BILL NUMBER: SB 795 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 29, 2011
INTRODUCED BY Senator Blakeslee
FEBRUARY 18, 2011
An act to amend Section 1370 of the Penal Code, relating
to competency. and to amend Section 7301 of, and to
repeal and add Section 7230 of, the Welfare and Institutions Code,
relating to health.
LEGISLATIVE COUNSEL'S DIGEST
SB 795, as amended, Blakeslee. Competency: involuntary
medication Health .
Existing
(1) Existing law provides for the
commitment of persons found mentally incompetent for criminal
process. Existing law also provides that if the defendant consented
to antipsychotic medication, as specified, but subsequently withdraws
his or her consent, or, if involuntary antipsychotic medication was
not ordered, and the treating psychiatrist determines that
antipsychotic medication has become medically necessary and
appropriate, the treating psychiatrist shall make efforts to obtain
informed consent from the defendant for antipsychotic medication.
Existing law provides that if informed consent is not obtained
from the defendant, and the treating psychiatrist is of the opinion
that the defendant lacks capacity to make decisions regarding
antipsychotic medication, or that the defendant is a danger to
others, as specified, the committing court shall be notified of this,
including an assessment of the current mental status of the
defendant and the opinion of the treating psychiatrist that
involuntary antipsychotic medication has become medically necessary
and appropriate.
Existing law further provides that the court shall provide notice
to the prosecuting attorney and to the attorney representing the
defendant and shall set a hearing to determine whether involuntary
antipsychotic medication should be ordered, as specified.
This bill would provide that if informed consent is not obtained
from the defendant, and the treating psychiatrist is of the opinion
that the defendant lacks capacity to make decisions regarding
antipsychotic medication, or that the defendant is a danger to
others, as specified, then the treating psychiatrist shall file a
petition with the committing court for issuance of an emergency order
within 24 hours after determining that antipsychotic medication has
become medically necessary and appropriate.
The bill would require the court to provide notice to the
prosecuting attorney and to the attorney representing the defendant,
and to hold a preliminary hearing no later than the first court day
commencing after a period of 48 hours after the determination that
antipsychotic medication has become medically necessary and
appropriate has been made to establish probable cause for grounds to
administer antipsychotic medication.
The bill would require the court to render its decision on the
petition no later than the first court day following a period of 72
hours after the determination that antipsychotic medication has
become medically necessary and appropriate was made.
The bill would provide that if, as a result of the preliminary
hearing, the court determines that probable cause continues to exist
for the administration of antipsychotic medication, the court may
issue an order authorizing the administration of that medication on
an emergency basis after finding on the record, based on clear and
convincing evidence, that the defendant lacks capacity to make
decisions regarding antipsychotic medication, or the defendant is a
danger to others, as specified, and that no other appropriate means
are available to mitigate the patient's situation.
The bill would authorize antipsychotic medication to be provided
pursuant to the emergency order for no more than 14 days, exclusive
of Saturdays, Sundays, and legal holidays pending a hearing, as
specified, to be held not later than those same 14 days.
(2) Existing law requires mentally disordered prisoners in the
state prison to be admitted to a state hospital and requires the
State Department of Mental Health to evaluate certain defendants
committed to a state hospital. A patient determined to be a high
security risk is required to be treated in the departments most
secure facilities, as specified.
This bill would, among other things, require a security and
violence risk assessment to be performed, as specified, on every
patient who has been committed to a state hospital pursuant to the
Penal Code. The bill would require a patient who is determined by the
security and violence risk assessment to have a high risk for
aggression to be placed in a specified treatment unit within a state
hospital, correctional facility, state prison psychiatric facility,
or other secure facility. The department would be required to review
and provide final approval, as well as recommendations for
appropriate placement, for a completed security and violence risk
assessment prior to the transfer of the patient to a treatment
facility.
The bill would require a patient who is determined to be a high
escape risk patient to be treated at a state prison psychiatric
facility, Atascadero State Hospital or Patton State Hospital, a
correctional facility, or other secure facility as defined by the
State Department of Mental Health.
