BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1907
                                                                  Page  1

          Date of Hearing:   April 10, 2012
          Counsel:                Milena Blake


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 1907 (Lowenthal) - As Amended:  April 9, 2012
           

          SUMMARY  :   Provides that no individual sentenced to imprisonment 
          in county jail for specified felonies shall be administered any 
          psychiatric medication without his or her prior informed 
          consent, unless specified circumstances are met.   Additionally, 
          makes conforming changes to the process by which inmates of the 
          California Department of Corrections and Rehabilitation (CDCR) 
          can be involuntarily medicated.   Specifically,  this bill  :  

          1)States that a county department of mental health may seek to 
            initiate the involuntary psychiatric medication of an 
            individual sentenced to imprisonment in county jail for 
            specified felonies if all of the following conditions have 
            been met: 

             a)   A psychiatrist or psychologist has determined that the 
               inmate has a serious mental disorder.

             b)   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 medication, or is a danger to self or 
               others.

             c)   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.

             d)   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.









                                                                  AB 1907
                                                                  Page  2

             e)   The inmate is provided a hearing before a 
               court-appointed hearing officer.

             f)   The inmate is provided counsel at least 21 days prior to 
               the hearing, unless emergency medication is being 
               administered, as specified, 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.  

             g)   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, as 
               specified, in which case the inmate would receive an 
               expedited hearing.  The written notice shall do all the 
               following:

               i)     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.  

               ii)    Advise the inmate of his or her 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 confidential sections of the inmate's 
                 central file which contain materials unrelated to medical 
                 treatment.

               iii)   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 writ of administrative mandamus, as specified, 
                 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.  









                                                                  AB 1907
                                                                  Page  3

             h)   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.  

             i)   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 a result 
               of the mental disorder.  

             j)   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.  

          2)States that nothing in this section is intended to prohibit a 
            physician from taking appropriate action in an emergency.  

          3)Defines "emergency" as 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.  

          4)States that if psychiatric medication is administered in an 
            emergency, the medication shall only be that which is required 
            to treat the emergency condition and shall be administered for 








                                                                  AB 1907
                                                                  Page  4

            only so long as the emergency continues to exist.  

          5)Requires that, 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 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 must be served upon the inmate and 
            counsel at the same time the inmate is given written notice 
            that the involuntary medication proceedings are being 
            initiated and is appointed counsel.  

          6)Allows an ex parte order for the continued involuntary 
            medication of the inmate to be issued upon a showing that, in 
            the absence of the medication, there is a reasonable 
            likelihood that the emergency conditions are likely to 
            reoccur.

          7)Requires the ex parte order for the continued involuntary 
            medication of the inmate be supported by an affidavit from the 
            psychiatrist or psychologist showing specific facts.

          8)Gives the inmate and the inmate's counsel 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.  

          9)Requires a court-appointed hearing officer to review the ex 
            parte request and shall have three business days to determine 
            the merits of the department's request.  

          10)If the ex parte order for the continued involuntary 
            medication of the inmate is issued, the psychiatrist may 
            continue the administration of the medication until a hearing 
            before a court- appointed hearing officer.  

          11)Requires that, if an inmate is being involuntarily 
            administered psychiatric medication on an emergency basis, the 
            county department of mental health file with the superior 
            court, and serve on the inmate and his or her counsel, written 
            notice unless the inmate gives informed consent to continue 
            the medication or a psychiatrist determines that the 








                                                                  AB 1907
                                                                  Page  5

            psychiatric medication is not necessary and administration of 
            the medication is discontinued.  If written notice is given, 
            it must do 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 confidential 
               sections of the inmate's central file which contain 
               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 writ of 
               administrative mandamus, as specified, 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.

          12)Requires that, if an inmate is being involuntarily 
            administered psychiatric medication on an emergency basis, a 
            hearing before a court-appointed hearing officer commence 
            within 21 days of the filing and service of notice, unless 
            counsel for the inmate agrees to a different time.

