California Legislature—2013–14 Regular Session

Assembly Bill No. 623

Introduced by Assembly Member Lowenthal

February 20, 2013

An act to amend Section 2603 of the Penal Code, relating to inmates.

LEGISLATIVE COUNSEL’S DIGEST

AB 623, as introduced, Lowenthal. Inmates: psychiatric medication: informed consent.

Existing law prohibits, except as specified, a person sentenced to imprisonment in a county jail from being administered any psychiatric medication without his or her prior informed consent.

This bill would instead prohibit, except as specified, a person confined in a county jail from being administered any psychiatric medication without his or her prior informed consent.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2603 of the Penal Code is amended to
read:

2603.  

(a) Except as provided in subdivision (b), begin delete no end delete begin insert a end insert person
sentenced to imprisonment begin insert or confined end insert in a county jail shall begin insert not end insert
be administered any psychiatric medication without his or her prior
informed consent.

(b) If a psychiatrist determines that an inmate should be treated
with psychiatric medication, but the inmate does not consent, the
inmate may be involuntarily treated with the medication. Treatment
may be given on either a nonemergency basis as provided in
subdivision (c), or on an emergency or interim basis as provided
in subdivision (d).

(c) A county department of mental health, or other designated
county department, may seek to initiate involuntary medication
on a nonemergency basis only if all of the following conditions
have been met:

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

(2) A psychiatrist or psychologist has determined that, as a result
of that mental disorder, the inmate is gravely disabled and does
not have the capacity to refuse treatment with psychiatric
medications, or is a danger to self or others.

(3) A psychiatrist has prescribed one or more psychiatric
medications for the treatment of the inmate’s disorder, has
considered the risks, benefits, and treatment alternatives to
involuntary medication, and has determined that the treatment
alternatives to involuntary medication are unlikely to meet the
needs of the patient.

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

(5) The inmate is provided a hearing before a superior court
judge, a court-appointed commissioner or referee, or a
court-appointed hearing officer, as specified in subdivision (c) of
Section 5334 of the Welfare and Institutions Code.

(6) The inmate is provided counsel at least 21 days prior to the
hearing, unless emergency or interim medication is being
administered pursuant to subdivision (d), in which case the inmate
would receive expedited access to counsel. The hearing shall be
held not more than 30 days after the filing of the notice with the
superior court, unless counsel for the inmate agrees to extend the
date of the hearing.

(7) The inmate and counsel are provided with written notice of
the hearing at least 21 days prior to the hearing, unless emergency
or interim medication is being administered pursuant to subdivision
(d), in which case the inmate would receive an expedited 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 psychiatric medication is recommended, the
expected benefits of the medication, any potential side effects and
risks to the inmate from the medication, and any alternatives to
treatment with the medication.

(B) Advise the inmate of the right to be present at the hearing,
the right to be represented by counsel at all stages of the
proceedings, the right to present evidence, and the right to
cross-examine witnesses. Counsel for the inmate shall have access
to all medical records and files of the inmate, but shall not have
access to the confidential section of the inmate’s central file which
contains materials unrelated to medical treatment.

(C) Inform the inmate of his or her right to appeal the
determination to the superior court or the court of appeal as
specified in subdivisions (e) and (f) of Section 5334 of the Welfare
and Institutions Code, and his or her right to file a petition for writ
of habeas corpus with respect to any decision of the county
department of mental health, or other designated county
department, to continue treatment with involuntary medication
after the superior court judge, court-appointed commissioner or
referee, or court-appointed hearing officer has authorized treatment
with involuntary medication.

(8) A superior court judge, a court-appointed commissioner or
referee, or a court-appointed hearing officer determines by clear
and convincing evidence that the inmate has a mental illness or
disorder, that as a result of that illness the inmate is gravely
disabled and lacks the capacity to consent to or refuse treatment
with psychiatric medications or is a danger to self or others if not
medicated, that there is no less intrusive alternative to involuntary
medication, and that the medication is in the inmate’s best medical
interest. In the event of any statutory notice issues with either initial
or renewal filings by the county department of mental health, or
other designated county department, the superior court judge,
court-appointed commissioner or referee, or court-appointed
hearing officer shall hear arguments as to why the case should be
heard, and shall consider factors such as the ability of the inmate’s
counsel to adequately prepare the case and to confer with the
inmate, the continuity of care, and, if applicable, the need for
protection of the inmate or institutional staff that would be
compromised by a procedural default.

(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
self 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 or she may receive involuntary
medication, and may seek a hearing to present new evidence, upon
good cause shown.

