BILL NUMBER: AB 2543 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 23, 2014
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Levine
FEBRUARY 21, 2014
An act to amend Sections 1026 and 1370
1027 and 1369 of the Penal Code, and to add Section 7233 to the
Welfare and Institutions Code, relating to state hospitals.
LEGISLATIVE COUNSEL'S DIGEST
AB 2543, as amended, Levine. State hospitals: placement
evaluations.
Existing law establishes the State Department of State Hospitals
for the administration of state hospitals and provides for the
involuntary confinement of certain individuals in those state
hospitals, including defendants who have been found incompetent to
stand trial and defendants found to be guilty of a crime, or who have
plead not guilty by reason of insanity, and found to be insane at
the time he or she committed the crime. Existing law requires a
court, when a defendant pleads not guilty by reason of insanity or if
there is a question as to the defendant's mental competence, to
appoint a specified number of psychiatrists or psychologists to
examine the defendant.
Existing law requires a court, except as specified, to direct that
a defendant described above be confined in a state hospital or any
other appropriate public or private treatment facility, or placed on
outpatient status. Existing law requires the court, prior to making
the order directing placement, to order the community program
director, as defined, to evaluate the defendant and to submit a
written recommendation as to whether the defendant should be placed
on outpatient status or confined in a state hospital or other
treatment facility.
This bill would require the State Department of State Hospitals to
establish, within the department, a pool of psychiatrists and
psychologists with forensic skills and would require evaluation
panels to be created from the pool of psychiatrists and
psychologists, as specified. The bill would require the court to
order an evaluation panel to evaluate the a
defendant and to submit a written recommendation
relating to the defendant's placement who pleads not
guilty by reason of insanity or who may be mentally incompetent
. The bill would make conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1027 of the Penal
Code is amended to read:
1027. (a) When a defendant pleads not guilty by reason of
insanity the court shall select and appoint two, and may
select and appoint three, psychiatrists, or licensed psychologists
who have a doctoral degree in psychology and at least five years of
postgraduate experience in the diagnosis and treatment of emotional
and mental disorders appoint an evaluation panel that
has been convened pursuant to Section 7233 of the Welfare and
Institutions Code , to examine the defendant and investigate
his or her mental status. It is the duty of the
psychiatrists or psychologists selected and appointed
evaluation panel to make the examination and investigation, and
to testify, whenever summoned, in any proceeding in which the sanity
of the defendant is in question. The psychiatrists or
psychologists appointed by the court members of the
evaluation panel shall be allowed, in addition to their actual
traveling expenses, those fees that in the discretion of the court
seem just and reasonable, having regard to the services rendered by
the witnesses. The fees allowed shall be paid by the county where the
indictment was found or in which the defendant was held for trial
to the State Department of State Hospitals .
(b) Any report on the examination and investigation made pursuant
to subdivision (a) shall include, but not be limited to, the
psychological history of the defendant, the facts surrounding the
commission of the acts forming the basis for the present charge used
by the psychiatrist or psychologist in making his or her
evaluation panel in making the panel's
examination of the defendant, the present psychological or
psychiatric symptoms of the defendant, if any, the substance abuse
history of the defendant, the substance use history of the defendant
on the day of the offense, a review of the police report for the
offense, and any other credible and relevant material reasonably
necessary to describe the facts of the offense.
(c) This section does not presume that a psychiatrist or
psychologist an evaluation panel can determine
whether a defendant was sane or insane at the time of the alleged
offense. This section does not limit a court's discretion to admit or
exclude, pursuant to the Evidence Code, psychiatric or psychological
evidence about the defendant's state of mind or mental or emotional
condition at the time of the alleged offense.
(d) Nothing contained in this section shall be deemed or construed
to prevent any party to any criminal action from producing any other
expert evidence with respect to the mental status of the defendant.
If expert witnesses are called by the district attorney in the
action, they shall only be entitled to those witness fees as may be
allowed by the court.