          13)Specifies that an inmate being involuntarily administered 
            psychiatric medication on an emergency basis has the same due 
            process protections as an inmate being involuntarily medicated 
            under a court order, the county department of mental health 
            must prove the same elements supporting involuntary 
            medication, and the court-ordered hearing officers is required 
            to make the same findings related to involuntary medication.  

          14)States that the determination that an inmate may receive 








                                                                  AB 1907
                                                                  Page  6

            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.

          15)States that the involuntary medication must be discontinued 
            one year after the date of determination unless the inmate 
            gives his or her informed consent to the administration of the 
            medication or the county department of mental health files 
            with the superior court, no less than 21 days prior to the 
            expiration of the current order, a written notice indicating 
            the department's intent to renew the involuntary medication 
            order.  The notice must also be served on the inmate and his 
            or her counsel.  

          16)Specifies that the county department of mental health must 
            provide the same due process protection as those given for the 
            initial order.  

          17)States that renewal orders are valid for one year from the 
            date of the hearing. 

          18)Requires that an order renewing an existing order 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 to be alleged or proven.

          19)Requires that if the county department of mental health 
            wishes to add a basis to an existing order, the department 
            must give the inmate and the inmate's counsel notice in 
            advance of the hearing, specifying what additional basis is 
            being alleged and what qualifying conduct within the past year 
            supports the additional basis.  This additional basis must be 
            proved by the department by clear and convincing evidence to a 
            hearing by a court-appointed hearing officer.  

          20)Requires the renewal hearing be conducted prior to the 
            expiration of the current order.

          21)Specifies that in the event of a conflict between this 








                                                                  AB 1907
                                                                  Page  7

            section and provisions of the Administrative Procedures Act, 
            as specified, this section controls.  

          22)Defines "counsel," for purposes of this section, to include a 
            county patient rights advocate.  

          23)Clarifies that the process for involuntarily medicating an 
            inmate of CDCR also applies to inmates housed within a state 
            prison.

          24)Clarifies that if an inmate of CDCR is administered 
            psychiatric medication involuntarily on an emergency basis, he 
            or she would receive an expedited hearing and must receive 
            expedited access to counsel.  

          25)States that in the event of any statutory notice issues with 
            either initial or renewal filings by the CDCR, the 
            administrative law judge (ALJ) 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.

          26)Removes the requirement that an inmate of CDCR who is 
            involuntarily administered psychiatric medication on an 
            emergency basis only be medicated for five days unless an ALJ 
            issues an order authorizing the continuing involuntary 
            medication of the inmate.  

          27) Requires that, if CDCR's clinicians identify a situation 
            that jeopardizes the inmate's health or well-being as the 
            result and a serious mental illness, and necessitates the 
            continuation of emergency beyond the initial 72 hours pending 
            the full mental health hearing, CDCR will 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 must be served upon the inmate and 
            counsel at the same time the inmate is given written notice 
            that the involuntary medication proceedings are being 
            initiated and is appointed counsel.

          28)Specifies that an ex parte order for emergency involuntary 
            medication of an inmate of CDCR may be issued if there is a 








                                                                  AB 1907
                                                                  Page  8

            showing that in the absence of medication, there is a 
            reasonable likelihood that the emergency conditions are likely 
            to reoccur and must be supported by an affidavit from the 
            psychiatrist showing specific facts.  

          29)Specifies that once CDCR has requested an ex parte order for 
            emergency involuntary medication of an inmate of CDCR, that 
            inmate and his or her counsel have two business days to 
            respond to the request and may present facts supported by an 
            affidavit in opposition to the request.  

          30)Requires an ALJ to review the ex parte request and shall have 
            three business days to determine the merits of the CDCR's 
            request.

          31)Clarifies that in order to renew an existing involuntary 
            medication order, CDCR may file with the Superior Court of the 
            Office of Administrative Hearings a written notice indicating 
            the department's intent to new the existing order.  

