BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 3 4 AB 1340 (Achadjian) 0 As Amended June 16, 2014 Hearing date: June 24, 2014 Welfare and Institutions Code JM:mc DEPARTMENT OF STATE HOSPITALS: HIGH SECURITY HOUSING AND TREATMENT PROGRAM HISTORY Source: California Association of Psychiatric Technicians; SEIU Local 1000; Union of American Physicians and Dentists/AFSCME-Local 206 Prior Legislation: AB 2399 (Allen) - Ch. 751, Stats. 2012 SB 391 (Solis) - Ch. 294, Stats. 1997 Support: Department of State Hospitals; Veterans Caucus of the California Democratic Party; private individuals Opposition:Disability Rights California; Legal Services for Prisoners with Children Assembly Floor Vote:<1> Ayes 77 - Noes 0 KEY ISSUE --------------------------- <1> The bill as it passed the Assembly was more limited in scope than the current version. (More) AB 1340 (Achadjian) PageB SHOULD THE DEPARTMENT OF STATE HOSPITALS ESTABLISH ENHANCED TREATMENT PROGRAMS AS A NEW CLASS OF CARE FOR THE MOST DANGEROUS PATIENTS? PURPOSE The purpose of this bill is to 1) establish a new high security Enhanced Treatment Program ("EPT") in Department of State Hospital facilities for patients deemed to be especially dangerous through a specified evaluation process; 2) require licensing of an ETP as an acute care psychiatric hospital until 2018 and then separately license ETPs; 3) authorize temporary referral of a patient to an EPT by a DSH psychiatrist or psychologist if the patient is at risk of "most dangerous behavior" when treated in a standard environment; 4) require evaluation by a forensic needs assessment panel (FNAP) after admission to determine if the patient should be treated in the ETP for up to 90 days; 4) require assessment by a forensic needs assessment team (FNAT) that includes a psychologist not on the treatment team; 5) authorize admission to an ETP for one year after evaluation at the end of the initial 90-day period and subsequent one-year admissions that include 90-day evaluations; 6) state that ETP patients cannot be effectively treated in an acute care psychiatric hospital, or a skilled nursing or an intermediate care facility; 7) define "high risk for most dangerous behavior" to mean a history of physical violence and a current danger of inflicting substantial harm on others in an in-patient setting; 8) specify that an ETP shall have the following features: staff to patient ratios of 1-5, individual patient rooms that can be locked from outside when clinically necessary with 24-hour visual access for staff; and 9) beginning in 2018 and ending in 2026, require DSH to monitor and evaluate the ETP and report to the Legislature every two years. Existing law establishes within the California Health and Human Services Agency the Department of State Hospitals (DSH). (Welf. & Inst. Code (WIC) § 4000.) (More) AB 1340 (Achadjian) PageC Existing law states that the primary purpose of a state hospital is the medical and nursing care of patients who are mentally disordered and that the efforts and direction of the officers and employees of each state hospital shall be directed to this end. (Welf. & Inst. Code § 4304.) Existing law provides that a person who was insane when he or she committed a crime is NGI. One is insane if he or she does not understand the nature of the charged act, or does not understand the difference between right and wrong. (Pen. Code §§ 25, subd. (b) and 1026.) Existing law requires a court to direct a person found to be NGI to the state hospital, a public or private treatment facility, or on outpatient status, unless it appears to the court that the sanity of the defendant has been fully restored. (Pen. Code § 1026, subd. (a).) Existing law provides that a mentally disordered prisoner who is committed to a mental health facility after a finding of NGI and escapes is guilty of an alternate misdemeanor/felony, punishable by up to one year in the county jail or one year and one day in state prison. (Pen. Code § 1026.4.) Existing law states that a person is IST where the person, as a result of a mental disorder or developmental disability is unable to understand the nature of the proceedings or unable to rationally assist counsel in the presentation of a defense. (Pen. Code § 1367, subd. (a).) Existing law requires the court to order that an IST defendant be placed in a state hospital, a public or private treatment facility, or on outpatient status. (Pen. Code § 1370.) Existing law mandates that criminal defendants who are found to be IST and escape from a mental health facility is guilty of an alternate misdemeanor/felony, punishable by up to one year in (More) AB 1340 (Achadjian) PageD the county jail or one year and one day in state prison. (Pen. Code § 1370.5.) Existing law provides that a prisoner found to be a mentally disordered offender (MDO) can be required to receive mental treatment in a state hospital as a condition of parole and may annually be civilly confined after his or her parole expires. (Pen. Code § 2960 et seq.) Existing law provides that a prison inmate pending release from prison who is found to be a sexually violent predator shall be involuntarily committed for treatment