the finding of an administrative law
judge authorizing treatment with involuntary medication by filing a
petition for writ of administrative mandamus pursuant to Section
1094.5 of the Code of Civil Procedure, and his or her right to file a
petition for writ of habeas corpus with respect to any decision of
the Department of Corrections and Rehabilitation or sheriff
to continue treatment with involuntary medication after the
administrative law judge has authorized treatment with involuntary
medication.
(8) An administrative law judge determines by clear and convincing
evidence that the inmate has a mental illness or disorder, that as a
result of that illness the inmate is gravely disabled and lacks the
capacity to consent to or refuse treatment with psychotropic
psychiatric medications or is a danger to self
or others if not medicated, that there is no less intrusive
alternative to involuntary medication, and that the medication is in
the inmate's best medical interest. In the event of any
statutory notice issues with either initial or renewal filings by the
department, the administrative law judge shall hear arguments as to
why the case should be heard, and shall consider factors such as the
ability of the inmate's counsel to adequately prepare the case and to
confer with the inmate, the continuity of care, and, if applicable,
the need for protection of the inmate or institutional staff that
would be compromised by a procedural default.
(9) The historical course of the inmate's mental disorder, as
determined by available relevant information about the course of the
inmate's 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 the result of a mental disorder.
(10) An inmate is entitled to file one motion for reconsideration
following a determination that he or she may receive involuntary
medication, and may seek a hearing to present new evidence, upon good
cause shown.
(d) Nothing in this section is intended to prohibit a physician
from taking appropriate action in an emergency. An emergency exists
when there is a sudden and marked change in an 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 it is impractical, due to the seriousness of
the emergency, to first obtain informed consent. If
psychotropic psychiatric medication is
administered during an emergency, the medication shall only be that
which is required to treat the emergency condition and shall be
administered for only so long as the emergency continues to exist
, but in no event longer than five days after the written
notice and counsel are provided pursuant to subdivision (c), unless
the department or sheriff first obtains an order from an
administrative law judge authorizing the continuance of medication
beyond five days . If the Department of Corrections
and Rehabilitation's clinicians identify a situation that jeopardizes
the inmate's health or well-being as the result of a serious mental
illness, and necessitates the continuation of emergency medication
beyond the initial 72 hours pending the full mental health hearing,
the department shall give notice to the inmate and his or her counsel
of the depart ment's intention to seek an ex parte order
to allow the continuance of medication pending the full hearing. The
notice shall be served upon the inmate and counsel at the same time
the inmate is given the written notice that the involuntary
medication proceedings are being initiated and is appointed counsel
as provided in subdivision (c). The order may be issued ex
parte upon a showing that in the absence of the medication ,
there is a reasonable likelihood that the emergency is
conditions are likely to recur. The request for
an ex parte order shall be supported by an affidavit
from the psychiatrist showing specific facts. The inmate
and the inmate's appointed counsel shall have two business days to
respond to the department's ex parte request to continue interim
medication, and may present facts supported by an affidavit in
opposition to the department's request. An
administrative law judge shall review the ex parte request and shall
have three business days to determine the merits of the department's
request for an ex parte order. If an order is issued, the
psychiatrist may continue the administration of the medication until
the hearing described in paragraph (5) of subdivision (c) is held.
(1) The Department of Corrections and Rehabilitation or
sheriff shall file with the Office of Administrative
Hearings, and serve on the inmate and his or her counsel ,
the written notice described in paragraph (7) of subdivision (c)
within 72 hours of commencing medication pursuant to this
subdivision, unless either of the following occurs:
(A) The inmate gives informed consent to continue the medication.
(B) A psychiatrist determines that the psychotropic
psychiatric medication is not necessary and
administration of the medication is discontinued.
(2) If medication is being administered pursuant to this
subdivision, the hearing described in paragraph (5) of subdivision
(c) shall commence within 21 days of the filing and service of the
notice, unless counsel for an inmate agrees to a longer
different period of time.
(3) With the exception of the timeline provisions specified in
paragraphs (1) and (2) of subdivision (d) for providing notice and
commencement of the hearing in emergency situations, the inmate shall
be entitled to and be given the same due process protections as
specified in subdivision (c). The department or sheriff
shall prove the same elements supporting the involuntary
administration of psychotropic psychiatric
medication and the administrative law judge shall be required
to make the same findings described in subdivision (c).
(e) The determination that an inmate may receive involuntary
medication shall be valid for one year from the date of the
determination, regardless of whether the inmate subsequently gives
his or her informed consent.
(f) If a determination has been made to involuntarily medicate an
inmate pursuant to subdivision (c) or (d), the medication shall be
discontinued one year after the date of that determination, unless
the inmate gives his or her informed consent to the administration of
the medication, or unless a new determination is made pursuant to
the procedures set forth in subdivision (g).
