BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 1907
Author: Bonnie Lowenthal (D)
Amended: 8/6/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/26/12
AYES: Hancock, Anderson, Harman, Liu, Price, Steinberg
NO VOTE RECORDED: Calderon
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 78-0, 5/30/12 - See last page for vote
SUBJECT : Prison and jail inmates: involuntary
administration of
psychiatric medication
SOURCE : Author
DIGEST : This bill (1) applies the laws and procedures
for involuntary medication of prison inmates to county jail
inmates and persons housed in a state prison; (2) provides
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)
grants expedited access to counsel and a hearing to an
inmate subject to involuntary medication in an emergency;
(4) provides that where custody authorities fail to comply
with a notice requirement concerning hearings on
involuntary medication, the administrative law judge or
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hearing office shall determine whether or not the inmate
can protect his/her interests before dismissing the
petition; (5) terminates 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) specifies 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) makes technical changes, including
substituting the term "psychiatric medication" for
"psychotropic medication" in the involuntary medication
laws.
ANALYSIS : 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.
(Penal Code (PEN) Section 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 emergency or nonemergency basis, as
specified. (PEN Section 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:
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 or a
danger to self or others and does not have the capacity
to refuse treatment with psychotropic medications.
3. A psychiatrist has prescribed one or more psychotropic
medications for the treatment of the inmate's disorder,
has considered the risks, benefits, and treatment
alternatives to involuntary medication, and has
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determined that the treatment alternatives to
involuntary medication are unlikely to meet the needs of
the patient.
4. The inmate has been advised of the risks and benefits
of, and treatment alternatives to, the psychotropic
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 (ALJ).
6. 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.
7. 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:
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/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/her
right to file a petition for writ of habeas corpus
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with respect to any decision of the CDCR to continue
treatment with involuntary medication after the ALJ
has authorized treatment with involuntary medication.
8. 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.
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
themselves 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/she
may receive involuntary medication, and may seek a
hearing to present new evidence, upon good cause shown.
(PEN Section 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 Section
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 Section 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
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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 Section 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 Section 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 Section
2602, subd. (d))
Existing law allows for continued emergency administration
of psychotropic medications until a hearing is held on the
issue. (PEN Section 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/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:
1. 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.
2. 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
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access to the confidential sections of the inmate's
central file which contain materials unrelated to
medical treatment.
3. Inform the prisoner of his/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/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 Section
2602, subd. (d)(1)):
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 Section 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 Section 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/her informed consent. (PEN
Section 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/her informed
consent to the administration of the medication, or unless
a new determination is made, as specified. (PEN Section
2602, subd. (f))
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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 Section
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 Section 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 findings related to involuntary
medication. (PEN Section 2602, subd. (g)(2))
Existing law states that renewal orders are valid for one
year from the date of the hearing. (PEN Section 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/her need for the medication, such that it is unlikely
that the inmate would be able to manage his/her own
medication and treatment. No new acts need be alleged or
proven. (PEN Section 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 Section
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
Section 2600-2602)
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This bill states legislative intent to terminate, through
this bill and prior enactment of PEN 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 and lacks capacity to refuse treatment
with psychiatric medications, or (2) the inmate is a danger
to self or others.
This bill provides that if an inmate is involuntarily
administered psychiatric medication in an emergency, he/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
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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.
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 CDCR'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.
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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.
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:
1. Hearings concerning involuntary medication of jail
inmates shall be held by a superior court judge, or a
court appointed commissioner referee or hearing officer.
2. The agency seeking an order for involuntary medication
is the county department of mental health.
3. 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.
4. Clarify that an inmate need not be transferred to a
county mental health facility, as specified, unless that
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is medically necessary.
Prior legislation . AB 1114 (Lowenthal, Chapter 665,
Statutes of 2011) passed the Senate (38-0) on August 31,
2011. AB 366 (Allen, Chapter 654, Statutes of 2011) passed
the Senate (35-0) on September 7, 2011.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/7/12)
California Council of Community Mental Health Agencies
California Psychiatric Association
Legal Services for Prisoners with Children
National Association of Social Workers, California Chapter
ARGUMENTS IN SUPPORT : 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 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.
AB 1907 ensures that the inmates in state prisons and
county jails are provided with appropriate, necessary,
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and beneficial mental health treatment while protecting
their due process rights.
ASSEMBLY FLOOR : 78-0, 5/30/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fong, Fuentes, Furutani, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nestande,
Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Wagner, Wieckowski, Williams, Yamada, John A.
Pérez
NO VOTE RECORDED: Fletcher, Valadao
RJG:m 8/7/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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