pursuant to a jury finding that he is a sexually violent predator (SVP). A "SVP" is defined as a person who has been convicted of a sexually violent offense, as specified, against one or more victims; and who has a diagnosable mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. (Welf. & Inst. Code §§ 6600 to 6608.) Existing law states that persons who, by reason of mental disorders, are "dangerous to others or to themselves or who are gravely disabled" may be involuntarily held for 72 hours, and held and treated for 14, 30, and 180 days following judicial hearings at each step. (Welf. & Inst. Code §§ 5000 et seq.) Existing law defines an "assault" as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another, and makes the general crime of assault punishable by a fine not exceeding $1,000, or by imprisonment in the county jail for not more than six months, or both the fine and imprisonment. (Pen. Code §§ 240 and 241, subd. (a).) Existing law provides that any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding $10,000, or by both the fine and imprisonment. (Pen. Code § 245, subd. (a)(4).) (More) AB 1340 (Achadjian) PageE Existing law defines "battery" as any willful and unlawful use of force or violence upon the person of another, and makes the general crime of battery punishable by a fine not exceeding $2,000 or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment. (Pen. Code §§ 242 and 243, subd. (a).) Existing law states that every person confined in a local detention facility who commits gassing of a peace officer or employee of the prison or facility is guilty of aggravated battery, punishable by imprisonment in a county jail for up to six month or by imprisonment in the state prison for two, three, or four years. (Pen. Code § 243.9.) Existing law defines "gassing" as intentionally placing or throwing, or causing to be placed or thrown, upon another person any human excrement, bodily fluids or bodily substances or any mixture containing such fluids or substances that result in actual contact with the person's skin or membranes. (Pen. Code §§ 243.9, subd. (b) and 4501.1, subd. (b).) Existing law requires a person in charge of the local detention facility to use every available means to immediately investigate all reported or suspected batteries by gassing, including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. If there is probable cause to believe that the inmate has committed battery by gassing, the chief medical officer of the local detention facility, or his or her designee, may, when he or she deems it medically necessary to protect the health of an officer or employee who may have been subject to a violation of this section, order the inmate to receive an examination or test for hepatitis or tuberculosis or both hepatitis and tuberculosis on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. These decisions shall be (More) AB 1340 (Achadjian) PageF consistent with an occupational exposure as defined by the Center for Disease Control and Prevention. The results of any examination or test shall be provided to the officer or employee who has been subject to a reported or suspected violation of this section. (Pen. Code § 243.9, subd. (c).) Existing law requires a person in charge of the local detention facility to refer all reports for which there is probable cause to believe that the inmate has committed battery by gassing of a facility employee to the local district attorney. (Pen. Code § 243.9, subd. (d).) This bill establishes enhanced treatment programs (ETP), commencing July 1, 2015, and subject to available funding, under the jurisdiction of DSH to provide 24-hour inpatient care for mentally disordered, incompetent, or other patients who have been committed to DSH and have been assessed to be at high risk for most dangerous behavior, as defined, and cannot be effectively treated within an acute psychiatric hospital, a skilled nursing facility, or an intermediate care facility, including medical, nursing, rehabilitative, pharmacy, and dietary service. This bill specifies that it is not the Legislature's intent for ETPs to supplant the aforementioned facilities. This bill requires an ETP to meet licensure requirements for acute psychiatric hospitals commencing July 1, 2015, and until January 1, 2018. This bill requires the Department of Public Health (DPH) to license ETPs, on and after January 1, 2018, to provide treatment for patients at high risk for the most dangerous behavior as part of a continuum of care based on the individual patient's treatment needs. This bill requires DSH and DPH to jointly develop regulations governing ETPs. This bill requires ETPs to include the following: Maintain staff-to-patient ratios of one-to-five; Limit each room to one patient; Require each patient room to allow visual access by staff 24 hours a day; (More) AB 1340 (Achadjian) PageG Require each patient room to have a bathroom; Allow each patient room door to lock externally only when clinically indicated and determined to be the least restrictive environment for provision of the patient's care and treatment; specifies that a locked door is not considered seclusion; and