(e) Any psychiatrist or psychologist The
members o f an evaluation panel appointed
by the court may be called by either party to the action or by the
court, and shall be subject to all legal objections as to competency
and bias and as to qualifications as an expert. When called by the
court or by either party to the action, the court may examine the
psychiatrist or psychologist members of the
evaluation panel , as deemed necessary, but either party shall
have the same right to object to the questions asked by the court and
the evidence adduced as though the psychiatrist or
psychologist were a witness members of the panel were
witnesses for the adverse party. When the psychiatrist
or psychologist a member of the panel is called
and examined by the court, the parties may cross-examine him or her
in the order directed by the court. When called by either party to
the action, the adverse party may examine him or her the same as in
the case of any other witness called by the party.
SEC. 2. Section 1369 of the Penal Code
is amended to read:
1369. A trial by court or jury of the question of mental
competence shall proceed in the following order:
(a) The court shall appoint a psychiatrist or licensed
psychologist an evaluation panel that has been
convened pursuant to Section 7233 of the Welfare and Institutions
Code , and any other expert with forensic experience
the court may deem appropriate, to examine the defendant. In any case
where the defendant or the defendant's counsel informs the court
that the defendant is not seeking a finding of mental incompetence,
the court shall appoint two psychiatrists, licensed
psychologists, or a combination thereof. One of the psychiatrists or
licensed psychologists may be named by the defense and one may be
named by the prosecution the defense and the
prosecution shall each confer with the State Department of State
Hospitals regarding the selection of the panelists . The
examining psychiatrists or licensed psychologists
panelists shall evaluate the nature of the defendant's
mental disorder, if any, the defendant's ability or inability to
understand the nature of the criminal proceedings or assist counsel
in the conduct of a defense in a rational manner as a result of a
mental disorder and, if within the scope of their licenses and
appropriate to their opinions, whether or not treatment with
antipsychotic medication is medically appropriate for the defendant
and whether antipsychotic medication is likely to restore the
defendant to mental competence. If an examining psychologist
panelist is of the opinion that antipsychotic
medication may be medically appropriate for the defendant and that
the defendant should be evaluated by a psychiatrist to determine if
antipsychotic medication is medically appropriate, the
psychologist panelist shall inform the court of
this opinion and his or her recommendation as to whether a
psychiatrist should examine the defendant. The examining
psychiatrists or licensed psychologists panelists
shall also address the issues of whether the defendant has
capacity to make decisions regarding antipsychotic medication and
whether the defendant is a danger to self or others. If the defendant
is examined by a psychiatrist and the psychiatrist forms an opinion
as to whether or not treatment with antipsychotic medication is
medically appropriate, the psychiatrist shall inform the court of his
or her opinions as to the likely or potential side effects of the
medication, the expected efficacy of the medication, possible
alternative treatments, and whether it is medically appropriate to
administer antipsychotic medication in the county jail. If it is
suspected the defendant is developmentally disabled, the court shall
appoint the director of the regional center for the developmentally
disabled established under Division 4.5 (commencing with Section
4500) of the Welfare and Institutions Code, or the designee of the
director, to examine the defendant. The court may order the
developmentally disabled defendant to be confined for examination in
a residential facility or state hospital.
The regional center director shall recommend to the court a
suitable residential facility or state hospital. Prior to issuing an
order pursuant to this section, the court shall consider the
recommendation of the regional center director. While the person is
confined pursuant to order of the court under this section, he or she
shall be provided with necessary care and treatment.
(b) (1) The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence.
(2) If the defense declines to offer any evidence in support of
the allegation of mental incompetence, the prosecution may do so.
(c) The prosecution shall present its case regarding the issue of
the defendant's present mental competence.
(d) Each party may offer rebutting testimony, unless the court,
for good reason in furtherance of justice, also permits other
evidence in support of the original contention.
(e) When the evidence is concluded, unless the case is submitted
without final argument, the prosecution shall make its final argument
and the defense shall conclude with its final argument to the court
or jury.
(f) In a jury trial, the court shall charge the jury, instructing
them on all matters of law necessary for the rendering of a verdict.
It shall be presumed that the defendant is mentally competent unless
it is proved by a preponderance of the evidence that the defendant is
mentally incompetent. The verdict of the jury shall be unanimous.
