BILL NUMBER: AB 1907 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 19, 2012
AMENDED IN ASSEMBLY MAY 25, 2012
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: psychiatric
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.
Existing law allows a physician to administer psychotropic
medication to a prison inmate during an emergency consisting of 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. If psychotropic medication is
administered during an emergency, existing law authorizes the
medication to be administered for no more than 5 days.
This bill would contain findings and declarations to the effect
that it is the intent of the Legislature in enacting specified
legislation, which was previously enacted, to terminate the permanent
injunction stemming from the decision in Keyhea v. Rushen providing
a process for the involuntary administration of psychotropic
medication to prisoners, and to replace those provisions with the
provisions previously enacted, as specified.
This bill would 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. If psychiatric medication is administered on an
emergency or interim basis, the bill would require the department to
give notice to the inmate of it's intention to seek an ex parte order
if the situation necessitates the continuation of medication beyond
the initial 72 hours pending a full mental health hearing, as
provided. 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 available to
counties for inmates in a county jail, 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature, in amending
Section 2600 and enacting Section 2602 in Assembly Bill 1114 of the
2011-12 Regular Session, to terminate the permanent injunction
stemming from the decision in Keyhea v. Rushen, 178 Cal.App.3d 536,
and to replace the provisions of the injunction with the provisions
contained within Section 2602 of the Penal Code.
SEC. 2. 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 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 or interim basis as
provided in subdivision (d).
(c) The Department of Corrections and Rehabilitation 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.
(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 an administrative law
judge.
(6) The inmate is provided counsel at least 21 days prior to the
hearing, unless emergency or interim 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
or in terim 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 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
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 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 Failure of the department to provide
timely or adequate notice pursuant to this section shall be excused
only upon a showing of good cause and the absence of prejudice to the
inmate. In making this determination, the administrative law judge
may consider factors such as including,
but not limited to, 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 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 department'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 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 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 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 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 pursuant to the conditions
specified in this subdivision , the inmate shall be entitled to
and be given the same due process protections as specified in
subdivision (c). The department shall prove the same elements
supporting the involuntary administration of 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 shall file with the Office of Administrative Hearings,
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 department shall provide inmate
shall be entitled to, and shall be given, 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 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).
(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.
(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. 3. 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 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 or interim 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 superior court
judge, a court-appointed commissioner or referee, or a
court-appointed hearing officer , as specified in subdivision
(c) of Section 5334 of the Welfare and Institutions Code .
(6) The inmate is provided counsel at least 21 days prior to the
hearing, unless emergency or interim 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
or interim 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 appeal the determination to the
superior court or the court of appeal as specified in subdivisions
(e) and (f) of Section 5334 of the Welfare and Institutions Code
, 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 superior court judge, court-appointed
commissioner or referee, or court-appointed hearing officer has
authorized treatment with involuntary medication.
(8) A superior court judge, a court-appointed commissioner or
referee, or 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 superior court judge, court-appointed commissioner or
referee, or 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 may , in lieu of taking the
inmate to a facility for treatment pursuant to Section 4011.6,
seek to continue the medication by giving 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. Treatment of the inmate in a facility pursuant to
Section 4011.6 shall not be required in order to continue medication
under this subdivision unless the treatment is otherwise medically
necessary. 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 superior court
judge, a court-appointed commissioner or referee, or 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) If the county elects to seek an ex parte order pursuant to
this subdivision, 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 or interim 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 superior court
judge, court-appointed commissioner or referee, or
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
inmate shall be entitled to, and shall be given,
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.