Provide emergency egress for patients. This bill requires ETPs to adopt and implement policies and procedures consistent with DSH regulations that provide: Policies and procedures for admission into an ETP; Clinical assessment and review focused on behavior, history, dangerousness, and clinical need for patients to receive treatment in an ETP; A process for identifying which ETP along a continuum of care best meets the patient's needs; and Treatment plans with regular clinical review and reevaluation of placement back into a standard treatment environment, including discharge and reintegration planning. This bill requires that ETP patients are guaranteed the same rights as patients not in an ETP, with the exception of placement in a room with a door that may be locked externally. This bill requires DSH, commencing January 1, 2018, and until January 1, 2026, to monitor ETPs, evaluate outcomes, and report the findings and recommendations to the Legislature every two years. This bill allows a state hospital psychiatrist or psychologist to refer a patient to an ETP for temporary placement and risk assessment upon determining the patient may be at high risk for most dangerous behavior and when treatment is not possible in a standard treatment environment. This bill allows the referral to occur at any time after the patient is admitted to a DSH facility with notice to the patient's advocate at the time of referral. (More) AB 1340 (Achadjian) PageH This bill requires, within three business days of placement in an ETP, a dedicated forensic evaluator, not on the patient's treatment team, to complete an initial evaluation of the patient that includes an interview of the patient's treatment team, an analysis of diagnosis, past violence, current level of risk, and the need for enhanced treatment. This bill requires, within seven business days of placement in an ETP and with 72-hours' notice to the patient and patient's advocate, a forensic needs assessment panel (FNAP) to conduct a placement evaluation meeting with the referring psychiatrist or psychologist, the patient and patient's advocate, and the dedicated forensic evaluator who performed the initial evaluation. This bill requires a determination to be made as to whether the patient clinically requires ETP treatment. This bill allows the FNAP to delay its decision for an additional seven business days if a patient shows improvement during placement in the ETP. This bill specifies that the threshold standard treatment in an ETP is met if a psychiatrist or psychologist who uses standard forensic methodologies for clinically assessing violence risk, including an analysis of past violence and use of valid and reliable violence risk assessment testing, determines that a patient meets the definition of a patient at risk for most dangerous behavior and ETP treatment can meet the identified needs of the patient. This bill requires the FNAP to review all material presented at the placement evaluation meeting and to certify the patient for 90 days of ETP treatment or direct the patient be returned to a standard treatment environment. This bill requires a patient's transfer, if the ETP treatment will be provided at a facility other than the current hospital, to take place as soon as transportation can be reasonably arranged and no later than 30 days after the decision is made. Requires the determination to be in writing and provided to the patient and patient's advocate as soon as possible but no later than three business days after the decision. (More) AB 1340 (Achadjian) PageI This bill requires upon admission to an ETP a forensic needs assessment team (FNAT) psychologist, who is not on the patient's treatment team, to perform an in-depth violence risk assessment and make a treatment plan based on the assessment within 14 business days of placement in the ETP. Requires formal treatment plan reviews to occur on a monthly basis and to include a full report on the patient's behavior while in the ETP. This bill requires an ETP patient to receive treatment from a team consisting of a psychologist, psychiatrist, nurse, psychiatric technician, clinical social worker, rehabilitation therapist, and any other staff necessary, and to meet no less than once a week to assess the patient's response to ETP treatment. This bill requires the FNAP to convene a treatment placement meeting prior to the expiration of the 90-day treatment and with 72-hours' notice to the patient and patient's advocate with a psychologist from the treatment team, a patient advocate, the patient, and the FNAT psychologist who performed the in-depth violence risk assessment, to determine if the patient may return to a standard treatment environment or if the patient clinically requires continued ETP treatment. This bill requires the patient to be certified for one year of ETP placement if the FNAP determines the patient clinically requires continued ETP treatment. This bill requires the determination to be in writing and provided to the patient and the patient's advocate within 24 hours of the meeting. This bill requires the FNAP to review the patient's treatment summary every 90 days to determine if the