Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1265

Introduced by Assembly Member Conway

(Coauthors: Assembly Members Achadjian, Beth Gaines, Gorell, Hagman, Harkey, begin delete and Morrell end delete begin insert Morrell, and Nestande end insert )

February 22, 2013

An act to amend Section 5346 of, and to add Section 5349.3 to, the Welfare and Institutions Code, relating to mental health.

LEGISLATIVE COUNSEL’S DIGEST

AB 1265, as amended, Conway. Mental health: assisted outpatient treatment.

Existing law, known as Laura’s Law, until January 1, 2017, regulates designated assisted outpatient treatment services, which a county may, by resolution, choose to provide for its residents. In a county where assisted outpatient treatment services are available, a court may order a person to obtain assisted outpatient treatment for an initial period not to exceed 6 months if the court finds the requisite criteria are met, as specified.

This bill would authorize the court to order a person to obtain assisted outpatient treatment for an initial period not to exceed 12 months.

Existing law, the Lanterman-Petris-Short Act, authorizes the involuntary detention for a period of 72 hours for evaluation of persons who are dangerous to self or others, or gravely disabled, as defined. Existing law provides that if a person is detained for 72 hours or under court order for evaluation and has received an evaluation, he or she may be certified for not more than 14 days of intensive treatment related to the mental disorder or impairment by chronic alcoholism if certain conditions are met, as specified. Under existing law, a person may be certified for intensive treatment for an additional period of time if he or she remains gravely disabled or unwilling or unable to accept voluntary treatment or if he or she was suicidal, as specified, or may be confined for postcertification treatment for up to 180 days if he or she has, among other things, attempted or inflicted physical harm upon another person, as specified.

This bill would begin delete provide that end delete begin insert , end insert upon the release of a person from intensive treatment or postcertification treatment described above, begin insert authorize end insert the professional staff of the agency or facility that provided the treatment begin delete shall end delete begin insert to end insert evaluate whether the person meets the criteria for assisted outpatient treatment. This bill would authorize the professional staff to request the county mental health director to file a petition in the superior court for assisted outpatient treatment if that person meets that criteria. This bill would provide that these provisions apply only in a county that elects to implement Laura’s Law.

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 5346 of the Welfare and Institutions Code
is amended to read:

5346.  

(a) In any county where services are available as
provided in Section 5348, a court may order a person who is the
subject of a petition filed pursuant to this section to obtain assisted
outpatient treatment if the court finds, by clear and convincing
evidence, that the facts stated in the verified petition filed in
accordance with this section are true and establish that all of the
requisite criteria set forth in this section are met, including, but
not limited to, each of the following:

(1) The person is 18 years of age or older.

(2) The person is suffering from a mental illness as defined in
paragraphs (2) and (3) of subdivision (b) of Section 5600.3.

(3) There has been a clinical determination that the person is
unlikely to survive safely in the community without supervision.

(4) The person has a history of lack of compliance with
treatment for his or her mental illness, in that at least one of the
following is true:

(A) The person’s mental illness has, at least twice within the
last 36 months, been a substantial factor in necessitating
hospitalization, or receipt of services in a forensic or other mental
health unit of a state correctional facility or local correctional
facility, not including any period during which the person was
hospitalized or incarcerated immediately preceding the filing of
the petition.

(B) The person’s mental illness has resulted in one or more acts
of serious and violent behavior toward himself or herself or
another, or threats, or attempts to cause serious physical harm to
himself or herself or another within the last 48 months, not
including any period in which the person was hospitalized or
incarcerated immediately preceding the filing of the petition.

(5) The person has been offered an opportunity to participate
in a treatment plan by the director of the local mental health
department, or his or her designee, provided the treatment plan
includes all of the services described in Section 5348, and the
person continues to fail to engage in treatment.

(6) The person’s condition is substantially deteriorating.

(7) Participation in the assisted outpatient treatment program
would be the least restrictive placement necessary to ensure the
person’s recovery and stability.

(8) In view of the person’s treatment history and current
behavior, the person is in need of assisted outpatient treatment in
order to prevent a relapse or deterioration that would be likely to
result in grave disability or serious harm to himself or herself, or
to others, as defined in Section 5150.

