BILL ANALYSIS Ó
AB 193
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Date of Hearing: April 7, 2015
ASSEMBLY COMMITTEE ON HEALTH
Rob Bonta, Chair
AB 193
(Maienschein) - As Introduced January 28, 2015
SUBJECT: Mental health: conservatorship hearings.
SUMMARY: Permits a judge presiding over a probate
conservatorship to recommend to the county investigating officer
the establishment of a Lanterman-Petris-Short (LPS)
conservatorship when there is evidence of grave disability as a
result of a mental disorder or impairment by chronic alcoholism.
Specifically, this bill:
1)Allows a Probate Court to recommend a conservatorship to the
officer providing conservatorship investigation of the
person's county of residence if the court, in a proceeding
under the Probate Code, determines that a person for whom a
conservatorship has been established under the Probate Code
and may be gravely disabled as a result of a mental disorder
or impairment by chronic alcoholism, to provide individualized
treatment, supervision, and placement.
2)Requires a report to be filed within 30 days by the officer
providing the conservatorship investigation with the court
making the recommendation in the probate conservatorship.
3)Requires, if the recommendation for conservatorship was made
by the court, the existing probate conservator to disclose any
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records or information that may facilitate the investigation.
EXISTING LAW:
1)Provides for the involuntary commitment and treatment of
individuals with specified mental disorders and for the
protection of committed individuals, with the declared goal of
ending inappropriate, indefinite, and involuntary commitment
of mentally disordered persons, developmentally disabled
persons, and persons impaired by chronic alcoholism.
2)Creates a series of processes for individuals to receive
mental health treatment, including:
a) A process for a person to be taken into custody, upon
probable cause that they are a danger to self, a danger to
others, or gravely disabled as a result of a mental health
disorder, for a period of up to 72 hours, as specified;
b) For a person who has been detained for 72 hours, a
process for the person to be detained for up to14 days of
intensive treatment if the person continues to pose a
danger to self or others, or to be gravely disabled, and
the person has been unwilling or unable to accept voluntary
treatment;
c) For a person who has been detained for 14 days of
intensive treatment, a process for the person to be
detained for up to 30 days of intensive treatment if the
person remains gravely disabled and is unwilling or unable
to accept treatment voluntarily, or up to 180 days if the
person presents a demonstrated danger to others;
d) A process for the appointment of a conservator, known as
LPS conservatorship, for a person who is gravely disabled
as a result of a mental disorder or impairment by chronic
alcoholism, to provide individualized treatment,
supervision, and placement.
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i) Allows the professional person in charge of a
facility providing 72-hour, 14-day, or 30-day treatment
to recommend conservatorship to the conservatorship
investigator for a person who is gravely disabled and is
unwilling or unable to accept voluntary treatment;
ii) Requires the conservatorship investigator, if he
or she concurs with the recommendation, to petition the
superior court to establish LPS conservatorship or
temporary (up to 30 days) conservatorship;
iii) Requires the conservatorship investigator to
investigate all available alternatives and recommend
conservatorship only if no suitable alternatives are
available. Requires the investigator to provide a
report to the court that includes all relevant aspects
of the person's medical, psychological, financial,
family, vocational and social condition, and information
obtained from the person's family members, close
friends, and social worker or principal therapist;
iv) Allows the report to recommend for or against
giving the conservatee the right to: obtain a driver's
license; enter into contracts; vote; refuse or consent
to medical treatment; and, possess a firearm;
v) Requires LPS conservatorships to terminate after
one year, but allows the conservator, if he or she
determines that conservatorship is still required, to
petition the court for additional one-year periods;
vi) Allows the initiation of LPS conservatorship
proceedings upon the recommendation of the medical
director of a state hospital, a professional person in
charge of a local mental health facility, a local mental
health director, or the Chief Deputy Secretary for
Juvenile Justice, to the conservatorship investigator,
under specified circumstances;
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vii) Requires counties to designate the agency or
agencies to provide conservatorship investigation.
Allows counties to designate that conservatorship
services be provided by the public guardian or agency
providing public guardian services;
viii) Gives the person for whom conservatorship is
sought the right to demand a court or jury trial on the
issue of whether he or she is gravely disabled;
ix) Provides that a person cannot be appointed an LPS
conservator if the person can survive safely with the
help of responsible family, friends, or others who
indicate in writing that they are willing and able to
help provide food, clothing, or shelter; and,
x) Requires the facility treating a person for whom
LPS conservatorship is sought to advise the person that
he or she may request that information about the time
and place of the conservatorship hearing not be given to
family members, in those circumstances where the
proposed conservator is not a family member.