          32)Specifies that an order to renew an existing involuntary 
            medication order for an inmate of CDCR, there must clear and 
            convincing evidence that the inmate has a serious mental 
            disorder that requires treatment with psychiatric medication, 
            along with other specified findings.  

          33)Requires that if CDCR wishes to add a basis to an existing 
            order, the department must give the inmate and the inmate's 
            counsel notice in advance of the hearing, specifying what 
            additional basis is being alleged and what qualifying conduct 
            within the past year supports the additional basis.  This 
            additional basis must be proved by the department by clear and 
            convincing evidence by a hearing by an ALJ.  

          34)Requires CDCR to adopt regulations to fully implement this 
            section.  

          35)Replaces references to "psychotropic" medications with 
            "psychiatric" medications.  

           EXISTING LAW  :  

           1)States that, except for where allowed by law, no person 
            sentenced to imprisonment in a state prison shall be 
            administered any psychotropic medication without his or her 








                                                                  AB 1907
                                                                  Page  9

            prior informed consent.  ÝPenal Code Section 2602(a).]

          2)States that if a psychiatrist determines that an inmate should 
            be treated with psychotropic medication, but the inmate does 
            not consent, the inmate may be involuntarily treated with the 
            medication. Treatment may be given on either an emergency or 
            nonemergency basis, as specified.  ÝPenal Code Section 
            2602(b).]

          3)Allows CDCR to seek to initiate involuntary medication on a 
            nonemergency basis only if all of the following conditions 
            have been met ÝPenal Code Section 2602(c)]:

             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 or a danger 
               to self or others and does not have the capacity to refuse 
               treatment with psychotropic medications.

             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 patient.

             d)   The inmate has been advised of the risks and benefits 
               of, and treatment alternatives to, the psychotropic 
               medication and refuses or is unable to consent to the 
               administration of the medication.

             e)   The inmate is provided a hearing before an ALJ.

             f)   The inmate is provided counsel at least 21 days prior to 
               the hearing. 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 shall do all of the following:









                                                                  AB 1907
                                                                  Page  10

               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 for the 
                 inmate shall have access to all medical records and files 
                 of the inmate, but shall not have access to the 
                 confidential sections of the inmate's central file which 
                 contain materials unrelated to medical treatment.

               iii)   Inform the prisoner of his or her right to contest 
                 the finding of an ALJ authorizing treatment with 
                 involuntary medication by filing a petition for writ of 
                 administrative mandamus, as specified, and his or her 
                 right to file a petition for writ of habeas corpus with 
                 respect to any decision of the CDCR to continue treatment 
                 with involuntary medication after the ALJ has authorized 
                 treatment with involuntary medication.

             h)   The ALJ 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 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.
         
             i)   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 themselves or others, or is 
               gravely disabled and incompetent to refuse medication as 
               the result of a mental disorder.

             j)   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 








                                                                  AB 1907
                                                                  Page  11

               to present new evidence, upon good cause shown.

          4)States that nothing in this section is intended to prohibit a 
            physician from taking appropriate action in an emergency.  
            ÝPenal Code Section 2602(d).]

          5)Defines an "emergency" as 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.  ÝPenal Code Section 2602(d).]

          6)States that if psychotropic 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, as specified, unless the 
            department first obtains an order from an ALJ authorizing the 
            continuance of medication beyond five days.  ÝPenal Code 
            Section 2602(d).]

          7)Allows the order for involuntarily medicating an inmate to be 
            issued ex parte upon a showing that in the absence of the 
            medication the emergency is likely to recur, supported by an 
            affidavit showing specific facts. ÝPenal Code Section 
            2602(d).]

          8)States that the inmate may present facts supported by an 
            affidavit in opposition to the request for an ex parte 
            involuntary medication order.  ÝPenal Code Section 2602(d).]