The bill would require, on a quarterly basis beginning January 1,
2012, the department to provide a prescribed report to the public
safety committees of the Legislature on the level of aggression at
the state hospitals.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1370 of the Penal Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
shall proceed, and judgment may be pronounced.
(B) If the defendant is found mentally incompetent, the trial or
judgment shall be suspended until the person becomes mentally
competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, or to any
other available public or private treatment facility approved by the
community program director that will promote the defendant's speedy
restoration to mental competence, or placed on outpatient status as
specified in Section 1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall so
notify the court and defendant in writing. After this notification,
and opportunity for hearing, the court shall order that the defendant
be delivered by the sheriff to a state hospital or other secure
treatment facility for the care and treatment of the mentally
disordered unless the court makes specific findings on the record
that an alternative placement would provide more appropriate
treatment for the defendant and would not pose a danger to the health
and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court must serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be placed
and the district attorney for the county in which the violent felony
charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
confined in a state hospital or other treatment facility or placed on
outpatient status, the court shall proceed as follows:
(A) The court shall order the community program director or a
designee to evaluate the defendant and to submit to the court within
15 judicial days of the order a written recommendation as to whether
the defendant should be required to undergo outpatient treatment, or
committed to a state hospital or to any other treatment facility. No
person shall be admitted to a state hospital or other treatment
facility or placed on outpatient status under this section without
having been evaluated by the community program director or a
designee.
(B) The court shall hear and determine whether the defendant, with
advice of his or her counsel, consents to the administration of
antipsychotic medication, and shall proceed as follows:
(i) If the defendant, with advice of his or her counsel, consents,
the court order of commitment shall include confirmation that
antipsychotic medication may be given to the defendant as prescribed
by a treating psychiatrist pursuant to the defendant's consent. The
commitment order shall also indicate that, if the defendant withdraws
consent for antipsychotic medication, after the treating
psychiatrist complies with the provisions of subparagraph (C), the
defendant shall be returned to court for a hearing in accordance with
this subdivision regarding whether antipsychotic medication shall be
administered involuntarily.
(ii) If the defendant does not consent to the administration of
medication, the court shall hear and determine whether any of the
following is true:
(I) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder requires
medical treatment with antipsychotic medication, and, if the
defendant's mental disorder is not treated with antipsychotic
medication, it is probable that serious harm to the physical or
mental health of the patient will result. Probability of serious harm
to the physical or mental health of the defendant requires evidence
that the defendant is presently suffering adverse effects to his or
her physical or mental health, or the defendant has previously
suffered these effects as a result of a mental disorder and his or
her condition is substantially deteriorating. The fact that a
defendant has a diagnosis of a mental disorder does not alone
establish probability of serious harm to the physical or mental
health of the defendant.
(II) The defendant is a danger to others, in that the defendant
has inflicted, attempted to inflict, or made a serious threat of
inflicting substantial physical harm on another while in custody, or
the defendant had inflicted, attempted to inflict, or made a serious
threat of inflicting substantial physical harm on another that
resulted in his or her being taken into custody, and the defendant
presents, as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm on
others. Demonstrated danger may be based on an assessment of the
defendant's present mental condition, including a consideration of
past behavior of the defendant within six years prior to the time the
defendant last attempted to inflict, inflicted, or threatened to
inflict substantial physical harm on another, and other relevant
evidence.
(III) The people have charged the defendant with a serious crime
against the person or property; involuntary administration of
antipsychotic medication is substantially likely to render the
defendant competent to stand trial; the medication is unlikely to
have side effects that interfere with the defendant's ability to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a reasonable manner; less
intrusive treatments are unlikely to have substantially the same
results; and antipsychotic medication is in the patient's best
medical interest in light of his or her medical condition.
(iii) If the court finds any of the conditions described in clause
(ii) to be true, the court shall issue an order authorizing the
treatment facility to involuntarily administer antipsychotic
medication to the defendant when and as prescribed by the defendant's
treating psychiatrist. The court shall not order involuntary
administration of psychotropic medication under subclause (III) of
clause (ii) unless the court has first found that the defendant does
not meet the criteria for involuntary administration of psychotropic
medication under subclause (I) of clause (ii) and does not meet the
criteria under subclause (II) of clause (ii).