3)Establishes Laura's Law, which allows county boards of
supervisors, by resolution, to authorize court-ordered
assisted outpatient treatment for a person with a mental
illness who has a history of noncompliance with treatment and
who is likely to be a danger to self or others, or gravely
disabled, without treatment.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, probate courts
today are hampered in their ability to ensure proper care and
treatment of conservatees who suffer from a mental illness,
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and there currently are a significant number of people who are
not getting the care and treatment they need. Under the LPS
Act, the individuals authorized to initiate conservatorship
proceedings do not include probate judges or family members.
The author contends that some counties are becoming more and
more reluctant to initiate necessary conservatorship
proceedings. This becomes an even greater issue with gravely
disabled homeless persons who have no additional help or
anyone to be a proponent for their well-being. They are
continually dependent on other services that have limited
availability for their survival and are unable to receive the
assistance they really need.
The author contends that this creates a gap in treatment
availability, making it harder for individuals who are not
already hospitalized but whose problems stem from mental
illness, alcoholism, or drug abuse, and thus cannot qualify
for treatment under the Probate Code. By allowing probate
judges to initiate LPS conservatorship proceedings, this bill
is intended to remove obstacles to treatment for these
individuals.
2)BACKGROUND.
a) LPS conservatorship process. The LPS Act creates a
series of processes for the involuntary treatment of
individuals who are unwilling or unable to accept necessary
mental health treatment, generally conditional upon the
person being gravely disabled or posing a danger to self or
others. An LPS conservatorship, which lasts for a year
before it must be reinitiated and reapproved, is typically
sought after an individual has received 72-hour evaluation
and treatment and 14-day intensive treatment and continues
to be gravely disabled. The process begins when the
professional staff of the psychiatric facility, after
having evaluated and treated the individual, makes a
recommendation of conservatorship to the county
conservatorship investigator (typically designated as an
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office in the county, such as the Public Guardian's Office
or the Office of the Public Conservator). The county
conservatorship investigator is then required to conduct a
comprehensive investigation and file a petition for
conservatorship only if, after considering all available
alternatives to conservatorship, there are no suitable
alternatives available.
b) Probate conservatorships. Conservatorships governed by
the Probate Code are the most common type of
conservatorship. Probate conservatorships can be
established for adults who are unable to provide properly
for their personal needs for physical health, food,
clothing, or shelter. These conservatees are often elderly
people, but can also be seriously impaired younger people.
A petition for probate conservatorship can be filed by a
spouse, domestic partner, or family member of the proposed
conservatee, any interested state or local agency, the
conservatee himself or herself, or any other interested
person or friend. Current law contains provisions related
to conservatees who are unable to give informed consent for
medical treatment and gives the conservator the exclusive
authority to make health care decisions for the
conservatee, including requiring the conservatee to receive
health care, whether or not the conservatee objects. For
conservatees with dementia, current law allows the
conservator to place the conservatee in a locked nursing or
residential care facility and authorize the administration
of medications to treat dementia, provided that the court
makes specified findings. However, current law does not
contain provisions that allow a probate conservator to
place a conservatee in a locked facility for any reason
other than dementia.
3)MENTAL HEALTH NEEDS ASSESSMENT. In February 2012 the
Department of Health Care Services commissioned a Mental
Health and Substance Use System Needs Assessment
to satisfy federal requirements as part of California's
Section 1115 Bridge to Reform waiver approval. The report
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finds that there is an inadequate supply and a
mal-distribution of inpatient psychiatric beds and of
psychiatrists in the state. The report notes that a workforce
needs assessment from 2009 indicated that an additional 336
general psychiatrist full time equivalent (FTE) positions, 241
child/adolescent psychiatrist FTE positions, and 112 geriatric
psychiatrist FTE positions were needed at that time in order
to meet demand in the public mental health system. The report
further notes that rural or frontier areas of the state are
mostly devoid of psychiatric beds: 26 counties have no
inpatient psychiatric services of any kind. The report
further notes that 27 psychiatric facilities located in 12 of
the 58 counties are considered institutions for mental
diseases and therefore cannot bill Medi-Cal for inpatient
psychiatric services provided to their beneficiaries, further
limiting access. In addition, the report notes that data
provided by the federal Health Resources and Services
Administration on mental health professional shortage areas
indicates that approximately 3.8 million people, or 10.2% of
the population of California, lives in one of the mental
health professional shortage areas.
4)SUPPORT. The sponsors of the bill, Conference of California
Bar Associations, state that AB 193 would allow a judge
presiding over a probate conservatorship to recommend to the
county investigating officer that a LPS conservatorship be
established when there is medical evidence that an individual
is suffering from a grave disability as a result of a mental
disorder or impairment by chronic alcoholism. This provision
fills a gap in the law.
