BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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9
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AB 1907 (Bonnie Lowenthal) 7
As Amended June 19, 2012
Hearing date: June 26, 2012
Penal Code
JM:mc
PRISON AND JAIL INMATES:
INVOLUNTARY ADMINISTRATION OF PSYCHIATRIC MEDICATION
HISTORY
Source: Author
Prior Legislation:AB 1114 (Lowenthal) - Ch. 665, Stats. 2011
AB 366 (Allen) - Ch. 654, Stats. 2011
Support: National Association of Social Workers, California
Chapter; California Psychiatric Association; California
Council of Community Mental Health Agencies; Legal
Services for Prisoners with Children
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUES
SHOULD TECHNICAL AND CLARIFYING AMENDMENTS, INCLUDING CHANGES IN THE
PROCESS FOR OBTAINING AN EX PARTE ORDER FOR EMERGENCY MEDICATION, BE
MADE IN THE STATUTE GOVERNING INVOLUNTARY ADMINISTRATION OF
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PSYCHIATRIC MEDICATION TO PRISON INMATES?
SHOULD THE SUBSTANTIVE AND PROCEDURAL PROVISIONS FOR INVOLUNTARY
ADMINISTRATION OF PSYCHIATRIC MEDICATION TO PRISON INMATES BE
APPLIED TO COUNTY JAIL INMATES?
PURPOSE
The purposes of this bill are to 1) apply the laws and
procedures for involuntary medication of prison inmates to
county jail inmates and persons housed in a state prison; 2)
provide that in an emergency an inmate may be involuntarily
medicated pursuant to an ex parte order until a hearing on
involuntary medication can be held, as specified; 3) grant
expedited access to counsel and a hearing to an inmate subject
to involuntary medication in an emergency; 4) provide that
where custody authorities fail to comply with a notice
requirement concerning hearings on involuntary medication, the
administrative law judge or hearing office shall determine
whether or not the inmate can protect his or her interests
before dismissing the petition; 5) terminate the permanent
injunction issued in Keyhea v. Rushen (1986) 178 Cal.App.3d, 536
concerning involuntary administration of psychiatric medication
to inmates and replace the injunction with an equivalent
process; 6) specify that county jail inmates subject to
involuntary psychiatric medication orders need not be taken to a
county mental health facility unless medically necessary; and 7)
make technical changes, including substituting the term
"psychiatric medication" for "psychotropic medication" in the
involuntary medication laws.
Existing law 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
prior informed consent. (Pen. Code § 2602, subd. (a).)
Existing law 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
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emergency or nonemergency basis, as specified. (Pen. Code §
2602, subd. (b).)
Existing law allows the Department of Corrections and
Rehabilitation (CDCR) may initiate involuntary medication on a
nonemergency basis only if all of the following conditions have
been met:
A psychiatrist has determined that the inmate has a
serious mental disorder.
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.
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.
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.
The inmate is provided a hearing before an
administrative law judge (ALJ).
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.
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:
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o 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.
o 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.
o 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.
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.
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
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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.
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. (Pen. Code § 2602, subd.
(c).)
Existing law states that nothing in the process for involuntary
administration of antipsychotic medication to prison inmates is
intended to prohibit a physician from taking appropriate action
in an emergency. (Pen. Code § 2602, subd. (d).)
Existing law defines an "emergency" as a sudden and marked
change in an inmate's mental condition requiring immediately
acting to preserve life or prevent serious bodily harm to the
inmate or others, and it is impractical, due to the seriousness
of the emergency to first obtain informed consent. (Pen. Code §
2602, subd. (d).
Existing law states that if emergency psychotropic medication is
administered, the medication shall only be that necessary to
address the emergency and shall be administered no longer than
necessary, but in no event longer than five days after notice
and counsel are provided, as specified, unless the department
first obtains an order from an ALJ authorizing the continuance
of medication. (Pen. Code § 2602, subd. (d).)
Existing law 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. (Pen. Code § 2602,
subd. (d).)
Existing law states that the inmate may present facts supported
by an affidavit in opposition to the request for an ex parte
involuntary medication order. (Pen. Code § 2602, subd. (d).)
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Existing law allows for continued emergency administration of
psychotropic medications until a hearing is held on the issue.
(Pen. Code § 2602, subd. (d).)
Existing law requires CDCR, if an inmate is being involuntarily
administered psychotropic medication on an emergency basis, file
with the 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 must do the following:
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.
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.
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. (Pen. Code § 2602, subd. (d)(1).):
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Existing law 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.
(Pen. Code § 2602, subd. (d)(2).)
Existing law 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. (Pen. Code § 2602, subd. (d)(3).)
Existing law states that an order to involuntary medicate an
inmate is valid for one year, regardless of whether the inmate
subsequently gives his or her informed consent. (Pen. Code
§ 2602, subd. (e).)