(iv) In all cases, the treating hospital, facility or program may
administer medically appropriate antipsychotic medication prescribed
by a psychiatrist in an emergency as described in subdivision (m) of
Section 5008 of the Welfare and Institutions Code.
(v) Any report made pursuant to paragraph (1) of subdivision (b)
shall include a description of any antipsychotic medication
administered to the defendant and its effects and side effects,
including effects on the defendant's appearance or behavior that
would affect the defendant's ability to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a defense
in a reasonable manner. During the time the defendant is confined in
a state hospital or other treatment facility or placed on outpatient
status, either the defendant or the people may request that the
court review any order made pursuant to this subdivision. The
defendant, to the same extent enjoyed by other patients in the state
hospital or other treatment facility, shall have the right to contact
the Patients' Rights Advocate regarding his or her rights under this
section.
(C) If the defendant consented to antipsychotic medication as
described in clause (i) of subparagraph (B), but subsequently
withdraws his or her consent, or, if involuntary antipsychotic
medication was not ordered pursuant to clause (ii) of subparagraph
(B), and the treating psychiatrist determines that antipsychotic
medication has become medically necessary and appropriate, the
treating psychiatrist shall make efforts to obtain informed consent
from the defendant for antipsychotic medication. If informed consent
is not obtained from the defendant, and the treating psychiatrist is
of the opinion that the defendant lacks capacity to make decisions
regarding antipsychotic medication as specified in subclause (I) of
clause (ii) of subparagraph (B), or that the defendant is a danger to
others as specified in subclause (II) of clause (ii) of subparagraph
(B), the committing court shall be notified of this, including an
assessment of the current mental status of the defendant and the
opinion of the treating psychiatrist that involuntary antipsychotic
medication has become medically necessary and appropriate. The court
shall provide notice to the prosecuting attorney and to the attorney
representing the defendant and shall set a hearing to determine
whether involuntary antipsychotic medication should be ordered in the
manner described in subparagraph (B).
(D) (i) If the treating psychiatrist determines that antipsychotic
medication has become medically necessary and appropriate pursuant
to subparagraph (C), he or she shall file, with 24 hours of that
determination, a petition with the committing court for issuance of
an emergency order. For purposes of this subparagraph, the treating
psychiatrist shall not be required to pay or deposit any fee for the
filing of the petition or other document or paper related to the
petition.
(ii) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
preliminary hearing, no later than the first court day commencing
after a period of 48 hours after the determination that antipsychotic
medication has become medically necessary and appropriate, to
establish probable cause for grounds to administer antipsychotic
medication.
(iii) The court shall render its decision on the petition no later
than the first court day following a period of 72 hours after the
determination that antipsychotic medication has become medically
necessary and appropriate.
(iv) If, as a result of the preliminary hearing, the court
determines that probable cause continues to exist for the
administration of antipsychotic medication, the court may issue an
order authorizing the administration of that medication on an
emergency basis after finding on the record, based on clear and
convincing evidence, that both of the following apply:
(I) The defendant lacks capacity to make decisions regarding
antipsychotic medication as specified in subclause (I) of clause (ii)
of subparagraph (B), or the defendant is a danger to others as
specified in subclause (II) of clause (ii) of subparagraph (B).
(II) No other appropriate means are available to mitigate the
patient's situation.
(v) Antipsychotic medication may be provided pursuant to an
emergency order issued pursuant to this subparagraph for no more than
14 days, exclusive of Saturdays, Sundays, and legal holidays,
pending a hearing to be held not later than those same 14 days,
pursuant to clause (ii) of subparagraph (B) and any order that may be
issued pursuant to clause (iii) of subparagraph (B).
(3) When the court orders that the defendant be confined in a
state hospital or other public or private treatment facility, the
court shall provide copies of the following documents which shall be
taken with the defendant to the state hospital or other treatment
facility where the defendant is to be confined:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) Any arrest reports prepared by the police department or other
law enforcement agency.
(F) Any court-ordered psychiatric examination or evaluation
reports.