SEC. 3. Section 7233 is added to the
Welfare and Institutions Code , to read:
7233. (a) The State Department of State Hospitals shall establish
a pool of psychiatrists and psychologists with forensic skills who
are employees of the department from which evaluation panels shall be
created pursuant to subdivision (b).
(b) The department shall create evaluation panels with each panel
consisting of three to five forensic psychiatrists or psychologists
from the pool created in subdivision (a).
SECTION 1. Section 1026 of the Penal Code is
amended to read:
1026. (a) When a defendant pleads not guilty by reason of
insanity, and also joins with it another plea or pleas, the defendant
shall first be tried as if only that other plea or pleas had been
entered, and in that trial the defendant shall be conclusively
presumed to have been sane at the time the offense is alleged to have
been committed. If the jury finds the defendant guilty, or if the
defendant pleads only not guilty by reason of insanity, then the
question whether the defendant was sane or insane at the time the
offense was committed shall be promptly tried, either before the same
jury or before a new jury in the discretion of the court. In that
trial, the jury shall return a verdict either that the defendant was
sane at the time the offense was committed or was insane at the time
the offense was committed. If the verdict or finding is that the
defendant was sane at the time the offense was committed, the court
shall sentence the defendant as provided by law. If the verdict or
finding is that the defendant was insane at the time the offense was
committed, the court, unless it appears to the court that the sanity
of the defendant has been recovered fully, shall direct that the
defendant be confined in a state hospital for the care and treatment
of the mentally disordered or any other appropriate public or private
treatment facility approved by an evaluation panel created pursuant
to Section 7233 of the Welfare and Institutions Code, or the court
may order the defendant placed on outpatient status pursuant to Title
15 (commencing with Section 1600) of Part 2.
(b) Prior to making the order directing that the defendant be
confined in a state hospital or other treatment facility or placed on
outpatient status, the court shall order the evaluation panel to
evaluate the defendant and to submit to the court within 15 judicial
days of the order a written recommendation as to whether the
defendant should be placed on outpatient status or confined in a
state hospital or other treatment facility. A person shall not be
admitted to a state hospital or other treatment facility or placed on
outpatient status under this section without having been evaluated
by the evaluation panel. If, however, it appears to the court that
the sanity of the defendant has been recovered fully, the defendant
shall be remanded to the custody of the sheriff until the issue of
sanity shall have been finally determined in the manner prescribed by
law. A defendant committed to a state hospital or other treatment
facility or placed on outpatient status pursuant to Title 15
(commencing with Section 1600) of Part 2 shall not be released from
confinement, parole, or outpatient status unless and until the court
which committed the person shall, after notice and hearing, find and
determine that the person's sanity has been restored. This section
shall not prevent the transfer of the patient from one state hospital
to any other state hospital by proper authority. This section shall
not prevent the transfer of the patient to a hospital in another
state in the manner provided in Section 4119 of the Welfare and
Institutions Code.
(c) If the defendant is committed or transferred to a state
hospital pursuant to this section, the court may, upon receiving the
written recommendation of the medical director of the state hospital
and the evaluation panel that the defendant be transferred to a
public or private treatment facility approved by the evaluation
panel, order the defendant transferred to that facility. If the
defendant is committed or transferred to a public or private
treatment facility approved by the evaluation panel, the court may,
upon receiving the written recommendation of the evaluation panel,
order the defendant transferred to a state hospital or to another
public or private treatment facility approved by the evaluation
panel. When either the defendant or the prosecuting attorney chooses
to contest either kind of order of transfer, a petition may be filed
in the court requesting a hearing which shall be held if the court
determines that sufficient grounds exist. At that hearing, the
prosecuting attorney or the defendant may present evidence bearing on
the order of transfer. The court shall use the same procedures and
standards of proof as used in conducting probation revocation
hearings pursuant to Section 1203.2.
(d) Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the evaluation panel.