Existing law 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. (Pen. Code § 2602, subd. (f).)
Existing law states that to renew an existing order allowing
involuntary medication, CDCR shall file with the Office of
Administrative Hearings, and shall provide written notice to the
inmate and counsel. (Pen. Code § 2602, subd. (g).)
Existing law 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. (Pen. Code § 2602, subd. (g)(1).)
Existing law 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
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findings related to involuntary medication. (Pen. Code § 2602,
subd. (g)(2).)
Existing law states that renewal orders are valid for one year
from the date of the hearing. (Pen. Code § 2602, subd. (g)(3).)
Existing law provides that renewal of an involuntary medication
order may be supported by clear and convincing evidence that,
but for the medication, the inmate would revert to the behavior
underlying the prior order, 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. No new
acts need be alleged or proven. (Pen. Code § 2602, subd.
(g)(4).)
Existing law requires the hearing on any petition to renew an
order for involuntary medication shall be conducted prior to the
expiration of the current order. (Pen. Code § 2602, subd.
(g)(5).)
Existing decisional law holds that the constitutional rights of
prison inmates, including the right to refuse treatment with
psychiatric medication unless the state makes a specified
showing, apply to jail inmates. (See, De Lancie v. Superior
Court (1982) 31 Cal. 3d 865 and Pen. Code §§ 2600-2602.)
This bill states legislative intent to terminate, through this
bill and prior enactment of Penal Code Section 2602, the
permanent injunction concerning required procedures and
standards for involuntary administration of psychiatric
medication of inmates set out in Keyhea v. Rushen (1986) 178
Cal.App.3d, 536.
This bill clarifies that the process for involuntarily
medicating a CDCR inmate also applies to inmates "housed" within
a state prison.
This bill clarifies that the basic grounds for involuntarily
medicating an inmate are that 1) the inmate is gravely disabled
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and lacks capacity to refuse treatment with psychiatric
medications, or 2) the inmate is a danger to self or others.<1>
This bill provides that if an inmate is involuntarily
administered psychiatric medication in an emergency, he or she
shall receive an expedited hearing and must receive expedited
access to counsel.
This bill provides that failure to provide statutory notice can
only be excused through a showing of good cause.
This bill states that in the event of any statutory notice
issues with either an initial or renewal petition filed by CDCR
for involuntary administration of psychiatric medication to an
inmate, the 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.
This bill 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, interim involuntary
medication of the inmate.
This bill 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
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<1> Existing law inaccurately applies the lack of capacity
standard to cases where the inmate is a danger to self or others
because of his or her mental disorder.
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is appointed counsel.
This bill specifies that an ex parte order for emergency and
interim involuntary medication of an inmate of CDCR may be
issued if there is a 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.
This bill specifies that once CDCR has requested an ex parte
order for emergency and interim involuntary medication of an
inmate of CDCR, the inmate and his or her counsel have two
business days to respond to the request. The inmate may present
facts supported by an affidavit in opposition to the request.
This bill requires an ALJ to review the ex parte request for
medication in an emergency. The ALJ shall have three business
days to determine the merits of the request. The order shall be
valid until a full hearing on the matter, replacing the five-day
limit for an emergency order in existing law.
This bill clarifies that CDCR may file with the Superior Court
of the Office of Administrative Hearings a written notice
indicating the department's intent to renew an existing
involuntary medication order.
This bill specifies that renewal of an existing order for
involuntary medication of a CDCR inmate must be supported by
clear and convincing evidence that the inmate has a serious
mental disorder that requires treatment with psychiatric
medication, along with other specified findings.
This bill requires that if CDCR wishes to add a basis to an
existing order for involuntary medication, 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.
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This bill requires CDCR to adopt regulations to fully implement
this section.
This bill replaces references to "psychotropic" medications with
"psychiatric" medications.
This bill applies the process for involuntary administration of
psychiatric medication to prison inmates to county jail inmates.
This bill provides that a county jail inmate may be involuntary
administered psychiatric medication under the same standards and
conditions that apply to involuntary medication of prison
inmates, as the statutes governing that process are amended by
this bill.
This bill differentiates the process for involuntarily
administering psychiatric medication to jail inmates from the
process for involuntarily medicating prison inmates in the
following ways:
Hearings concerning involuntary medication of jail
inmates shall be held by a superior court judge, or a court
appointed commissioner referee or hearing officer.
The agency seeking an order for involuntary medication
is the county department of mental health.
A jail inmate may file an appeal of the medication order
in the county superior court or the Court of Appeal,
consistent with similar authority in civil commitment
proceedings.
Clarify that an inmate need not be transferred to a
county mental health facility, as specified, unless that is
medically necessary.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
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In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
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-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
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
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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
ensures that officials take into account the inmate's
mental health history when determining whether or not
the inmate is gravely disabled or a danger to
themselves or others.
