BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 610 (Achadjian)
As Amended April 16, 2013
Hearing date: June 18, 2013
Penal Code
JM:mc
MENTALLY DISORDERED OFFENDERS
REIMBURSEMENT FOR HEARINGS ON INVOLUNTARY MEDICATION
HISTORY
Source: San Luis Obispo County Board of Supervisors
Prior Legislation: AB 1016 (Achadjian) - Ch. 660 Stats. 2011
SB 1562 (Maldonado) - Ch. 812, Stats. 2006
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUE
WHERE TREATING PHYSICIANS AT THE DEPARTMENT OF STATE HOSPITALS SEEK
AN ORDER FOR INVOLUNTARY MEDICATION OF A MENTALLY DISORDERED
OFFENDER (MDO) HELD ON AN EXTENDED COMMITMENT, SHOULD THE COUNTY
THAT SOUGHT THE MDO'S EXTENDED COMMITMENT PAY THE COSTS OF THE
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HEARING TO AUTHORIZE INVOLUNTARY MEDICATION?
PURPOSE
The purpose of this bill is to provide that where a mentally
disordered offender has been committed for treatment after
expiration of the parole term, the county seeking the extended
commitment shall pay the costs for any hearing to authorize
involuntary administration of psychotropic medication.
Existing law provides that a prisoner found to be a mentally
disordered offender (MDO) can be required to receive mental
treatment as a condition of parole. At the end of the parole
period, if the person still meets the definition of an MDO, he
or she may be committed for treatment annually. (Pen. Code §
2960 et seq.)
Existing law sets out the following MDO commitment criteria,
procedures and features:
MDO was committed to prison for a specified violent
crime.
MDO has a severe mental disorder that caused or
contributed to the crime of commitment.
A severe mental disorder is a disorder that
substantially impairs a person's thought, perception of
reality, emotional processes or judgment, or that grossly
impairs behavior or involves an acute brain syndrome. It
does not include a personality disorder.
MDO must have received 90 days of in-prison treatment in
the year prior to release.
Experts found that the prisoner poses a substantial
danger of physical harm if released.
Board of Parole Hearings (BPH) holds a hearing on
whether inmate is an MDO.
Inmate can demand jury trial at which the state must
prove MDO status beyond a reasonable doubt. (Pen. Code §
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2962, subds. (a)-(f).)
Existing law provides that at the end of an MDO's parole, the
state may petition to extend the MDO commitment annually.
Annual commitments must meet the same standards and include the
same trial procedures as an initial commitment during parole.
(Pen. Code § 2970.)
Existing law provides that where an inmate who refused MDO
treatment as a condition of parole is due for release from
prison without parole, the California Department of Corrections
and Rehabilitation (CDCR) shall request the district attorney in
the county from which the inmate was sentenced to prison to seek
involuntary MDO commitment of the inmate. The commitment is for
one year, which can be renewed annually under the same
procedures as the initial commitment. (Pen. Code § 2970.)
Existing law provides that where the Department of Mental Health
(DMH) determines that an MDO's mental disorder is in remission
and can be kept in remission, DMH shall discontinue treatment
and notify the Board of Parole Hearings. (Pen. Code § 2968.)
Existing law - the LPS Act - provides that a patient
involuntarily confined for mental illness (as gravely disabled
or a danger to self or others) may refuse medication unless 1)
the person is unable to make rational decisions about his or
her medical treatment; 2) medication is administered in an
emergency; 3) the person is a demonstrated danger (through
prior conduct) and was recently dangerous. (Welf. & Inst. Code
§ 5000 et seq; In re Qawi (2004) 32 Cal.4th 1, 20-21.)
Existing law provides, in standards largely equivalent to those
applied under the LPS Act, that a person involuntary confined
for treatment of mental illness as a mentally disordered
offender (MDO) can be involuntarily treated with antipsychotic
medication in a non-emergency situation where the MDO is
determined by a court to be either 1) incompetent to refuse
medication (unable to make rational medical decisions); or 2) a
danger to others within the meaning of Welfare and Institutions
Code section 5300 (the LPS section for 180 day commitments of
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dangerous persons). (In re Qawi, supra, (2004) 32 Cal.4th 1,
27-28.)