patient no longer clinically requires ETP treatment. Requires this determination to be in writing and provided to the patient and patient's advocate within three business days of the meeting. This bill requires the FNAP to identify appropriate placement within a standard environment in a state hospital and for the patient to be transferred within 30 days if the FNAP determines that the patient is ready to be treated in a standard treatment environment. (More) AB 1340 (Achadjian) PageJ This bill requires the FNAP, prior to the expiration of the one-year certification of ETP placement and with 72-hours' notice to the patient and patient's advocate, to convene a treatment placement meeting with the treatment team, the patient advocate, the patient, and the FNAT psychologist who performed the in-depth violence risk assessment. This bill requires the FNAP to determine if a patient clinically requires continued ETP treatment. This bill requires a patient to be certified for ETP treatment for an additional year if the FNAP determines the patient clinically requires continued ETP placement. This bill requires the determination to be in writing and provided to the patient and patient's advocate within three business days of the meeting. This bill requires a recommendation be made to the FNAP or FNAT to transfer a patient out of an ETP if at any point during ETP placement a patient's treatment team determines the patient no longer clinically requires ETP treatment. This bill allows the process of assessment, determination, and documentation outlined above to continue until the patient no longer clinically requires ETP treatment or until the patient is discharged from the state hospital. This bill defines "FNAP" as a panel that consists of a psychiatrist, a psychologist, and the medical director of the hospital or facility, none of whom are involved in the patient's treatment or diagnosis at the time of the hearing or placement meetings. This bill defines "FNAT" as a panel of psychologists with expertise in forensic assessment or violence risk assessment, each of whom are assigned an ETP case or group of cases. This bill defines "patient at high risk of most dangerous behavior" as an individual who has a history of physical violence and currently poses a demonstrated danger of inflicting substantial physical harm upon others in an inpatient setting, as determined by the in-depth violence risk assessment. (More) AB 1340 (Achadjian) PageK 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 that 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 to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. 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 requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted 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 opposed the state's motion, arguing 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, (More) AB 1340 (Achadjian) PageL 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and 137.5% of design bed capacity by February 28, 2016. If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. In a status report to the Court dated May 15, 2014, the state reported that as of May 14, 2014, 116,428 inmates were housed in the State's 34 adult institutions, which amounts to 140.8% of design bed capacity, and 8,650 inmates were housed in out-of-state facilities. (More) AB 1340 (Achadjian) PageM The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly 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: According to data from DSH, violent acts by state hospital patients have increased substantially in recent years, including the tragic homicide of Napa psychiatric technician Donna Gross in 2010, as well as patient murders at Patton in 2013 and Atascadero in 2014. In 2012, there were nearly 7,000 combined incidents of violence against both staff and patients. Clearly, there is much work to be done to ensure that state hospitals are providing a safe and secure (More) AB 1340 (Achadjian) PageN environment for both staff and patients alike. This bill expands the range of available clinical treatment by establishing ETPs for patients determined to be at the highest risk for violence. The goal of ETPs is to deliver concentrated, evidence-based clinical therapy and treatment in a secure environment designed to improve these patients' conditions so that they may be safely returned to the standard treatment environment. Providing these individuals with enhanced treatment apart from the general population will protect state hospital staff and patients, decrease the level of violence, and provide more effective treatment to those patients with the most aggressive behavior. 2. Basic Constitutional Issues in Mental Health Commitments Commitment to a mental hospital involves a "massive curtailment of liberty." (Humphrey v. Cady (1972) 405 U.S. 504, 509.) Such commitment also create severe social stigma. As such, due process is required and proof must be by clear and convincing evidence. (Addington v. Texas (1978) 441 U.S. 418, 425-433.) However, "consistent with 'substantive' due process ? the state may involuntarily commit persons who, as the result of mental impairment, are unable to care for themselves or are dangerous to others." