BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1340 (Achadjian) 0
As Amended June 16, 2014
Hearing date: June 24, 2014
Welfare and Institutions Code
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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
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<1> The bill as it passed the Assembly was more limited in scope
than the current version.
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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.)
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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
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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).)
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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
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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;
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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.
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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.
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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.
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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.
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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,
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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.
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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
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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
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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.
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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.
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|--------------------------------+--------------------------------|
|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
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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
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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.
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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
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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.
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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.
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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).
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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.
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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.
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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.
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