Finally, AB 1907 makes technical and clarifying
changes to the procedures established in AB 1114 (B.
Lowenthal), Chapter 665, Statues of 2011, for state
prisons to address issues identified during the first
few months of implementation.
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AB 1907 ensures that the inmates in state prisons and
county jails are provided with appropriate, necessary,
and beneficial mental health treatment while
protecting their due process rights.
2. United States Supreme Court Decision Setting Constitutional
Requirements in Cases of Involuntary Administration of
Psychotropic Medication to Prison Inmates
In Washington v. Harper (1990) 494 U.S. 210, the U.S. Supreme
Court considered whether or not involuntary medication of a
state prison inmate with antipsychotic<2> medication was
consistent with due process guarantees under the Fourteenth
Amendment. The substantive due process issue involved balancing
the rights of the inmate to refuse medication against the
interests of the state in managing prisons and prisoners. (Id,
at pp. 224-225.) The Court found that the state has a
legitimate interest in protecting the inmate and other inmates
from harm, and involuntarily medicating the defendant under
limited circumstances is reasonably related to that interest.
(Id, at 225.) The procedural due process issue concerns the
fairness of the process for determining if the inmate should be
medicated and how that decision should be implemented. (Id., at
pp. 215-216.)
The Court held that due process requires the following: First,
the state may medicate a defendant without his or her consent
only upon a finding that the inmate has a mental disorder and is
gravely disabled or poses a danger to self or others. Second,
the inmate is entitled to a hearing before a committee of health
professionals not involved in his or her treatment on the
grounds for involuntary medication. Third, the inmate is
entitled to at least 24-hour notice of the hearing, a
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<2> This bill uses the term "psychiatric" medication. As in
other cases, the Supreme Court uses the term "antipsychotic"
medication to describe medication used to treat seriously
mentally ill persons. (Washington v. Harper, supra, 494 U.S. at
p. 213.) The Keyhea injunction uses both of the terms
"antipsychotic" medication and "psychotropic" medication.
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statement of diagnosis and a staff explanation of why the
medication is necessary. At the hearing, the inmate is entitled
to present evidence, cross-examine staff witnesses. He or she
is also entitled to the assistance of a lay advisor who has not
been involved in the inmate's case, but understands the
psychiatric issues. Fourth, there must be periodic review of
the order. (Id, at pp. 215-216.)
3. Keyhea Injunction and Codification of the Injunction into
Statute
In Keyhea v. Rushen (1986) 178 Cal. App. 3d 526, the court held
that equal protection requires that prisoners subject to
involuntary psychotropic medication be afforded the same rights
as non-prisoners. The Keyhea injunction essentially requires
that the grounds and procedures for involuntarily medicating
inmates must be equivalent to those applicable to long term
civil commitments of non-inmates. This requires, for example,
that a prisoner must be gravely disabled (unable to care for
himself or herself) for CDCR to obtain an order authorizing
involuntary treatment of the inmate with psychotropic medication
for one year. The inmate must be a danger to self or others to
allow CDCR to obtain an order for involuntary medication for six
months.
On October 31, 1986, the Keyhea court issued a permanent
injunction setting forth the requirements and procedures that
CDCR must comply with when seeking to involuntarily administer
psychotropic medication to a mentally ill inmate. In 1994, the
Legislature codified the Keyhea injunction in Penal Code Section
2600.
The Keyhea process for prison inmates was updated and
streamlined through AB 1114 (Bonnie Lowenthal) Chapter 665,
Statutes of 2011. AB 1114 was drafted and amended through very
numerous discussions with all interested parties. This bill
essentially applies the updated process for prison inmates to
county jail inmates.
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4. Expedited Hearings and Access to Counsel - No Description or
Detail in the Bill
The bill provides that an inmate shall be provided counsel
within 21 days of the filing of a petition for involuntary
medication and that a hearing on the petition will be held
within 30 days. The bill also provides that an inmate who has
been administered involuntary psychiatric medication in an
emergency shall have access to an "expedited" hearing and
"expedited" access to counsel.
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The bill does not state what constitutes expedited access to
counsel and a hearing. The bill does not set standards for
determining what constitutes expedited procedures. It appears
that an expedited access to counsel and a hearing would mean
something less than the 21and 30 days respectively required in
non-emergency circumstances. It is likely that this issue will
be decided in litigation. Courts are likely to rule that an
expedited process must give the inmate some reasonably
significant benefit beyond the standard time limits. This issue
could be subject to relatively extensive litigation.
WHAT CONSTITUTES EXPEDITED ACCESS TO COUNSEL AND AN EXPEDITED
HEARING WHERE AN INMATE IS INVOLUNTARILY ADMINISTERED
PSYCHIATRIC MEDICATION IN AN EMERGENCY?
SHOULD STANDARDS BE SET OUT FOR WHAT CONSTITUTES EXPEDITED
PROCEDURES?
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