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1151, citing Addington and other cases.) Nevertheless, civilly committed persons are not subject to punishment. (Kansas v. Hendricks (521 U.S. 346, 361-371.) While a commitment statute is not invalidly punitive if treatment for a person's is unavailable, treatment shall be provided or attempted. (Kansas v. Hendricks (1997) 521 U.S. 346, 361-369; Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1164-1178.) Procedural due process must generally be given to civilly committed persons for changes in commitment status, confinement or treatment. Due process typically involves hearings and opportunities to object to proposed changes. (Vitek v. Jones (1980) 445 U.S. 480, 492-493 - commitment to mental hospital from prison; Sell v. U.S. (2003) 539 U.S. 166 - involuntary (More) AB 1340 (Achadjian) PageO administration of anti-psychotic drugs to incompetent defendant. ) 3. Background on Change in DSH Population to Nearly Only Forensic Patients - Those Committed Through or From the Criminal Justice System According to DSH, the state hospital patient population has shifted over the past 20 years, from a 20 percent forensic population in 1994 to the current 96 percent. Forensic patients are committed for a variety of reasons, including IST, NGI, mentally disordered offenders (MDO), and SVP. There are 4,967 patients at Atascadero, Coalinga, Metropolitan, Napa, and Patton state hospitals comprising 1,350 NGI; 1,283 IST; 1,154 MDO; 897 SVP; 258 mentally ill California Department of Corrections and Rehabilitation commitments; and 25 mentally disordered sex offenders. DSH states that despite the significant change, there is no current legal, regulatory, or physical infrastructure in place for state hospitals to effectively and safely treat patients who have demonstrated severe psychiatric instability or extremely aggressive behavior. 4. Violence in DSH Facilities Recent DSH Statistics and Cal/OSHA Matters According to DSH, in 2013, there were a total of 3,344 patient-on-patient assaults and 2,586 patient-on-staff assaults at state hospitals. Of the total patient population, 62 percent are non-violent, 36 percent committed 10 or fewer violent acts, and 2 percent committed 10 or more violent acts. Of all the violent acts committed, 65 percent are committed by those with 10 or fewer violent acts, and 35 percent are committed by those with 10 or more violent acts. A small subset of the population, 116 people, commits the majority of aggressive acts. Assaults for the previous years are as follows: 3,803 patient-on-patient and 3,026 patient-on-staff in 2012; 4,022 patient-on-patient and 2,814 patient-on-staff in 2011; and 4,627 patient-on-patient and 2,703 patient-on-staff in 2010. (More) AB 1340 (Achadjian) PageP The Division of Occupational Safety and Health, known as Cal/OSHA, within the California Department of Industrial Relations, has had significant and ongoing involvement with DSH as a result of insufficient protections for staff. According to a Los Angeles Times article from March 2, 2012, Cal/OSHA has issued nearly $100,000 in fines against Patton and Atascadero, alleging that they have failed to protect staff and have deficient alarm systems. These citations are similar to citations levied in 2011 against Napa and Metropolitan. Cal/OSHA found an average of 20 patient-caused staff injuries per month at Patton from 2006 through 2011 and eight per month at Atascadero from 2007 through 2011, including severe head trauma, fractures, contusions, lacerations, and bites. DSH states they have been working closely with Cal/OSHA to resolve the issues and take all necessary corrective measures to protect staff at all of the state hospital facilities. 2011 Reports on Violence at Atascadero and Napa State Hospitals The prevalence of violence in the state hospital system came to wide public attention in 2011. NPR reported the data in the following tables: NPR Report<2> on Aggressive Incidents per 100 Patients at Atascadero (US DOJ Stats.) ----------------------------------------------------------------- |1990 |44.7 | |--------------------------------+--------------------------------| |1995 |45-7 | |--------------------------------+--------------------------------| |2000 |50.7 | --------------------------- <2> Ina Jaffe NPR; http://www.npr.org/2011/04/07/134961467/at-california-mental-hosp itals-fear-is-part-of-the-job http://www.npr.org/2011/04/08/134961895/violence-surges-at-hospit al-for-mentally-ill-criminals. (More) AB 1340 (Achadjian) PageQ |--------------------------------+--------------------------------| |2007 |96.7 | |--------------------------------+--------------------------------| |2008 |116.2 | ----------------------------------------------------------------- Physical Assaults at Napa - Patient Assaults on other Patients (DOJ Stats.) ----------------------------------------------------------------- |Sept. 2008 - Feb. 2009 |220 | |--------------------------------+--------------------------------| |March 2009 - Aug. 2009 |300 | |--------------------------------+--------------------------------| |Sept. 