The sponsor argues that currently, one of the few persons who
can recommend to the conservatorship investigator that a LPS
conservatorship be established are the professional from the
agency or facility providing intensive treatment or evaluation
services. If an individual is not receiving such intensive
treatment or evaluation services, however, no such
recommendation can be made, and no LPS conservatorship may be
contemplated. At the same time, Probate Code §2356.5,
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governing traditional probate conservatorships, only allows
for a conservatee to be treated in a secured facility or to be
administered psychotropic medications when the conservatee has
a diagnosis of dementia and not for any other mental health
diagnosis or issue relating to alcohol abuse. The sponsor
concludes this creates a "gap" in treatment availability for
individuals who are not already hospitalized, and thus can't
be recommended, but whose problems stem from mental illness,
alcoholism or drug abuse, and thus cannot qualify for
treatment under the Probate Code.
5)OPPOSITION. The California Association of Counties, the
County Behavioral Health Directors Association of California,
and the Urban Counties Caucus state in opposition that
counties are primarily concerned about the potential costs,
workload levels, and overall erosion of county authority in
conservatorship investigations associated with authorizing the
Probate Court to recommend a LPS conservatorship to a county
conservatorship officer and compel that officer to submit a
report to the Probate Court within 30 days.
The opposition notes that currently, only a county
conservatorship officer or such designation official of the
county can conduct LPS conservatorship investigations to
determine whether a person meets the statutory definition of
gravely disabled. The opposition states that in compelling
the conservatorship officer to conduct an investigation and
report back to the Probate Court their findings, the bill is
contrary to current law, and will increase the number of LPS
conservatorship referrals, thereby increasing county costs.
The opposition argues that should the mandate in this bill
become law, counties not only anticipate a significant
increase in workload and county costs for conservatorship
investigations, but will also face increased costs due to the
arbitrary and unrealistic 30-day mandated timeline for the
investigation and submission of a report to the court.
6)PREVIOUS LEGISLATION.
a) SB 585 (Steinberg and Correa), Chapter 288, Statutes of
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2013, clarifies that Mental Health Services Act funds and
various County Realignment accounts may be used to provide
mental health services under Laura's Law and allows
counties to opt to implement Laura's Law through the county
budget process.
b) SB 364 (Steinberg), Chapter 567, Statutes of 2013,
broadens the types of facilities that can be used for
purposes of a 72-hour treatment and evaluation under the
LPS Act and permits county mental health directors to
develop procedures for the designation and training of
professionals that carry out functions related to 72-hour
holds.
c) AB 1424 (Thomson), Chapter 506, Statutes of 2001, makes
various changes to the LPS Act to: increase the involvement
of family members in commitment hearings for the mentally
ill; require more use of a patient's medical and
psychiatric records in these hearings; and prohibit health
plans and insurers from using the commitment status of a
mentally ill person to determine eligibility for claim
reimbursement.
d) SB 665 (Petris), Chapter 681, Statutes of 1991,
establishes the right, under the LPS Act, to refuse
antipsychotic medication and establishes hearing procedures
to determine a person's capacity to refuse treatment with
antipsychotic medication.
e) AB 2541 (Bronzan and Mojonnier), Chapter 1286, Statutes
of 1985, authorizes county mental health programs to
initiate services to various target populations, requires
various studies and planning activities, and prohibits
mental health personnel from instructing law enforcement
personnel to take individuals detained for mental health
evaluations to jail solely due to the unavailability of a
mental health facility bed.
f) SB 677 (Lanterman, Petris, and Short), Chapter 1667,
Statutes of 1967, enacts the LPS Act, which governs
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involuntary civil commitment for individuals with mental
illness, with the intent to end inappropriate, indefinite,
and involuntary commitment and provide for prompt
evaluation and treatment.
g) AB 987 (Maienschein), which died without a hearing in
the Assembly Health Committee, would have required the
conservatorship investigator to petition for
conservatorship if specified professional staff of a
treatment facility recommends conservatorship, thereby
eliminating the conservatorship investigator's discretion
to not concur with the professional staff's recommendation.
7)DOUBLE REFERRAL. This bill is double referred, upon passage
of this Committee, it will be referred to the Assembly
Committee on Judiciary.
8)COMMITTEE AMENDMENTS. This bill allows probate courts to
initiate conservatorship proceedings. Under current law, the
LPS conservatorship process is initiated by a health care
provider who makes a recommendation for LPS conservatorship to
the county conservatorship investigator. This bill, by
allowing the initial recommendation to come from a probate
court, bypasses the provider, creating subsequent gaps in the
protections that currently exist in the LPS conservatorship
process. Because there would be no health care provider,
known in law as the professional person, or facility at the
start of the process, the bill should be amended to specify
that a court can only recommend a conservatorship after
consulting with a health care provider.
The Committee may wish to make the following amendment on page
4, line 3 after "court" insert: in consultation with a
professional person in charge of an agency providing
comprehensive evaluation or a facility providing intensive
treatment,
REGISTERED SUPPORT / OPPOSITION:
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Support
Conference of California Bar Associations (sponsor)
Opposition
California State Association of Counties
County Behavioral Health Directors Association of California
Urban Counties Caucus
Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097
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