(e) When the court, after considering the placement recommendation
of the evaluation panel required in subdivision (b), orders that the
defendant be confined in a state hospital or other public or private
treatment facility, the court shall provide copies of the following
documents which shall be taken with the defendant to the state
hospital or other treatment facility where the defendant is to be
confined:
(1) The commitment order, including a specification of the
charges.
(2) A computation or statement setting forth the maximum term of
commitment in accordance with Section 1026.5.
(3) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(4) State summary criminal history information.
(5) Any arrest reports prepared by the police department or other
law enforcement agency.
(6) Any court-ordered psychiatric examination or evaluation
reports.
(7) The evaluation panel's placement recommendation report.
(f) If the defendant is confined in a state hospital or other
treatment facility as an inpatient, the medical director of the
facility shall, at six-month intervals, submit a report in writing to
the court and the evaluation panel setting forth the status and
progress of the defendant. The court shall transmit copies of these
reports to the prosecutor and defense counsel.
(g) When directing that the defendant be confined in a state
hospital pursuant to subdivision (a), the court shall select the
state hospital in accordance with the policies established by the
State Department of State Hospitals.
(h) For purposes of Sections 1026.1 to 1026.6, inclusive,
"community program director" means the person, agency, or entity
designated by the State Department of State Hospitals pursuant to
Section 1605 of this code and Section 5709.8 of the Welfare and
Institutions Code.
(i) For purposes of this section, "evaluation panel" means an
evaluation panel created pursuant to Section 7233 of the Welfare and
Institutions Code.
SEC. 2. Section 1370 of the Penal Code is
amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
shall proceed, and judgment may be pronounced.
(B) If the defendant is found mentally incompetent, the trial or
judgment shall be suspended until the person becomes mentally
competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, or to any
other available public or private treatment facility, including a
local county jail treatment facility, approved by an evaluation panel
created pursuant to Section 7233 of the Welfare and Institutions
Code that will promote the defendant's speedy restoration to mental
competence, or be placed on outpatient status as specified in Section
1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall so
notify the court and defendant in writing. After this notification,
and opportunity for hearing, the court shall order that the defendant
be delivered by the sheriff to a state hospital or other secure
treatment facility for the care and treatment of the mentally
disordered unless the court makes specific findings on the record
that an alternative placement would provide more appropriate
treatment for the defendant and would not pose a danger to the health
and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the evaluation panel.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court must serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be placed
and the district attorney for the county in which the violent felony
charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
confined in a state hospital or other treatment facility or placed on
outpatient status, the court shall proceed as follows:
(A) The court shall order the evaluation panel to evaluate the
defendant and to submit to the court within 15 judicial days of the
order a written recommendation as to whether the defendant should be
required to undergo outpatient treatment, or committed to a state
hospital or to any other treatment facility. A person shall not be
admitted to a state hospital or other treatment facility or placed on
outpatient status under this section without having been evaluated
by the evaluation panel. The evaluation panel shall evaluate the
appropriate placement for the defendant between a state hospital or a
local county jail treatment facility based upon guidelines provided
by the State Department of State Hospitals. If a local county jail
treatment facility is selected, the State Department of State
Hospitals shall provide treatment at the county jail treatment
facility and reimburse the county jail treatment facility for the
reasonable costs of the bed during the treatment. The six-month
limitation in Section 1369.1 shall not apply to individuals deemed
incompetent to stand trial who are being treated to restore
competency within a county jail treatment facility pursuant to this
section.
(B) The court shall hear and determine whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication, and shall proceed as follows:
(i) The court shall hear and determine whether any of the
following is true:
(I) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder requires
medical treatment with antipsychotic medication, and, if the
defendant's mental disorder is not treated with antipsychotic
medication, it is probable that serious harm to the physical or
mental health of the patient will result. Probability of serious harm
to the physical or mental health of the defendant requires evidence
that the defendant is presently suffering adverse effects to his or
her physical or mental health, or the defendant has previously
suffered these effects as a result of a mental disorder and his or
her condition is substantially deteriorating. The fact that a
defendant has a diagnosis of a mental disorder does not alone
establish probability of serious harm to the physical or mental
health of the defendant.