2009 - Feb. 2010 |486 | | | | ----------------------------------------------------------------- Physical Assaults at Napa - Patient Assaults on Staff (DOJ Stats.) ----------------------------------------------------------------- |Sept. 2008 - Feb. 2009 |75 | |--------------------------------+--------------------------------| |March 2009 - Aug. 2009 |165 | |--------------------------------+--------------------------------| |Sept. 2009 - Feb. 2010 |287 | | | | ----------------------------------------------------------------- 5. DSH Enhanced Treatment Unit (ETU) Pilot Project DSH issued a report in May 2013, Enhanced Treatment Unit: Annual Outcome Report, on the pilot project at Atascadero, which has operated since December 2011, but does not allow for locked doors. The goal of the ETU is to decrease psychiatric symptoms of some of the most violent patients in order to enable DSH to simultaneously assist the patients in their recovery, thereby (More) AB 1340 (Achadjian) PageR increasing the safety of the facility. Patients must meet certain criteria, based on the patient's mental illness and psychiatric symptoms, before being admitted to the ETU. DSH reviews patient referrals to determine if patients meet the following entrance criteria: The patient engages in pathology-driven behaviors; The patient engages in recurrent aggressive behaviors that have been unresponsive to mainstream therapeutic interventions; or, The patient commits a serious assaultive act that results in serious injury. The report concludes that the ETU has been successful in decreasing aggressive incidents and that the program as a whole is likely effective. Some of the contributing factors cited include added staff with expertise in treating difficult patients and decreased staff-to-patient ratios; added presence of the Department of Police Services (Atascadero state hospital law enforcement); and the "calm milieu" of the ETU, which is attributed to the added staff with greater expertise in treating difficult and violent patients, i.e., the staff reacts to an incident in a manner that does not escalate the situation that would result in a violent act. While successful, DSH states that the Atascadero ETU accepts only those with Axis 1 diagnoses, such as schizophrenia, major depression, bipolar, and schizoaffective disorder. The Atascadero ETU intentionally avoids patients with Axis 2 diagnoses, which are various types of personality disorders that are often present in the patients involved in predatory violence. Patients with Axis 2 diagnoses have been involved in three recent murders of staff and patients, and are the patients the ETPs will treat. 6. Critical Report on Treatment of Prison Inmates in State Hospitals According to an article published in the Los Angeles Times on May 30, 2014, "Report faults prison care of state's mentally ill inmates," a report filed in U.S. District Court by special master Matthew Lopes indicates that state hospitals returned (More) AB 1340 (Achadjian) PageS some patients to prison too soon, drugged instead of counseled patients, and only rarely gave one-on-one therapy. Atascadero was noted to have discharged prisoners based on length of stay rather than on their mental conditions and immediately dropped staffing levels and access to group therapy once federal oversight of the hospital ended. The report further indicates that psychiatrists feared retaliation from administrators if they did not sign discharge papers even though they may have felt that prisoners required more treatment. The report cites the use of seclusion and restraints to curb violence, indicating that patients were strapped to their beds 76 times during an eight-month period in 2013, usually for less than 24 hours but in some cases for nearly four days. 7. CRIPA (Constitutional Rights of Institutionalized Persons Act) Litigation Settlement in Federal Court between DSH and the United States Attorney CRIPA Generally Federal law includes a comprehensive statute setting out standards for treatment of patients held in state institutions for the mentally ill. (42 U.S.C. § 1997 et seq.) The Website of the United States Attorney explains the purpose and reach of the law: [CRIPA] allows the Attorney General [of the United States] to review conditions and practices within institutions run by, or for, state and local governments. Under CRIPA, we have no authority to assist with individual claims. We also cannot correct a problem in a federal facility or actions by federal officials. We do not assist in criminal cases. After a CRIPA investigation, we can act if we identify a systemic pattern or practice that causes harm. (More) AB 1340 (Achadjian) PageT Evidence of harm to one individual only - even if that harm is serious - is not enough. If we find systemic problems, we may send the state or local government a letter that describes the problems and what says what steps they must take to fix them. We will try to reach an agreement with the state or local government on how to fix the problems. If we cannot agree, then the Attorney General may file a lawsuit in federal court.