Existing law entitles a city, county or superior court to
reimbursement for reasonable and necessary costs connected with
state prisons or prisoners in connection with any of the
following:
any crime committed in a state prison, whether by a
prisoner, employee, or other person;
any crime committed by a prisoner in furtherance of an
escape, as specified;
any hearing on any return of a writ of habeas corpus
prosecuted by or on behalf of a prisoner;
any trial or hearing on the question of the sanity of a
prisoner;
costs not otherwise reimbursable related to extradition
of a prisoner;
costs incurred by a coroner in connection with the death
of a prisoner;
costs incurred in transporting a prisoner within the
host county or as requested by the prison facility or
incurred for extra security while the prisoner is outside a
state prison; or
any crime committed by a state inmate at a state
hospital for the care, treatment; and education of the
mentally disordered, as specified. (Pen. Code § 4750.)
Existing law states that no city, county, or other jurisdiction
may file for reimbursement under this section more than six
months after the close of the month in which the costs were
incurred. (Penal Code § 4750, subd. (j).)
Existing law states that a financial officer or other designate
official of a county shall make statement of non-treatment and
treatment costs related to a hearing for specified prison or
state hospital related offenses, to be certified by the judge of
the superior court of that county, and sent to the controller
for approval. Upon approval, the county shall be reimbursed for
all non-treatment related costs from a fund appropriated by the
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Legislature. (Welf. & Inst. Code § 4117, subd. (a).)
Existing law provides that the state shall reimburse counties
for non-treatment (trial and hearing) costs for MDOs, as
specified. (Pen. Code § 4750; Welf. & Inst. Code § 4117, subd.
(b).)
This bill requires, beginning on January 1, 2014, the county of
commitment to pay the non-treatment costs associated with any
hearing for an order seeking involuntary treatment with
psychotropic medication, or other medication that requires an
order, for a mentally disordered offender whose commitment in a
state hospital has been extended beyond the expiration of
parole.
This bill defines "county of commitment" to mean the county
seeking the continued treatment of a mentally disordered
offender (MDO) pursuant to existing law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
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to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
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dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Under existing law, where a court finds that an inmate
pending parole has a severe mental disorder, the State
may commit him or her to a state hospital. The county
where the individual committed the crime may also
request that the person be kept as patient in a state
hospital beyond parole.
Many patients treated in state hospitals must take
medication. However, in a case involving Kanuri
Surgery Qawi, the California Supreme Court ruled that
a court must rule that patients are incompetent to
make medical decisions or are dangerous to themselves
or others, within the meaning of Welfare and
Institutions Code §5300 before being involuntarily
medicated.
Last year, the then Department of Mental Health filed
approximately 100 petitions seeking orders for
involuntary treatment with psychotropic medication for
patients housed at Atascadero State Hospital.
Although the counties with a state hospital are not
statutorily required to carry out these hearings for
involuntary treatment cases, it was determined that it
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is in the best interest of the patient to hold the
hearings in the hospital because it minimizes
disruption to the patient's routine and reduces
security and transportation issues.
While patients are guaranteed an attorney for these
hearings, there are no provisions in state law that
make clear which government entity is responsible for
non-treatment costs when the host county provides the
services. This lack of clarity creates an unfair
financial burden on counties with state hospitals.
2. Mentally Disordered Offender Process
The mentally disordered offender (MDO) program is a process to
detain and treat a severely mentally ill prisoner who has
reached the end of his or her prison terms and remains a danger
to others because of his or her mental disorder. To be subject
to involuntary treatment on parole, the inmate must be evaluated
by two experts and certified as an MDO by the chief psychiatrist
of the Department of Corrections and Rehabilitation (CDCR).<1>
A parolee found to be an MDO by the evaluating experts can
demand a hearing before the Board of Parole Hearings (BPH). If
BPH concurs that the parolee is an MDO, he or she can then
demand a jury trial to contest the issue of his or her MDO
status. MDOs are usually treated by the Department of State
Hospitals (DSH) in a secure facility, such as Atascadero State
Hospital, although MDOs can be placed on outpatient status.
When an MDO's parole period is about to expire, the district
attorney of the county from which the MDO was sentenced to
prison can seeking a one-year extension of the MDO commitment to
the state hospital. These hearings included all the procedures
and rights of an original commitment trial.
3. Reimbursement to Counties for the Costs Associated with
Prisoners, Including MDO Trials
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<1> Other requirements apply, including that the parolee must
have received at least 90 days of psychiatric treatment in
prison during the prior year. (Pen. Code § 2962, subd. (d).)