(g) To renew an existing order allowing involuntary medication,
the department or sheriff shall file with the
Office of Administrative Hearings or superior court , and
shall serve on the inmate and his or her counsel, the
written notice described in paragraph (7) of subdivision (c). The
notice shall specify that the request is for a renewal
a written notice indicating the department's intent to renew the
existing involuntary medication order .
(1) The request to renew the order shall be filed and served no
later than 21 days prior to the expiration of the current order
authorizing involuntary medication.
(2) To obtain a renewal order, the The
department or sheriff shall provide the same
due process protections as specified in subdivision (c).
The department or sheriff shall prove the same elements supporting
the involuntary administration of psychotropic medication and the
administrative law judge shall be required to make the same findings
described in subdivision (c).
(3) Renewal orders shall be valid for one year from the date of
the hearing.
(4) An order renewing a prior an existing
order may shall be granted based
on clear and convincing evidence that the inmate has a serious
mental disorder that requires treatment with psychiatric
medication, and 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.
(5) If the department wishes to add a basis to an existing order,
the department shall give the inmate and the inmate's counsel notice
in advance of the hearing via a renewal notice or supplemental
petition. Within the renewal notice or supplemental petition, as
described in subdivision (g), the department shall specify what
additional basis is being alleged and what qualifying conduct within
the past year supports that additional basis. The department shall
prove the additional basis and conduct by clear and convincing
evidence at a hearing as specified in subdivision (c).
(5)
(6) The hearing on any petition to renew an order for
involuntary medication shall be conducted prior to the expiration of
the current order.
(h) Pursuant to Section 5058, the Department of Corrections and
Rehabilitation shall adopt regulations to fully implement this
section.
(h)
(i) In the event of a conflict between the provisions
of this section and the Administrative Procedure Act (Chapter 4.5
(commencing with Section 11400) of Part 1 of Division 3 of the
Government Code), this section shall control.
SEC. 2. Section 2603 is added to the
Penal Code , to read:
2603. (a) Except as provided in subdivision (b), no person
sentenced to imprisonment in a county jail pursuant to subdivision
(h) of Section 1170 shall be administered any psychiatric medication
without his or her prior informed consent.
(b) If a psychiatrist determines that an inmate should be treated
with psychiatric medication, but the inmate does not consent, the
inmate may be involuntarily treated with the medication. Treatment
may be given on either a nonemergency basis as provided in
subdivision (c), or on an emergency basis as provided in subdivision
(d).
(c) A county department of mental health may seek to initiate
involuntary medication on a nonemergency basis only if all of the
following conditions have been met:
(1) A psychiatrist or psychologist has determined that the inmate
has a serious mental disorder.
(2) A psychiatrist or psychologist 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 psychiatric
medications, or is a danger to self or others.
(3) A psychiatrist has prescribed one or more psychiatric
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 patient.
(4) The inmate has been advised of the risks and benefits of, and
treatment alternatives to, the psychiatric medication and refuses, or
is unable to consent to, the administration of the medication.
(5) The inmate is provided a hearing before a court-appointed
hearing officer.
(6) The inmate is provided counsel at least 21 days prior to the
hearing, unless emergency medication is being administered pursuant
to subdivision (d), in which case the inmate would receive expedited
access to counsel. The hearing shall be held not more than 30 days
after the filing of the notice with the superior court, unless
counsel for the inmate agrees to extend the date of the hearing.
(7) The inmate and counsel are provided with written notice of the
hearing at least 21 days prior to the hearing, unless emergency
medication is being administered pursuant to subdivision (d), in
which case the inmate would receive an expedited hearing. The written
notice shall do all of the following:
(A) Set forth the diagnosis, the factual basis for the diagnosis,
the basis upon which psychiatric 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.
(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 for the inmate shall have access to
all medical records and files of the inmate, but shall not have
access to the confidential section of the inmate's central file which
contains materials unrelated to medical treatment.
(C) Inform the inmate of his or her right to contest the finding
of the court-appointed hearing officer authorizing treatment with
involuntary medication by filing a petition for writ of
administrative mandamus pursuant to Section 1094.5 of the Code of
Civil Procedure, and his or her right to file a petition for writ of
habeas corpus with respect to any decision of the county department
of mental health to continue treatment with involuntary medication
after the court-appointed hearing officer has authorized treatment
with involuntary medication.
(8) A court-appointed hearing officer determines by clear and
convincing evidence that the inmate has a mental illness or disorder,
that as a result of that illness the inmate is gravely disabled and
lacks the capacity to consent to or refuse treatment with psychiatric
medications or is a danger to self or others if not medicated, that
there is no less intrusive alternative to involuntary medication, and
that the medication is in the inmate's best medical interest. In the
event of any statutory notice issues with either initial or renewal
filings by the county department of mental health, the
court-appointed hearing officer shall hear arguments as to why the
case should be heard, and shall consider factors such as the ability
of the inmate's counsel to adequately prepare the case and to confer
with the inmate, the continuity of care, and, if applicable, the need
for protection of the inmate or institutional staff that would be
compromised by a procedural default.