<3> 2006 DSH CRIPA Consent Judgment In 2006, DSH entered into a consent judgment in federal court concerning CRIPA violations in DSH facilities. The judgment was implemented through 2011. The DSH Website explains the resolution by settlement in 2006 of a case pursued by US DOJ against DSH for numerous violations of CRIPA: On May 2, 2006, the United States Department of Justice (USDOJ) and the State of California reached a settlement concerning civil rights violations at four California State Hospitals: Metropolitan State Hospital, Napa State Hospital, Patton State Hospital; and Atascadero State Hospital. The extensive reforms required by the five-year Consent Judgment will ensure that individuals in the hospitals are adequately protected from harm and provided adequate services to support their recovery and mental health. The USDOJ conducted its investigation pursuant to the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA). This statute allows the federal government to identify and root out systemic irregularities such as those identified in this case, rather than focus on individual civil rights violations. The State is now addressing and correcting the agreed upon violations ---------------------- <3> http://www.justice.gov/crt/about/spl/cripastat.php (More) AB 1340 (Achadjian) PageU identified by the USDOJ.<4> Specific 2006 US DOJ Allegations of CRIPA Deficiencies at Patton State Hospital. In May of 2006, US DOJ issued its letter to the governor stating the findings of a December 2005 evaluation of Patton State Hospital. The Patton summary provides an example of the issues in the CRIPA litigation overall. The University of Michigan Civil Rights Litigation Clearinghouse summarized the letter. Concerns relevant to this bill are highlighted: On May 2, 2006, the U.S. Department of Justice's Civil Rights Division ("DOJ") sent its "findings letter" to California's governor, advising him of the results of the December 2005, DOJ investigation of conditions and practices at the Patton State Hospital ("PSH"), a facility housing mentally ill persons. The investigation occurred under the authority of the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. DOJ and expert consultants visited the facility, reviewed a wide array of documents there, and conducted interviews with personnel and residents. The letter commended PSH staff for providing a high level of cooperation during the investigation, as well as the dedication many showed for patient well-being. Nevertheless, the investigation found "significant and wide-ranging" deficiencies in patient care at PSH. DOJ concluded that deficiencies in conditions of patient care and treatment at PSH existed as to eight topic areas, including (1) psychiatry; (2) pharmaceutical services; (3) psychology; (4) medical care, including general medical services, medical and dental record-keeping, physical, speech, and ---------------------- <4> http://www.dsh.ca.gov/Publications/ReportsAndData/CRIPAReports. (More) AB 1340 (Achadjian) PageV occupational therapy, and dietary care; (5) nursing services; (6) placement in the most integrated setting; (7) protection from harm; and (8) use of restraints, seclusion, and "as-needed" medications (i.e., pro re nata, or "PRN," psychiatric medications). The letter provided details of deficiencies for all eight of these categories. Moreover, the findings letter stated that these shortcomings were materially similar to those outlined in the findings letters to the state in 2003 and 2004 concerning a similar state mental health hospital.<5> 8. 2011 Arguments by DMH Staff that the CRIPA Plan Made DMH Facilities More Dangerous As noted above, violence in DSH facilities received wide attention in 2011. That was the year the CRIPA plan or supervision ended. At that time media reports noted numerous complaints from staff members that the CRIPA plan has increased violence in the hospitals. Stories about the treatment plan and hospital violence, particularly at Atascadero and Napa, were prominently featured on NPR's Morning Edition in the week of April 3rd, 2011. Staff members have objected to increased documentation requirements that decrease time for treatment and observation of patients. There have been numerous complaints that the plan is too deferential to patients and does not recognize that DMH forensic patients may be particularly dangerous. Some staff have complained that patients do not face negative consequences for violent behavior. <6> Regardless of any possible deficiencies in the CRIPA plan, reports of the violence in DMH hospitals demonstrates that DMH --------------------------- <5> http://www.clearinghouse.net/detail.php?id=9650. <6> http://www.npr.org/2011/04/08/134961895/violence-surges-at-hospit al-for-mentally-ill-criminals. (More) AB 1340 (Achadjian) PageW facilities and procedures are inherently insecure and dangerous. For example, Napa is an open campus of 138 acres with isolated areas. Donna Gross, the psych tech who was murdered by patient Jess Massey in October 2010, came upon Massey along a path outside in the campus. Massey, despite his serious criminal history, could walk unsupervised on hospital grounds. Reports state that Massey dragged Gross over a wall