          9)Allows for the continued administration of psychotropic 
            medications on an emergency basis until a hearing before an 
            ALJ, as specified.  ÝPenal Code Section 2602(d).]

          10)Requires CDCR, if an inmate is being involuntarily 
            administered psychiatric medication on an emergency basis, 
            file with Office of Administrative Hearings, and serve the 
            inmate and his or her counsel, written notice within 72 hours 
            unless the inmate gives informed consent to continue the 
            medication or a psychiatrist determines that the psychiatric 
            mediation is not necessary and administration of the 
            medication is discontinued.  If written notice is given, it 








                                                                  AB 1907
                                                                  Page  12

            must do the following  ÝPenal Code Section 2602(d)(1)]:

             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.

             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 sections of the inmate's central file which 
               contain materials unrelated to medical treatment.

             c)   Inform the prisoner of his or her right to contest the 
               finding of an ALJ authorizing treatment with involuntary 
               medication by filing a petition for writ of administrative 
               mandamus pursuant, as specified, 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 ALJ has authorized treatment with 
               involuntary medication.

          11)Specifies that if an inmate is being involuntarily medicated 
            on an emergency basis, the hearing before an ALJ shall 
            commence within 21 days of the filing and service of the 
            notice, unless counsel for an inmate agrees to a longer period 
            of time.  ÝPenal Code Section 2602(d)(2).]

          12)Specifies that an inmate being involuntarily administered 
            psychiatric medication on an emergency basis has the same due 
            process protections as an inmate being involuntarily medicated 
            under a court order, CDCR must prove the same elements 
            supporting involuntary medication, and the ALJ is required to 
            make the same findings related to involuntary medication.  
            ÝPenal Code Section 2602(d)(3).]

          13)States that 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 








                                                                  AB 1907
                                                                  Page  13

            subsequently gives his or her informed consent.  ÝPenal Code 
            Section 2602(e).]

          14)States that if a determination has been made to involuntarily 
            medicate an inmate, 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, as 
            specified.   ÝPenal Code Section 2602(f).]

          15)States that to renew an existing order allowing involuntary 
            medication, CDCR shall file with the Office of Administrative 
            Hearings, and shall serve the inmate and his or her counsel, 
            the written notice, as specified, and shall state that the 
            request is for a renewal.  ÝPenal Code Section 2602(g).]

          16)Requires that 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.  ÝPenal 
            Code Section 2602(g)(1).]

          17)Requires that, to obtain a renewal order, CDCR must provide 
            the same due process protection as given during the initial 
            certification, prove the same elements supporting involuntary 
            medication, and the ALJ is required to make the same findings 
            related to involuntary medication.  ÝPenal Code Section 
            2602(g)(2).]

          18)States that renewal orders are valid for one year from the 
            date of the hearing.  ÝPenal Code Section 2602(g)(3).]

          19)Requires that an order renewing a prior order may be granted 
            based on 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.  ÝPenal Code Section 2602(g)(4).]

          20)Requires the hearing on any petition to renew an order for 
            involuntary medication shall be conducted prior to the 
            expiration of the current order.  ÝPenal Code Section 
            2602(g)(5).]








                                                                  AB 1907
                                                                  Page  14


          21)Specifies that in the event of a conflict between this 
            section and provisions of the Administrative Procedures Act, 
            as specified, this section controls.  ÝPenal Code Section 
            2602(h).]
           
          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  : According to the author, "AB 1907 extends 
            the streamlined process that currently applies only to inmates 
            in state prison to inmates sentenced to county jails, thereby 
            shortening the time frame from 45 days to no more than 30 days 
            for an inmate in a county jail to receive long-term medication 
            to improve their mental health if they are either gravely 
            disabled or a danger to themselves or others.

          "In addition, AB 1907 unifies the renewal timeline for 
            involuntary treatment orders and simplifies the process and 
            terminology to ensure that the inmate is provided with 
            appropriate mental health treatment consistent with his or her 
            due process rights, and ensured that officials take into 
            account the inmate's mental health history when determining 
            whether or not the prisoner is gravely disabled or a danger to 
            themselves or others."