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Existing law entitles a city, county, or superior court to
reimbursement for reasonable and necessary costs connected with
state prisons or prisoners which include non-treatment costs, as
specified. (Welf. & Inst. Code § 4117.) This includes
reimbursement from the state for all the non-treatment costs of
the hearings, if requested by the defendant, when an MDO is
paroled into a state hospital instead of serving parole time in
the community. When an MDO's parole period is about to expire,
existing law permits the district attorney, from the county of
the original conviction of the defendant (county of commitment),
to file a petition seeking a one-year extension of the MDO
commitment to the state hospital. The state also provides for
reimbursement to counties for the non-treatment costs of
hearings for continued treatment of an MDO after the parole
period has ended.
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4. Hearings for Involuntary Medication of Mentally Disordered
Offenders
The California Supreme Court in In re Qawi, supra, 32 Cal.4th 1,
23-27, held that an MDO's right to refuse medication is
equivalent to a person's right to do so under the LPS<2> Act
(Welf. & Inst. Code § 5000 et seq.). The LPS Act prescribes the
rules and standards for civil commitments for mental health
treatment generally. Specifically, an MDO has a right to refuse
psychotropic medication unless he or she lacks capacity to make
decisions concerning psychotropic medication, or is currently
dangerous. (Ibid.)
According to the author and sponsor, as a result of the ruling
in Qawi, approximately 100 petitions were filed last year by DSH
seeking orders for involuntary treatment with psychotropic
medication for patients housed at Atascadero State Hospital
(ASH), in San Luis Obispo County. Since current law does not
designate which entity is responsible for the payment of
non-treatment costs associated with these hearings, the county
and the state litigated the issue of which entity was
responsible for the cost of public defender services to
represent MDOs at these hearings.<3> It was ultimately decided
by the San Luis Obispo County Superior Court that the
responsibility for the non-treatment costs for in these 100
cases would be with the state and the county of commitment.
(San Luis Obispo Co. No. M1 12001-120101.) The court's order
was not challenged or appealed.
This bill places in statute the duty of the county that sought
an order for extended treatment following parole to reimburse
the county that provides counsel for the MDO in a hearing
concerning involuntary medication. The bill essentially
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<2> The Lanterman-Petris-Short Act, Ch. 1667, Stats. 1967.
<3> San Luis Obispo County did not need to seek reimbursement in
the litigation for services by the District Attorney, as the
Attorney General represents DSH in a hearing concerning an
involuntary medication order. Rather, San Luis Obispo County
provides public defenders to represent ASH patients in these
matters.
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codifies the existing court order.
5. Suggested Amendment to Clarify County of Commitment as County
from Which the MDO was Sentenced to Prison
The author may wish to consider whether the bill should be
amended to clarify, in the context of extended commitments
pursuant to Penal Code Section 2970, that the "county of
commitment" is the county that committed the person to prison.
This does appear to be the understanding of the courts and
litigants in these cases. For example, in ordering the county
of commitment to reimburse San Luis Obispo County for the costs
of attorneys for MDOs in medication hearings, the court referred
to the county of commitment as the "county of conviction."
The original commitment trial involves CDCR and BPH responding
to the MDO's demand for a trial, and the county from which the
MDO was sentenced to prison handles the extended
commitments when parole is done. For those unfamiliar with the
MDO process, it might appear that the county where the state
hospital is located is the county of commitment, as that is the
county where the treatment takes place.
The reference to the county of commitment in the procedures for
extended involuntary treatment appears to have been taken from
the not guilty by reason of insanity (NGI) statutes. In the NGI
context, the county of commitment is the county where the
defendant was charged with a crime and then committed for mental
health treatment. (People v. Kirkland (1994) 24 Cal.App.4th
891.) Similarly, the sexually violent predator (SVP) statutes
use the term "commitment" to refer to the order placing an SVP
in involuntary treatment. (Welf. & Inst. Code § 6604.1.) The
county that litigates the SVP commitment trial is the county
from which the alleged SVP was sentenced to prison. In the MDO
context, the county of commitment is the county from which the
person was sentenced to prison, not the county where the state
hospital to which the MDO has been committed is located.
SHOULD THE MDO EXTENDED TREATMENT PROVISIONS CLEARLY STATE THAT
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THE COUNTY OF COMMITMENT IS THE COUNTY FROM WHICH THE MDO WAS
SENTENCED TO PRISON?
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