(G) The community program director's placement recommendation
report.
(H) Records of any finding of mental incompetence pursuant to this
chapter arising out of a complaint charging a felony offense
specified in Section 290 or any pending Section 1368 proceeding
arising out of a charge of a Section 290 offense.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall select the
hospital in accordance with the policies established by the State
Department of Mental Health.
(6) (A) If the defendant is committed or transferred to a state
hospital pursuant to this section, the court may, upon receiving the
written recommendation of the medical director of the state hospital
and the community program director that the defendant be transferred
to a public or private treatment facility approved by the community
program director, order the defendant transferred to that facility.
If the defendant is committed or transferred to a public or private
treatment facility approved by the community program director, the
court may, upon receiving the written recommendation of the community
program director, transfer the defendant to a state hospital or to
another public or private treatment facility approved by the
community program director. In the event of dismissal of the criminal
charges before the defendant recovers competence, the person shall
be subject to the applicable provisions of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code). Where either the defendant or the
prosecutor chooses to contest either kind of order of transfer, a
petition may be filed in the court for a hearing, which shall be held
if the court determines that sufficient grounds exist. At the
hearing, the prosecuting attorney or the defendant may present
evidence bearing on the order of transfer. The court shall use the
same standards as are used in conducting probation revocation
hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
(B) If the defendant is initially committed to a state hospital or
secure treatment facility pursuant to clause (ii) or (iii) of
subparagraph (B) of paragraph (1) and is subsequently transferred to
any other facility, copies of the documents specified in paragraph
(3) shall be taken with the defendant to each subsequent facility to
which the defendant is transferred. The transferring facility shall
also notify the appropriate law enforcement agency or agencies having
local jurisdiction at the site of the new facility that the
defendant is a person subject to clause (ii) or (iii) of subparagraph
(B) of paragraph (1).
(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the community program director for
the county or region of commitment, or a designee, concerning the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, the outpatient treatment staff
shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, where the defendant is confined
in a treatment facility, the medical director of the hospital or
person in charge of the facility shall report in writing to the court
and the community program director or a designee regarding the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, after the initial 90-day report,
the outpatient treatment staff shall report to the community program
director on the defendant's progress toward recovery, and the
community program director shall report to the court on this matter
at six-month intervals. A copy of these reports shall be provided to
the prosecutor and defense counsel by the court. If the report
indicates that there is no substantial likelihood that the defendant
will regain mental competence in the foreseeable future, the
committing court shall order the defendant to be returned to the
court for proceedings pursuant to paragraph (2) of subdivision (c).
The court shall transmit a copy of its order to the community program
director or a designee.
(2) Any defendant who has been committed or has been on outpatient
status for 18 months and is still hospitalized or on outpatient
status shall be returned to the committing court where a hearing
shall be held pursuant to the procedures set forth in Section 1369.
The court shall transmit a copy of its order to the community program
director or a designee.
(3) If it is determined by the court that no treatment for the
defendant's mental impairment is being conducted, the defendant shall
be returned to the committing court. The court shall transmit a copy
of its order to the community program director or a designee.
(4) At each review by the court specified in this subdivision, the
court shall determine if the security level of housing and treatment
is appropriate and may make an order in accordance with its
determination.
(c) (1) At the end of three years from the date of commitment or a
period of commitment equal to the maximum term of imprisonment
provided by law for the most serious offense charged in the
information, indictment, or misdemeanor complaint, whichever is
shorter, a defendant who has not recovered mental competence shall be
returned to the committing court. The court shall notify the
community program director or a designee of the return and of any
resulting court orders.
(2) Whenever any defendant is returned to the court pursuant to
paragraph (1) or (2) of subdivision (b) or paragraph (1) of this
subdivision and it appears to the court that the defendant is gravely
disabled, as defined in subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall order the conservatorship investigator of the county
of commitment of the defendant to initiate conservatorship
proceedings for the defendant pursuant to Chapter 3 (commencing with
Section 5350) of Part 1 of Division 5 of the Welfare and Institutions
Code. Any hearings required in the conservatorship proceedings shall
be held in the superior court in the county that ordered the
commitment. The court shall transmit a copy of the order directing
initiation of conservatorship proceedings to the community program
director or a designee, the sheriff and the district attorney of the
county in which criminal charges are pending, and the defendant's
counsel of record. The court shall notify the community program
director or a designee, the sheriff and district attorney of the
county in which criminal charges are pending, and the defendant's
counsel of record of the outcome of the conservatorship proceedings.