(9) The historical course of the inmate's mental disorder, as
determined by available relevant information about the course of the
inmate's 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 the result of a mental disorder.
(10) An inmate is entitled to file one motion for reconsideration
following a determination that he or she may receive involuntary
medication, and may seek a hearing to present new evidence, upon good
cause shown.
(d) Nothing in this section is intended to prohibit a physician
from taking appropriate action in an emergency. An emergency exists
when there is a sudden and marked change in an 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 it is impractical, due to the seriousness of
the emergency, to first obtain informed consent. If psychiatric
medication is administered during an emergency, the medication shall
only be that which is required to treat the emergency condition and
shall be administered for only so long as the emergency continues to
exist. If the county department of mental health's clinicians
identify a situation that jeopardizes the inmate's health or
well-being as the result of a serious mental illness, and
necessitates the continuation of emergency medication beyond the
initial 72 hours pending the full mental health hearing, the county
department shall give notice to the inmate and his or her counsel of
its intention to seek an ex parte order to allow the continuance of
medication pending the full hearing. The notice shall be served upon
the inmate and counsel at the same time the inmate is given the
written notice that the involuntary medication proceedings are being
initiated and is appointed counsel as provided in subdivision (c).
The order may be issued ex parte upon a showing that, in the absence
of the medication, there is a reasonable likelihood that the
emergency conditions are likely to recur. The request for an ex parte
order shall be supported by an affidavit from the psychiatrist or
psychologist showing specific facts. The inmate and the inmate's
appointed counsel shall have two business days to respond to the
county department of mental health's ex parte request to continue
interim medication, and may present facts supported by an affidavit
in opposition to the department's request. A court-appointed hearing
officer shall review the ex parte request and shall have three
business days to determine the merits of the department's request for
an ex parte order. If an order is issued, the psychiatrist may
continue the administration of the medication until the hearing
described in paragraph (5) of subdivision (c) is held.
(1) The county department of mental health shall file with the
superior court, and serve on the inmate and his or her counsel, the
written notice described in paragraph (7) of subdivision (c) within
72 hours of commencing medication pursuant to this subdivision,
unless either of the following occurs:
(A) The inmate gives informed consent to continue the medication.
(B) A psychiatrist determines that the psychiatric medication is
not necessary and administration of the medication is discontinued.
(2) If medication is being administered pursuant to this
subdivision, the hearing described in paragraph (5) of subdivision
(c) shall commence within 21 days of the filing and service of the
notice, unless counsel for the inmate agrees to a different period of
time.
(3) With the exception of the timeline provisions specified in
paragraphs (1) and (2) for providing notice and commencement of the
hearing in emergency situations, the inmate shall be entitled to and
be given the same due process protections as specified in subdivision
(c). The county department of mental health shall prove the same
elements supporting the involuntary administration of psychiatric
medication and the court-appointed hearing officer shall be required
to make the same findings described in subdivision (c).
(e) The determination that an inmate may receive involuntary
medication shall be valid for one year from the date of the
determination, regardless of whether the inmate subsequently gives
his or her informed consent.
(f) If a determination has been made to involuntarily medicate an
inmate pursuant to subdivision (c) or (d), the medication shall be
discontinued one year after the date of that determination, unless
the inmate gives his or her informed consent to the administration of
the medication, or unless a new determination is made pursuant to
the procedures set forth in subdivision (g).
(g) To renew an existing order allowing involuntary medication,
the county department of mental health shall file with the superior
court, and shall serve on the inmate and his or her counsel, a
written notice indicating the department's intent to renew the
existing involuntary medication order.
(1) The request to renew the order shall be filed and served no
later than 21 days prior to the expiration of the current order
authorizing involuntary medication.
(2) The county department of mental health shall provide the same
due process protections as specified in subdivision (c).
(3) Renewal orders shall be valid for one year from the date of
the hearing.
(4) An order renewing an existing order shall be granted based on
clear and convincing evidence that the inmate has a serious mental
disorder that requires treatment with psychiatric medication, and
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.
(5) If the county department of mental health wishes to add a
basis to an existing order, it shall give the inmate and the inmate's
counsel notice in advance of the hearing via a renewal notice or
supplemental petition. Within the renewal notice or supplemental
petition, as described in subdivision (g), the county department of
mental health shall specify what additional basis is being alleged
and what qualifying conduct within the past year supports that
additional basis. The county department of mental health shall prove
the additional basis and conduct by clear and convincing evidence at
a hearing as specified in subdivision (c).
(6)
The hearing on any petition to renew an order for involuntary
medication shall be conducted prior to the expiration of the current
order.
(h) In the event of a conflict between the provisions of this
section and the Administrative Procedure Act (Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of the Government Code),
this section shall control.
(i) For purposes of this section, "counsel" may include the county
patient rights advocate.
SEC. 2. SEC. 3. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.