where they could not be seen. Because Gross was outside, her personal alarm did not work. 9. Concerns of and Amendments Requested by Disability Rights California Disability Rights of California (DRC) has reviewed the bill as it has been amended throughout the process. DRC is concerned that the ETP largely relies on isolation of patients, which is likely to worsen the condition of patients. Because of the particularly restrictive nature of the ETP, the law must require treatment plans to be carefully developed and reviewed monthly. Treatment plans and goals should be objectively measureable to provide for a clear path to discharge to standard treatment. A patient should not be admitted to an ETP unless there is no less restrictive option and the ETP can meet the patient's treatment needs. DRC also argues that the process for determining whether placement in an ETP lacks objective standards and could produce arbitrary decisions. The standards for admission to an ETP are vague and subject to arbitrary implementation by DSH.<7> Specific standards for placement of a patient into an ETP should be set out in statute, not left to DSH regulations or practice. Further, the process appears to deny constitutionally required due process. To address due process concerns, patients subject to ETP admission should be afforded a full-time patient's rights advocate and the patient granted a hearing before an --------------------------- <7> The Senate Health Committee analysis opponents' specific objections to standards for actions in an ETP, such as "when clinically indicated" (in relation to when a patient's door may be locked) and "standard forensic methodologies" (for determining if a patient requires ETP treatment). (More) AB 1340 (Achadjian) PageX administrative law judge before placement. DRC believes that adequate oversight of the ETP is essential. The oversight must be reflected in reports issued according to set timelines. DRC believes that ETP should be a pilot project with a sunset in three years. A pilot would allow DSH, the Legislature and interested and affected parties to determine the value of the program before it is implemented more widely. Changes or entirely new policies could be implemented to improve the efficacy of special treatment protocols or programs, while better insuring due process. (More) SHOULD THE BILL INCLUDE ADDITIONAL DUE PROCESS PROTECTIONS, INCLUDING THE RIGHT TO APPEAL AN ETP PLACEMENT AND A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE BEFORE A PATIENT IS COMMITTED OR ADMITTED TO AN ETP FOR ONE YEAR? 10. Concerns that Bill Authorizes Patient Seclusion The Senate Health Committee analysis described concerns that the ETP program may constitute seclusion of patients: Can ETPs be considered seclusion? Though this bill indicates that locked doors will not be considered seclusion, a 1992 report, On the Seclusion of Psychiatric Patients (Brown and Tooke), found instances of seclusion to manage workload when too many agitated patients were admitted and during times when staffing was low on evenings, nights, weekends, or at changes of shifts, suggesting that ward conditions rather than patient condition governs seclusion. A 2004 study from the University of Ottawa, The Mentally Ill and Social Exclusion: A Critical Examination of the Use of Seclusion from the Patient's Perspective, cited patients' wide array of negative emotions associated with their seclusion, such as fear, anger, sadness, shame, and feeling abandoned. Though this bill specifies that, except for externally locking doors, ETP patients will be afforded the same rights as general population patients, the author may wish to clarify how an ETP will differ from seclusion. 11. Prior Legislation AB 2399 (Allen), Chapter 751, Statutes of 2012, required each of the five state hospitals to update its injury and illness prevention plan (IIPP) at least once a year, establish an IIPP committee to provide recommendations for updates to the plan, and develop an incident reporting procedure for assaults on employees. (More) AB 1340 (Achadjian) PageZ SB 60 (Evans) of 2011 would have required the former Department of Mental Health (now DSH) to conduct a security and violence risk assessment, as specified, of each patient upon admission to a state hospital. SB 60 was held in the Assembly Appropriations Committee. SB 391 (Solis), Chapter 294, Statutes of 1997, provided for patient risk assessments for inmates committed to Napa or Metropolitan for certain Penal Code violations and requires patients subject to assessments who are determined to be a high security risk to be treated in the most secure state hospital facilities. 12. Recent Budget Actions AB 1468 (Committee on Budget), the public safety trailer bill that passed on June 15, 2014, contains a number of provisions concerning safety in state hospitals, including the development of training protocols, policies and procedures for peace officers in state hospitals, and a requirement that the Health and Human Services Agency develop recommendations to improve the quality and stability of law enforcement and investigative functions in state hospitals, as specified. **************