(3) If a change in placement is proposed for a defendant who is
committed pursuant to subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall provide notice and an opportunity to be heard with
respect to the proposed placement of the defendant to the sheriff and
the district attorney of the county in which criminal charges are
pending.
(4) Where the defendant is confined in a treatment facility, a
copy of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) The criminal action remains subject to dismissal pursuant to
Section 1385. If the criminal action is dismissed, the court shall
transmit a copy of the order of dismissal to the community program
director or a designee.
(e) If the criminal charge against the defendant is dismissed, the
defendant shall be released from any commitment ordered under this
section, but without prejudice to the initiation of any proceedings
that may be appropriate under the Lanterman-Petris-Short Act, Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code.
(f) As used in this chapter, "community program director" means
the person, agency, or entity designated by the State Department of
Mental Health pursuant to Section 1605 of this code and Section 4360
of the Welfare and Institutions Code.
(g) For the purpose of this section, "secure treatment facility"
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, any
facility licensed pursuant to Chapter 2 (commencing with Section
1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2
(commencing with Section 1569) of, Division 2 of the Health and
Safety Code, or any community board and care facility.
SEC. 2. Section 7230 of the Welfare and
Institutions Code is repealed.
7230. Those patients determined to be high security risk
patients, as described in Section 7228, shall be treated at
Atascadero State Hospital or Patton State Hospital, a correctional
facility, or other secure facility as defined by the State Department
of Mental Health, but shall not be treated at Metropolitan State
Hospital or Napa State Hospital. Metropolitan State Hospital and Napa
State Hospital shall treat only low- to moderate-risk patients, as
defined by the State Department of Mental Health.
SEC. 3. Section 7230 is added to the
Welfare and Institutions Code , to read:
7230. (a) A security and violence risk assessment shall be
performed on every patient who has been committed to a state hospital
pursuant to the Penal Code. This assessment shall be based upon the
patient's criminal history and incidents of aggression,\ resulting in
the hospitilization of staff or other patients, escape attempts
since incarceration or commitment, and related psychological factors.
The staff that completes the assessment shall include both security
and clinical personnel.
(b) The security and violence risk assessment shall be performed
at the time of commitment and annually thereafter, after a serious
incident of aggression resulting in the hospitilization of the
patient, staff, or other patients, after an escape attempt and prior
to the transfer of the patient to a another site for treatment.
(c) A patient who is determined by the security and violence risk
assessment to have a high risk for aggression shall be placed in a
treatment unit within a state hospital, correctional facility, state
prison psychiatric facility, or other secure facility that has a
sufficient-enhanced security and violence treatment program to ensure
the safety of the patient, staff, and other patients who reside at
the facility, as well as to appropriately provide
enhanced treatment to address the
underlying causes of the risk of aggression, consistent with
generally accepted professional standards. The department shall
review and provide final approval for a completed security and
violence risk assessment, as well as recommendations for the
appropriate placement of the patient, prior to the transfer of the
patient to another site for treatment. If a serious security incident
occurs after the transfer of the patient to another site for
treatment, the patient shall be transferred to the most secure
setting within the institution while a new security and violence risk
assessment is completed.
(d) A patient who is determined to be a high escape risk patient,
as described in Section 7228, shall be treated at a state prison
psychiatric facility, Atascadero State Hospital or Patton State
Hospital, a correctional facility, or other secure facility, as
defined by the State Department of Mental Health, but shall not be
treated at the Metropolitan State Hospital or Napa State Hospital.
The Metropolitan State Hospital and Napa State Hospital shall treat
patients at low to moderate risk for escape, as defined by the State
Department of Mental Health.