(9) It is likely that the person will benefit from assisted
outpatient treatment.

(b) (1) A petition for an order authorizing assisted outpatient
treatment may be filed by the county mental health director, or his
or her designee, in the superior court in the county where the person
who is the subject of the petition is present or reasonably believed
to be present.

(2) A request may be made only by any of the following persons
to the county mental health department for the filing of a petition
to obtain an order authorizing assisted outpatient treatment:

(A) Any person 18 years of age or older with whom the person
who is the subject of the petition resides.

(B) Any person who is the parent, spouse, or sibling or child
18 years of age or older of the person who is the subject of the
petition.

(C) The director of any public or private agency, treatment
facility, charitable organization, or licensed residential care facility
providing mental health services to the person who is the subject
of the petition in whose institution the subject of the petition
resides.

(D) The director of a hospital in which the person who is the
subject of the petition is hospitalized.

(E) A licensed mental health treatment provider who is either
supervising the treatment of, or treating for a mental illness, the
person who is the subject of the petition.

(F) A peace officer, parole officer, or probation officer assigned
to supervise the person who is the subject of the petition.

(G) The professional staff of an agency or facility, as specified
in Section 5349.3.

(3) Upon receiving a request pursuant to paragraph (2), the
county mental health director shall conduct an investigation into
the appropriateness of the filing of the petition. The director shall
file the petition only if he or she determines that there is a
reasonable likelihood that all the necessary elements to sustain the
petition can be proven in a court of law by clear and convincing
evidence.

(4) The petition shall state all of the following:

(A) Each of the criteria for assisted outpatient treatment as set
forth in subdivision (a).

(B) Facts that support the petitioner’s belief that the person who
is the subject of the petition meets each criterion, provided that
the hearing on the petition shall be limited to the stated facts in
the verified petition, and the petition contains all the grounds on
which the petition is based, in order to ensure adequate notice to
the person who is the subject of the petition and his or her counsel.

(C) That the person who is the subject of the petition is present,
or is reasonably believed to be present, within the county where
the petition is filed.

(D) That the person who is the subject of the petition has the
right to be represented by counsel in all stages of the proceeding
under the petition, in accordance with subdivision (c).

(5) The petition shall be accompanied by an affidavit of a
licensed mental health treatment provider designated by the local
mental health director who shall state, if applicable, either of the
following:

(A) That the licensed mental health treatment provider has
personally examined the person who is the subject of the petition
no more than 10 days prior to the submission of the petition, the
facts and reasons why the person who is the subject of the petition
meets the criteria in subdivision (a), that the licensed mental health
treatment provider recommends assisted outpatient treatment for
the person who is the subject of the petition, and that the licensed
mental health treatment provider is willing and able to testify at
the hearing on the petition.

(B) That no more than 10 days prior to the filing of the petition,
the licensed mental health treatment provider, or his or her
designee, has made appropriate attempts to elicit the cooperation
of the person who is the subject of the petition, but has not been
successful in persuading that person to submit to an examination,
that the licensed mental health treatment provider has reason to
believe that the person who is the subject of the petition meets the
criteria for assisted outpatient treatment, and that the licensed
mental health treatment provider is willing and able to examine
the person who is the subject of the petition and testify at the
hearing on the petition.

(c) The person who is the subject of the petition shall have the
right to be represented by counsel at all stages of a proceeding
commenced under this section. If the person so elects, the court
shall immediately appoint the public defender or other attorney to
assist the person in all stages of the proceedings. The person shall
pay the cost of the legal services if he or she is able.

(d) (1) Upon receipt by the court of a petition submitted
pursuant to subdivision (b), the court shall fix the date for a hearing
at a time not later than five days from the date the petition is
received by the court, excluding Saturdays, Sundays, and holidays.
The petitioner shall promptly cause service of a copy of the
petition, together with written notice of the hearing date, to be
made personally on the person who is the subject of the petition,
and shall send a copy of the petition and notice to the county office
of patient rights, and to the current health care provider appointed
for the person who is the subject of the petition, if that provider is
known to the petitioner. Continuances shall be permitted only for
good cause shown. In granting continuances, the court shall
consider the need for further examination by a physician or the
potential need to provide expeditiously assisted outpatient
treatment. Upon the hearing date, or upon any other date or dates
to which the proceeding may be continued, the court shall hear
testimony. If it is deemed advisable by the court, and if the person
who is the subject of the petition is available and has received
notice pursuant to this section, the court may examine in or out of
court the person who is the subject of the petition who is alleged
to be in need of assisted outpatient treatment. If the person who is
the subject of the petition does not appear at the hearing, and
appropriate attempts to elicit the attendance of the person have
failed, the court may conduct the hearing in the person’s absence.
If the hearing is conducted without the person present, the court
shall set forth the factual basis for conducting the hearing without
the person’s presence.