(II) The defendant is a danger to others, in that the defendant
has inflicted, attempted to inflict, or made a serious threat of
inflicting substantial physical harm on another while in custody, or
the defendant had inflicted, attempted to inflict, or made a serious
threat of inflicting substantial physical harm on another that
resulted in his or her being taken into custody, and the defendant
presents, as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm on
others. Demonstrated danger may be based on an assessment of the
defendant's present mental condition, including a consideration of
past behavior of the defendant within six years prior to the time the
defendant last attempted to inflict, inflicted, or threatened to
inflict substantial physical harm on another, and other relevant
evidence.
(III) The people have charged the defendant with a serious crime
against the person or property, involuntary administration of
antipsychotic medication is substantially likely to render the
defendant competent to stand trial, the medication is unlikely to
have side effects that interfere with the defendant's ability to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a reasonable manner, less
intrusive treatments are unlikely to have substantially the same
results, and antipsychotic medication is in the patient's best
medical interest in light of his or her medical condition.
(ii) If the court finds any of the conditions described in clause
(i) to be true, the court shall issue an order authorizing the
treatment facility to involuntarily administer
antipsychotic medication to the
defendant when and as prescribed by the defendant's treating
psychiatrist. The court shall not order involuntary administration of
psychotropic medication under subclause (III) of clause (i) unless
the court has first found that the defendant does not meet the
criteria for involuntary administration of psychotropic medication
under subclause (I) of clause (i) and does not meet the criteria
under subclause (II) of clause (i).
(iii) In all cases, the treating hospital, facility, or program
may administer medically appropriate antipsychotic medication
prescribed by a psychiatrist in an emergency as described in
subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication, and if
the defendant, with advice of his or her counsel, consents, the
court order of commitment shall include confirmation that
antipsychotic medication may be given to the defendant as prescribed
by a treating psychiatrist pursuant to the defendant's consent. The
commitment order shall also indicate that, if the defendant withdraws
consent for antipsychotic medication, after the treating
psychiatrist complies with subparagraph (C), the defendant shall be
returned to court for a hearing in accordance with subparagraphs (C)
and (D) regarding whether antipsychotic medication shall be
administered involuntarily.
(v) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication and if
the defendant, with advice from his or her counsel, does not consent,
the court order for commitment shall indicate that, after the
treating psychiatrist complies with subparagraph (C), the defendant
shall be returned to court for a hearing in accordance with
subparagraphs (C) and (D) regarding whether antipsychotic medication
shall be administered involuntarily.
(vi) Any report made pursuant to paragraph (1) of subdivision (b)
shall include a description of any antipsychotic medication
administered to the defendant and its effects and side effects,
including effects on the defendant's appearance or behavior that
would affect the defendant's ability to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a defense
in a reasonable manner. During the time the defendant is confined in
a state hospital or other treatment facility or placed on outpatient
status, either the defendant or the people may request that the
court review any order made pursuant to this subdivision. The
defendant, to the same extent enjoyed by other patients in the state
hospital or other treatment facility, shall have the right to contact
the patients' rights advocate regarding his or her rights under this
section.
(C) If the defendant consented to antipsychotic medication as
described in clause (iv) of subparagraph (B), but subsequently
withdraws his or her consent, or, if involuntary antipsychotic
medication was not ordered pursuant to clause (v) of subparagraph
(B), and the treating psychiatrist determines that antipsychotic
medication has become medically necessary and appropriate, the
treating psychiatrist shall make efforts to obtain informed consent
from the defendant for antipsychotic medication. If informed consent
is not obtained from the defendant, and the treating psychiatrist is
of the opinion that the defendant lacks capacity to make decisions
regarding antipsychotic medication based on the conditions described
in subclause (I) or (II) of clause (i) of subparagraph (B), the
treating psychiatrist shall certify whether the lack of capacity and
any applicable conditions described above exist. That certification
shall contain an assessment of the current mental status of the
defendant and the opinion of the treating psychiatrist that
involuntary antipsychotic medication has become medically necessary
and appropriate.