           2)Background  :  According to information provided by the author, 
            "AB 1907 is follow-up legislation to AB 1114 (B. Lowenthal) 
            Chapter 665, Statutes of 2011 which streamlined the process 
            for inmates sentenced to state prisons.  While AB 1114 
            originally included inmates sentenced to state prison OR 
            county jails, an amendment taken in Senate Public Safety 
            limited the bill to only state prisons.

          "AB 1114 changed 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, along with 
            the terminology used, to ensure that the prisoner is provided 
            with appropriate, necessary, and beneficial mental health 
            treatment that is also consistent with his or her due process 
            rights.









                                                                  AB 1907
                                                                  Page  15

          "The Keyhea court held that equal protection required that 
            prisoners subject to involuntary psychotropic medication be 
            afforded the same rights as non-prisoners.  At the time of the 
            Keyhea decision, however, there were no statutes defining the 
            rights of non-prisoners subject to involuntary medication.  
            Therefore, the court adopted the procedures used when a court 
            civilly commits a person as gravely disabled or a danger to 
            self or others.  These procedures include an increasingly 
            stringent set of reviews and hearings depending on the length 
            of the commitment sought.  The Keyhea injunction also adopted 
            statutes that define terms utilized to determine whether a 
            person should be removed from society for commitment to a 
            mental hospital.

          "Prior to AB 1114, California Penal Code (PC) Section 2600 
            incorporated the Keyhea permanent injunction, which sets forth 
            the requirements and procedures the California Department of 
            Corrections and Rehabilitation (CDCR) must comply with prior 
            to involuntarily medicating mentally disordered inmates with 
            psychotropic medication.

          "The Keyhea injunction essentially required that a prisoner 
            being treated for a serious mental illness must meet the 
            standard for a long term civil commitment in order to be 
            provided with long term involuntary psychotropic medication.  
            This required, for example, that a prisoner must be gravely 
            disabled to obtain an order for one year of treatment with 
            involuntary medication.

          "In addition, Keyhea required a certification review hearing to 
            provide a prisoner with involuntary medication for up to 47 
            days.  It then required an adversarial hearing with 
            representation by counsel before an Administrative Law Judge 
            (ALJ) to provide the prisoner with long term medication.  The 
            certification review hearing meets the constitutional due 
            process standard established by the United States Supreme 
            Court in Washington v. Harper.  However, because California 
            provided the prisoner with an ALJ hearing that far exceeded 
            basic due process requirements; the certification review 
            hearing was viewed as unnecessary.

          "Due to a prior court decision in 1982,  De Lancie v. Superior 
            Court  Ý31 Cal. 3d 865], which determined that county jails are 
            also subject to PC Section 2600, county jails are also, or had 
            been prior to AB 1114, subject to the protocols in the Keyhea 








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            injunction.  While AB 1114 incorporated the new process into 
            the Penal Code, it also eliminated the reference to the Keyhea 
            injunction, leaving state law silent on the appropriate 
            involuntary treatment process for inmates sentenced to county 
            jails.

          "AB 1907 ensures that the streamlined process the currently 
            applies to state prisons as a result of AB 1114 will also 
            apply to an inmate in need of involuntary treatment in a 
            county jail."

           3)Involuntary Medication and Inmates  :  The United States Supreme 
            Court has held that a state department of prisons has the 
            authority to involuntarily administer psychiatric medications 
            to inmates who are gravely disabled or a danger to self or 
            others because of mental illness.  ÝWashington v. Harper, 494 
            U.S. 210 (1990).]  The plaintiff in that case, an inmate in 
            the Washington State Penitentiary, was diagnosed with 
            manic-depressive disorder and was sent to the Special Offender 
            Center, a correctional institute to diagnose and treat 
            convicted felons with serious mental disorders.  While there, 
            he was involuntarily medicated with psychiatric medications, 
            and challenged the state's authority to medicate him without 
            his consent, arguing that such involuntary medication violated 
            both substantive and procedural due process.  

