BILL NUMBER: AB 1907 CHAPTERED
BILL TEXT
CHAPTER 814
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2012
APPROVED BY GOVERNOR SEPTEMBER 30, 2012
PASSED THE SENATE AUGUST 23, 2012
PASSED THE ASSEMBLY AUGUST 28, 2012
AMENDED IN SENATE AUGUST 6, 2012
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, 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 its 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 also make clarifying changes.
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
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 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.
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
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 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 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) for providing notice and commencement of the
hearing 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 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, or other designated
county department, 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 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, or other designated county department,
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,
or other designated county department, 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 clinicians of the county department of mental health,
or other designated county department, 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
medication beyond the initial 72 hours pending the full mental health
hearing, the county department may 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 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'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, or other
designated county department, 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,
or other designated county department, 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, or other designated county
department, 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 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, or other designated
county department, 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, or other designated
county department, 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, or
other designated county 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) 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.