(D) (i) If the treating psychiatrist certifies that antipsychotic
medication has become medically necessary and appropriate pursuant to
subparagraph (C), antipsychotic medication may be administered to
the defendant for not more than 21 days, provided, however, that,
within 72 hours of the certification, the defendant is provided a
medication review hearing before an administrative law judge to be
conducted at the facility where the defendant is receiving treatment.
The treating psychiatrist shall present the case for the
certification for involuntary treatment and the defendant shall be
represented by an attorney or a patients' rights advocate. The
attorney or patients' rights advocate shall be appointed to meet with
the defendant no later than one day prior to the medication review
hearing to review the defendant's rights at the medication review
hearing, discuss the process, answer questions or concerns regarding
involuntary medication or the hearing, assist the defendant in
preparing for the hearing and advocating for his or her interests at
the hearing, review the panel's final determination following the
hearing, advise the defendant of his or her right to judicial review
of the panel's decision, and provide the defendant with referral
information for legal advice on the subject. The defendant shall also
have the following rights with respect to the medication review
hearing:
(I) To being given timely access to the defendant's records.
(II) To be present at the hearing, unless the defendant waives
that right.
(III) To present evidence at the hearing.
(IV) To question persons presenting evidence supporting
involuntary medication.
(V) To make reasonable requests for attendance of witnesses on the
defendant's behalf.
(VI) To a hearing conducted in an impartial and informal manner.
(ii) If the administrative law judge determines that the defendant
either meets the criteria specified in subclause (I) of clause (i)
of subparagraph (B), or meets the criteria specified in subclause
(II) of clause (i) of subparagraph (B), then antipsychotic medication
may continue to be administered to the defendant for the 21-day
certification period. Concurrently with the treating psychiatrist's
certification, the treating psychiatrist shall file a copy of the
certification and a petition with the court for issuance of an order
to administer antipsychotic medication beyond the 21-day
certification period. For purposes of this subparagraph, the treating
psychiatrist shall not be required to pay or deposit any fee for the
filing of the petition or other document or paper related to the
petition.
(iii) If the administrative law judge disagrees with the
certification, medication may not be administered involuntarily until
the court determines that antipsychotic medication should be
administered pursuant to this section.
(iv) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
hearing, no later than 18 days from the date of the certification, to
determine whether antipsychotic medication should be ordered beyond
the certification period.
(v) If, as a result of the hearing, the court determines that
antipsychotic medication should be administered beyond the
certification period, the court shall issue an order authorizing the
administration of that medication.
(vi) The court shall render its decision on the petition and issue
its order no later than three calendar days after the hearing and,
in any event, no later than the expiration of the 21-day
certification period.
(3) When the court orders that the defendant be confined in a
state hospital or other public or private treatment facility, the
court shall provide copies of the following documents which shall be
taken with the defendant to the state hospital or other treatment
facility where the defendant is to be confined:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) Any arrest reports prepared by the police department or other
law enforcement agency.
(F) Any court-ordered psychiatric examination or evaluation
reports.
(G) The evaluation panel's placement recommendation report.
(H) Records of any finding of mental incompetence pursuant to this
chapter arising out of a complaint charging a felony offense
specified in Section 290 or any pending Section 1368 proceeding
arising out of a charge of a Section 290 offense.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall select the
hospital in accordance with the policies established by the State
Department of State Hospitals.
(6) (A) (i) If the defendant is committed or transferred to a
state hospital pursuant to this section, the court may, upon
receiving the written recommendation of the medical director of the
state hospital and the evaluation panel that the defendant be
transferred to a public or private treatment facility approved by the
evaluation panel, order the defendant transferred to that facility.
If the defendant is committed or transferred to a public or private
treatment facility approved by the evaluation panel, the court may,
upon receiving the written recommendation of the evaluation panel,
transfer the defendant to a state hospital or to another public or
private treatment facility approved by the evaluation panel. In the
event of dismissal of the criminal charges before the defendant
recovers competence, the person shall be subject to the applicable
provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions Code).
If either the defendant or the prosecutor chooses to contest either
kind of order of transfer, a petition may be filed in the court for a
hearing, which shall be held if the court determines that sufficient
grounds exist. At the hearing, the prosecuting attorney or the
defendant may present evidence bearing on the order of transfer. The
court shall use the same standards as are used in conducting
probation revocation hearings pursuant to Section 1203.2.