(d) Nothing in this section is intended to prohibit a physician
from taking appropriate action in an emergency. An emergency
exists when there is a sudden and marked change in an inmate’s
mental condition so that action is immediately necessary for the
preservation of life or the prevention of serious bodily harm to the
inmate or others, and it is impractical, due to the seriousness of
the emergency, to first obtain informed consent. If psychiatric
medication is administered during an emergency, the medication
shall only be that which is required to treat the emergency condition
and shall be administered for only so long as the emergency
continues to exist. If the clinicians of the county department of
mental health, or other designated county department, identify a
situation that jeopardizes the inmate’s health or well-being as the
result of a serious mental illness, and necessitates the continuation
of medication beyond the initial 72 hours pending the full mental
health hearing, the county department may seek to continue the
medication by giving 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. Treatment of the inmate
in a facility pursuant to Section 4011.6 shall not be required in
order to continue medication under this subdivision unless the
treatment is otherwise medically necessary. The notice shall be
served upon the inmate and counsel at the same time the inmate
is given the written notice that the involuntary medication
proceedings are being initiated and is appointed counsel as
provided in subdivision (c). The order may be issued ex parte upon
a showing that, in the absence of the medication the emergency
conditions are likely to recur. The request for an ex parte order
shall be supported by an affidavit from the psychiatrist or
psychologist showing specific facts. The inmate and the inmate’s
appointed counsel shall have two business days to respond to the
county department’s ex parte request to continue interim
medication, and may present facts supported by an affidavit in
opposition to the department’s request. A superior court judge, a
court-appointed commissioner or referee, or a court-appointed
hearing officer shall review the ex parte request and shall have
three business days to determine the merits of the department’s
request for an ex parte order. If an order is issued, the psychiatrist
may continue the administration of the medication until the hearing
described in paragraph (5) of subdivision (c) is held.

(1) If the county elects to seek an ex parte order pursuant to this
subdivision, the county department of mental health, or other
designated county department, shall file with the superior court,
and serve on the inmate and his or her counsel, the written notice
described in paragraph (7) of subdivision (c) within 72 hours of
commencing medication pursuant to this subdivision, unless either
of the following occurs:

(A) The inmate gives informed consent to continue the
medication.

(B) A psychiatrist determines that the psychiatric medication
is not necessary and administration of the medication is
discontinued.

(2) If medication is being administered pursuant to this
subdivision, the hearing described in paragraph (5) of subdivision
(c) shall commence within 21 days of the filing and service of the
notice, unless counsel for the inmate agrees to a different period
of time.

(3) With the exception of the timeline provisions specified in
paragraphs (1) and (2) for providing notice and commencement
of the hearing in emergency or interim situations, the inmate shall
be entitled to and be given the same due process protections as
specified in subdivision (c). The county department of mental
health, or other designated county department, shall prove the same
elements supporting the involuntary administration of psychiatric
medication and the superior court judge, court-appointed
commissioner or referee, or court-appointed hearing officer shall
be required to make the same findings described in subdivision
(c).

(e) The determination that an inmate may receive involuntary
medication shall be valid for one year from the date of the
determination, regardless of whether the inmate subsequently gives
his or her informed consent.

(f) If a determination has been made to involuntarily medicate
an inmate pursuant to subdivision (c) or (d), 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 pursuant
to the procedures set forth in subdivision (g).

(g) To renew an existing order allowing involuntary medication,
the county department of mental health, or other designated county
department, shall file with the superior court, and shall serve on
the inmate and his or her counsel, a written notice indicating the
department’s intent to renew the existing involuntary medication
order.

(1) 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.

(2) The inmate shall be entitled to, and shall be given, the same
due process protections as specified in subdivision (c).

(3) Renewal orders shall be valid for one year from the date of
the hearing.

(4) An order renewing an existing order shall be granted based
on clear and convincing evidence that the inmate has a serious
mental disorder that requires treatment with psychiatric medication,
and that, but for the medication, the inmate would revert to the
behavior that was the basis for the prior order authorizing
involuntary medication, coupled with evidence that the inmate
lacks insight regarding his or her need for the medication, such
that it is unlikely that the inmate would be able to manage his or
her own medication and treatment regimen. No new acts need be
alleged or proven begin insert in order to renew an existing order end insert .

(5) If the county department of mental health, or other
designated county department, wishes to add a basis to an existing
order, it shall give the inmate and the inmate’s counsel notice in
advance of the hearing via a renewal notice or supplemental
petition. Within the renewal notice or supplemental petition, as
described in subdivision (g), the county department of mental
health, or other designated county department, shall specify what
additional basis is being alleged and what qualifying conduct within
the past year supports that additional basis. The county department
of mental health, or other designated county department, shall
prove the additional basis and conduct by clear and convincing
evidence at a hearing as specified in subdivision (c).

(6) The hearing on any petition to renew an order for involuntary
medication shall be conducted prior to the expiration of the current
order.

(h) In the event of a conflict between the provisions of this
section and the Administrative Procedure Act (Chapter 4.5
(commencing with Section 11400) of Part 1 of Division 3 of the
Government Code), this section shall control.