(e) On a quarterly basis beginning January 1, 2012, the department
shall report to the Senate Committee on Public Safety and the
Assembly Committee on Public Safety, on the level of security or
violence risk at the state hospitals. This report shall include, but
not be limited to, the number of aggressive incidents leading to
hospitalization of staff or another patient, the number of deaths
which have occurred as a direct or indirect result of an aggressive
incident, and the number of unique patients involved in those
incidents during the reporting period. On an annual basis, the
reports shall include a summary of types of corrective action taken,
the agency's security and violence prevention plan, the perceived
effectiveness of the plan, and a summary of issues that may require
the assistance of the Legislature to ensure the safety of patients
and staff at the state hospitals.
SEC. 4. Section 7301 of the Welfare and
Institutions Code is amended to read:
7301. (a) Whenever, in the opinion of the
Director of Mental Health and with the approval of the Director of
Corrections and Rehabilitation , any person who has been
committed to a state hospital pursuant to provisions of
the Penal Code or who has been placed in a state hospital
temporarily for observation pursuant to, or who has been committed to
a state hospital pursuant to Article 1 (commencing with Section
6300) of Chapter 2 of Part 2 of Division 6 of this code needs care
and treatment under conditions of custodial security which can be
better provided within the Department of Corrections and
Rehabilitation , such this person
may be transferred for such these
purposes from an institution under the jurisdiction of the State
Department of Mental Health to an institution under the jurisdiction
of the Department of Corrections and Rehabilitation .
However if this person commits an act while housed at a state
hospital that result ed in the death, rape, or
life - threatening injury of another
person or staff member of the state hospital, that person shall
automatically be transferred directly to custodial care and shall not
be returned to a state hospital setting until a hearing, as
described below has occurred.
(b) At the time of the transfer of any individual pursuant to this
code, the medical director of the state hospital shall submit a
written report as to the reasons for the transfer to the committing
court, the district attorney, and the individual's attorney of
record. The court shall, upon receiving the written recommendation of
the medical director of the state hospital, hold a hearing on the
transfer. If the court determines, by a preponderance of the
evidence, that the individual represents a substantial danger of
physical harm to others in a state hospital setting, the court shall
order the individual remain in a custodial setting. If there was not
sufficient evidence to make this finding, the individual shall be
transferred back to a state hospital.
(c) After a transfer to a custodial setting, the Department of
Corrections and Rehabilitation shall make regular assessments of
whether the individual continues to represent a substantial danger of
physical harm to others in a state hospital. If the Department of
Corrections and Rehabilitation determines that the individual who has
been transferred to a custodial setting pursuant to this section, no
longer represents a substantial danger of physical harm to others in
a state hospital setting, the Department of Corrections and
Rehabilitation shall provide a written recommendation to the
committing court, the district attorney, and the individual's
attorney of record after which the court shall hold a hearing on the
request. If the court determines, by the preponderance of the
evidence, that the individual no longer represents a substantial
danger of physical harm to others in a state hospital setting, the
court shall order the individual be transferred back to a state
hospital.
(d) If a transfer of an individual to a custodial setting occurs
pursuant to this section, the State Department of Mental Health in
collaboration with the State Department of Corrections and
Rehabilitation shall be responsible for providing all required court
reports required under the individuals prevailing commitment to the
State Department of Mental Health.
Persons
(e) Persons so transferred shall
not be subject to the provisions of Section 4500,
4501, 4501.5, 4502, 4530, or 4531 of the Penal Code. However, they
shall be subject to the general rules of the Director of Corrections
and of the facility where they are confined and any correctional
employee dealing with such these
persons during the course of an escape or attempted escape, a fight
or a riot, shall have the same rights, privileges and immunities as
if the person transferred had been committed to the Director of
Corrections.
Whenever
(f) Whenever a person is
transferred to an institution under the jurisdiction of the
Department of Corrections and Rehabilitation pursuant to
this section, any report, opinion, or certificate required or
authorized to be filed with the court which committed such
the person to a state hospital, or ordered
such the person placed therein, shall
be prepared and filed with the court by the head of the institution
in which the person is actually confined or by the designee of
such this head.