(ii) Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the evaluation panel.
(B) If the defendant is initially committed to a state hospital or
secure treatment facility pursuant to clause (ii) or (iii) of
subparagraph (B) of paragraph (1) and is subsequently transferred to
any other facility, copies of the documents specified in paragraph
(3) shall be taken with the defendant to each subsequent facility to
which the defendant is transferred. The transferring facility shall
also notify the appropriate law enforcement agency or agencies having
local jurisdiction at the site of the new facility that the
defendant is a person subject to clause (ii) or (iii) of subparagraph
(B) of paragraph (1).
(7) An order by the court authorizing involuntary medication of
the defendant shall be valid for no more than one year. The court
shall review the order six months after the order was made to
determine if the grounds for the authorization remain. In the review,
the court shall consider the reports of the treating psychiatrist or
psychiatrists and the defendant's patients' rights advocate or
attorney. The court may require testimony from the treating
psychiatrist or psychiatrists and the patients' rights advocate or
attorney, if necessary. The court may continue the order authorizing
involuntary medication for up to another six months, or vacate the
order, or make any other appropriate order.
(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the evaluation panel concerning the
defendant's progress toward recovery of mental competence. When the
defendant is on outpatient status, the outpatient treatment staff
shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, where the defendant is confined
in a treatment facility, the medical director of the hospital or
person in charge of the facility shall report in writing to the court
and the evaluation panel regarding the defendant's progress toward
recovery of mental competence. When the defendant is on outpatient
status, after the initial 90-day report, the outpatient treatment
staff shall report to the community program director on the defendant'
s progress toward recovery, and the community program director shall
report to the court on this matter at six-month intervals. A copy of
these reports shall be provided to the prosecutor and defense counsel
by the court. If the report indicates that there is no substantial
likelihood that the defendant will regain mental competence in the
foreseeable future, the committing court shall order the defendant to
be returned to the court for proceedings pursuant to paragraph (2)
of subdivision (c). The court shall transmit a copy of its order to
the evaluation panel.
(2) When the court has issued an order authorizing the treating
facility to involuntarily administer antipsychotic medication to the
defendant, the reports made at six-month intervals concerning the
defendant's progress toward regaining competency shall also consider
the issue of involuntary medication. Each report shall include, but
is not limited to, all the following:
(A) Whether or not the defendant has the capacity to make
decisions concerning antipsychotic medication.
(B) If the defendant lacks capacity to make decisions concerning
antipsychotic medication, whether the defendant risks serious harm to
his or her physical or mental health if not treated with
antipsychotic medication.
(C) Whether or not the defendant presents a danger to others if he
or she is not treated with antipsychotic medication.
(D) Whether the defendant has a mental illness for which
medications are the only effective treatment.
(E) Whether there are any side effects from the medication
currently being experienced by the defendant that would interfere
with the defendant's ability to collaborate with counsel.
(F) Whether there are any effective alternatives to medication.
(G) How quickly the medication is likely to bring the defendant to
competency.
(H) Whether the treatment plan includes methods other than
medication to restore the defendant to competency.
(I) A statement, if applicable, that no medication is likely to
restore the defendant to competency.
(3) After reviewing the reports, the court shall determine whether
or not grounds for the order authorizing involuntary administration
of antipsychotic medication still exist and shall do one of the
following:
(A) If the original grounds for involuntary medication still
exist, the order authorizing the treating facility to involuntarily
administer antipsychotic medication to the defendant shall remain in
effect.
(B) If the original grounds for involuntary medication no longer
exist, and there is no other basis for involuntary administration of
antipsychotic medication, the order for the involuntary
administration of antipsychotic medication shall be vacated.