(2) The court shall not order assisted outpatient treatment unless
an examining licensed mental health treatment provider, who has
personally examined, and has reviewed the available treatment
history of, the person who is the subject of the petition within the
time period commencing 10 days before the filing of the petition,
testifies in person at the hearing.

(3) If the person who is the subject of the petition has refused
to be examined by a licensed mental health treatment provider,
the court may request that the person consent to an examination
by a licensed mental health treatment provider appointed by the
court. If the person who is the subject of the petition does not
consent and the court finds reasonable cause to believe that the
allegations in the petition are true, the court may order any person
designated under Section 5150 to take into custody the person who
is the subject of the petition and transport him or her, or cause him
or her to be transported, to a hospital for examination by a licensed
mental health treatment provider as soon as is practicable.
Detention of the person who is the subject of the petition under
the order may not exceed 72 hours. If the examination is performed
by another licensed mental health treatment provider, the
examining licensed mental health treatment provider may consult
with the licensed mental health treatment provider whose
affirmation or affidavit accompanied the petition regarding the
issues of whether the allegations in the petition are true and whether
the person meets the criteria for assisted outpatient treatment.

(4) The person who is the subject of the petition shall have all
of the following rights:

(A) To adequate notice of the hearings to the person who is the
subject of the petition, as well as to parties designated by the person
who is the subject of the petition.

(B) To receive a copy of the court-ordered evaluation.

(C) To counsel. If the person has not retained counsel, the court
shall appoint a public defender.

(D) To be informed of his or her right to judicial review by
habeas corpus.

(E) To be present at the hearing unless he or she waives the
right to be present.

(F) To present evidence.

(G) To call witnesses on his or her behalf.

(H) To cross-examine witnesses.

(I) To appeal decisions, and to be informed of his or her right
to appeal.

(5) (A) If after hearing all relevant evidence, the court finds
that the person who is the subject of the petition does not meet the
criteria for assisted outpatient treatment, the court shall dismiss
the petition.

(B) If after hearing all relevant evidence, the court finds that
the person who is the subject of the petition meets the criteria for
assisted outpatient treatment, and there is no appropriate and
feasible less restrictive alternative, the court may order the person
who is the subject of the petition to receive assisted outpatient
treatment for an initial period not to exceed 12 months. In
fashioning the order, the court shall specify that the proposed
treatment is the least restrictive treatment appropriate and feasible
for the person who is the subject of the petition. The order shall
state the categories of assisted outpatient treatment, as set forth in
Section 5348, that the person who is the subject of the petition is
to receive, and the court may not order treatment that has not been
recommended by the examining licensed mental health treatment
provider and included in the written treatment plan for assisted
outpatient treatment as required by subdivision (e). If the person
has executed an advance health care directive pursuant to Chapter
2 (commencing with Section 4650) of Part 1 of Division 4.7 of
the Probate Code, any directions included in the advance health
care directive shall be considered in formulating the written
treatment plan.

(6) If the person who is the subject of a petition for an order for
assisted outpatient treatment pursuant to subparagraph (B) of
paragraph (5) refuses to participate in the assisted outpatient
treatment program, the court may order the person to meet with
the assisted outpatient treatment team designated by the director
of the assisted outpatient treatment program. The treatment team
shall attempt to gain the person’s cooperation with treatment
ordered by the court. The person may be subject to a 72-hour hold
pursuant to subdivision (f) only after the treatment team has
attempted to gain the person’s cooperation with treatment ordered
by the court, and has been unable to do so.