          Addressing the substantive due process claim first, the court 
            held that while the plaintiff did have a right to refuse 
            medication, that right must be balanced with the state's 
            legitimate penological interests.  (494 U.S. at 224-5.)  The 
            state had a legitimate interest in protecting that inmate and 
            other inmates from harm, and involuntarily medicating the 
            plaintiff was reasonably related to that interest. (494 U.S. 
            at 225.)

          The court also held that the hearing process implemented by the 
            state department of corrections satisfied procedural due 
            process requirements.  (Id. at 228.)  The procedure for 
            involuntarily administering psychiatric medications to an 
            inmate had four parts.  First, a psychiatrist must determine 
            that the inmate should be treated with psychiatric medication 
            if the inmate suffers from a mental disorder or is gravely 
            disabled and is a danger to self or others.  (Id. at 215.)  
            Second, the inmate is entitled to a hearing before a committee 
            of health professionals not involved in his or her treatment, 








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            in which the committee determines by a majority vote that the 
            inmate suffers from a mental disorder and is gravely disabled 
            or dangerous.  (Id.)  Third, the inmate is given certain 
            procedural rights, including at least 24-hour notice of the 
            hearing, notice of the tentative diagnosis, notice of the 
            factual basis for the diagnosis, and explanation by the staff 
            as to why they believe the medication is necessary. (Id. at 
            216.)  At the hearing, the inmate is entitled to attend, 
            present evidence and witnesses, cross-examine staff witnesses, 
            and to the assistance of a lay advisor who has not been 
            involved in the inmate's case, but understands the psychiatric 
            issues.  (Id.)  Fourth, there must be periodic review of the 
            involuntary medication order.  (Id.)

          The procedures set forth in this bill meet, and in some case 
            exceed, the requirements in Washington v. Harper.  The initial 
            order for involuntary medication is made by a psychiatrist 
            upon a determination that the inmate is gravely disabled or is 
            a danger to self or others because of mental illness.  The 
            inmate is entitled to a hearing, but with greater due process 
            protections, including an ALJ or court-appointed hearing 
            officer presiding over the hearing.  The inmate is entitled to 
            all the procedural rights, in addition to counsel, which the 
            Court specifically stated was not required.  (Id. at 228.)  
            Finally, the involuntary medication order is subject to review 
            every year by an ALJ or court-appointed hearing officer.

           4)Related Legislation  :

             a)   AB 1114 (Lowenthal), Chapter 665, Statutes of 2011, 
               changed the procedures for involuntarily medicating inmates 
               of CDCR.  

             b)   SB 795 (Blakeslee) would have changed the process for 
               involuntary medication of defendants found mentally 
               incompetent during the criminal process.  SB 795 heard by 
               the Senate Public Safety Committee.

           5)Previous Legislation  :

             a)   AB 2380 (Dymally), of the 2005-06 Legislative Session, 
               would have clarified that "treatment" for medically 
               disordered offenders paroled to other facilities for 
               treatment includes involuntary medication.  AB 2380 failed 
               passage in this Committee.








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             b)   AB 1424 (Thompson), Chapter 506, Statutes of 2001, 
               related to the involuntary medication for individuals under 
               the Lanterman-Petris-Short Act.

             c)   AB 2798 (Thompson), of the 1999-2000 Legislative 
               Session, would have authorized a judicially committed 
               forensic patient in a state hospital to be medicated 
               involuntarily with antipsychotic mediation in accordance 
               with specified procedures.  AB 2798 was never heard by this 
               Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          National Association of Social Workers
          California Psychiatric Association
          California Council of Community Mental Health Agencies

           Opposition 
           
          None
           

          Analysis Prepared by  :    Milena Blake / PUB. S. / (916) 319-3744