(C) If the original grounds for involuntary medication no longer
exist, and the report states that there is another basis for
involuntary administration of antipsychotic medication, the court
shall set a hearing within 21 days to determine whether the order for
the involuntary administration of antipsychotic medication shall be
vacated or whether a new order for the involuntary administration of
antipsychotic medication shall be issued. The hearing shall proceed
as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4) Any defendant who has been committed or has been on outpatient
status for 18 months and is still hospitalized or on outpatient
status shall be returned to the committing court where a hearing
shall be held pursuant to the procedures set forth in Section 1369.
The court shall transmit a copy of its order to the community program
director or a designee.
(5) If it is determined by the court that no treatment for the
defendant's mental impairment is being conducted, the defendant shall
be returned to the committing court. The court shall transmit a copy
of its order to the evaluation panel.
(6) At each review by the court specified in this subdivision, the
court shall determine if the security level of housing and treatment
is appropriate and may make an order in accordance with its
determination. If the court determines that the defendant shall
continue to be treated in the state hospital or on an outpatient
basis, the court shall determine issues concerning administration of
antipsychotic medication, as set forth in subparagraph (B) of
paragraph (2) of subdivision (a).
(c) (1) At the end of three years from the date of commitment or a
period of commitment equal to the maximum term of imprisonment
provided by law for the most serious offense charged in the
information, indictment, or misdemeanor complaint, whichever is
shorter, a defendant who has not recovered mental competence shall be
returned to the committing court. The court shall notify the
evaluation panel of the return and of any resulting court orders.
(2) Whenever any defendant is returned to the court pursuant to
paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
subdivision and it appears to the court that the defendant is gravely
disabled, as defined in subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall order the conservatorship investigator of the county
of commitment of the defendant to initiate conservatorship
proceedings for the defendant pursuant to Chapter 3 (commencing with
Section 5350) of Part 1 of Division 5 of the Welfare and Institutions
Code. Any hearings required in the conservatorship proceedings shall
be held in the superior court in the county that ordered the
commitment. The court shall transmit a copy of the order directing
initiation of conservatorship proceedings to the evaluation panel the
sheriff and the district attorney of the county in which criminal
charges are pending, and the defendant's counsel of record. The court
shall notify the evaluation panel, the sheriff and district attorney
of the county in which criminal charges are pending, and the
defendant's counsel of record of the outcome of the conservatorship
proceedings.
(3) If a change in placement is proposed for a defendant who is
committed pursuant to subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall provide notice and an opportunity to be heard with
respect to the proposed placement of the defendant to the sheriff and
the district attorney of the county in which criminal charges are
pending.
(4) If the defendant is confined in a treatment facility, a copy
of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) The criminal action remains subject to dismissal pursuant to
Section 1385. If the criminal action is dismissed, the court shall
transmit a copy of the order of dismissal to the evaluation panel.
(e) If the criminal charge against the defendant is dismissed, the
defendant shall be released from any commitment ordered under this
section, but without prejudice to the initiation of any proceedings
that may be appropriate under the Lanterman-Petris-Short Act, Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code.
(f) As used in this chapter, "community program director" means
the person, agency, or entity designated by the State Department of
State Hospitals pursuant to Section 1605 of this code and Section
4360 of the Welfare and Institutions Code.
(g) For the purpose of this section, "secure treatment facility"
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, any
facility licensed pursuant to Chapter 2 (commencing with Section
1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2
(commencing with Section 1569) of, Division 2 of the Health and
Safety Code, or any community board and care facility.
(h) For purposes of this section, "evaluation panel" means an
evaluation panel created pursuant to Section 7233 of the Welfare and
Institutions Code.
(i) This section shall not preclude a defendant from filing a
petition for habeas corpus to challenge the continuing validity of an
order authorizing a treatment facility or outpatient program to
involuntarily administer antipsychotic medication to a person being
treated as incompetent to stand trial.
SEC. 3. Section 7233 is added to the Welfare
and Institutions Code, to read:
7233. (a) The State Department of State Hospitals shall establish
a pool of psychiatrists and psychologists with forensic skills who
are employees of the department from which evaluation panels shall be
created pursuant to subdivision (b).
(b) The department shall create evaluation panels with each panel
consisting of three to five, inclusive, forensic psychiatrists or
psychologists from the pool created in subdivision (a).