(e) Assisted outpatient treatment shall not be ordered unless the
licensed mental health treatment provider recommending assisted
outpatient treatment to the court has submitted to the court a written
treatment plan that includes services as set forth in Section 5348,
and the court finds, in consultation with the county mental health
director, or his or her designee, all of the following:

(1) That the services are available from the county, or a provider
approved by the county, for the duration of the court order.

(2) That the services have been offered to the person by the
local director of mental health, or his or her designee, and the
person has been given an opportunity to participate on a voluntary
basis, and the person has failed to engage in, or has refused,
treatment.

(3) That all of the elements of the petition required by this article
have been met.

(4) That the treatment plan will be delivered to the county
director of mental health, or to his or her appropriate designee.

(f) If, in the clinical judgment of a licensed mental health
treatment provider, the person who is the subject of the petition
has failed or has refused to comply with the treatment ordered by
the court, and, in the clinical judgment of the licensed mental health
treatment provider, efforts were made to solicit compliance, and,
in the clinical judgment of the licensed mental health treatment
provider, the person may be in need of involuntary admission to
a hospital for evaluation, the provider may request that persons
designated under Section 5150 take into custody the person who
is the subject of the petition and transport him or her, or cause him
or her to be transported, to a hospital, to be held up to 72 hours for
examination by a licensed mental health treatment provider to
determine if the person is in need of treatment pursuant to Section
5150. Any continued involuntary retention in a hospital beyond
the initial 72-hour period shall be pursuant to Section 5150. If at
any time during the 72-hour period the person is determined not
to meet the criteria of Section 5150, and does not agree to stay in
the hospital as a voluntary patient, he or she shall be released and
any subsequent involuntary detention in a hospital shall be pursuant
to Section 5150. Failure to comply with an order of assisted
outpatient treatment alone may not be grounds for involuntary
civil commitment or a finding that the person who is the subject
of the petition is in contempt of court.

(g) If the director of the assisted outpatient treatment program
determines that the condition of the patient requires further assisted
outpatient treatment, the director shall apply to the court, prior to
the expiration of the period of the initial assisted outpatient
treatment order, for an order authorizing continued assisted
outpatient treatment for a period not to exceed 180 days from the
date of the order. The procedures for obtaining any order pursuant
to this subdivision shall be in accordance with subdivisions (a) to
(f), inclusive. The period for further involuntary outpatient
treatment authorized by any subsequent order under this
subdivision may not exceed 180 days from the date of the order.

(h) At intervals of not less than 60 days during an assisted
outpatient treatment order, the director of the outpatient treatment
program shall file an affidavit with the court that ordered the
outpatient treatment affirming that the person who is the subject
of the order continues to meet the criteria for assisted outpatient
treatment. At these times, the person who is the subject of the order
shall have the right to a hearing on whether or not he or she still
meets the criteria for assisted outpatient treatment if he or she
disagrees with the director’s affidavit. The burden of proof shall
be on the director.

(i) During each 60-day period specified in subdivision (h), if
the person who is the subject of the order believes that he or she
is being wrongfully retained in the assisted outpatient treatment
program against his or her wishes, he or she may file a petition for
a writ of habeas corpus, thus requiring the director of the assisted
outpatient treatment program to prove that the person who is the
subject of the order continues to meet the criteria for assisted
outpatient treatment.

(j) Any person ordered to undergo assisted outpatient treatment
pursuant to this article, who was not present at the hearing at which
the order was issued, may immediately petition the court for a writ
of habeas corpus. Treatment under the order for assisted outpatient
treatment may not commence until the resolution of that petition.

SEC. 2.  

Section 5349.3 is added to the Welfare and Institutions
Code, to read:

5349.3.  

(a) Upon the release of a person from involuntary
treatment pursuant to Section 5257, 5264, 5270.35, or 5304, the
professional staff of the agency or facility that provided that
treatment begin delete shall end delete begin insert may end insert evaluate whether that person meets the criteria
established in subdivision (a) of Section 5346 for assisted
outpatient treatment.

(b) If that person meets the criteria in subdivision (a) of Section
5346, the professional staff of the agency or facility may request
the county mental health director, or his or her designee, to file a
petition in the superior court pursuant to subdivision (b) of Section
5346 for assisted outpatient treatment.

(c) This section shall apply only in counties that elect to
implement Laura’s Law pursuant to Section 5349.