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
          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.



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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.


                                   **************