BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 468


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          Date of Hearing:  April 7, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 468  
          (Jones) - As Introduced February 23, 2015


                                  PROPOSED CONSENT


          SUBJECT:  Wards and conservatees: mental health


          KEY ISSUE:  SHOULD A 1990 STATUTORY MANDATE FOR THE DIRECTOR OF  
          STATE HOSPITALS TO ADOPT SPECIFIED REGULATIONS WHICH HAVE NOT  
          BEEN ADOPTED, AND FOR WHICH THERE IS NO DEMONSTRATED NEED, BE  
          REPEALED?


                                      SYNOPSIS


          This non-controversial bill, sponsored by the Conference of  
          California Bar Associations, seeks to remove from the Probate  
          Code a requirement for the Director of State Hospitals to adopt  
          regulations defining the term "mental health treatment facility"  
          for purposes of a prohibition in that same section of the  
          Probate Code against placement of a "ward or conservatee" in  
          such a facility. The author asserts that the requirement for the  
          Director of State Hospitals to adopt regulations has never been  
          satisfied in the 24 years since it went into effect and  
          therefore should be eliminated.  The author notes that the  
          requirement is not only unnecessary, but also confusing and  








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          misleading because it falsely indicates that a regulation has  
          been adopted, requiring attorneys to search for a regulation as  
          part of their due diligence.  The author asserts that searching  
          for non-existent regulations is a waste of the attorney's time  
          and the client's money.  The bill has no known opposition.


          SUMMARY:  Removes a 24 year-old requirement for regulations to  
          be adopted.  Specifically, this bill deletes the requirement for  
          the Director of State Hospitals to adopt and issue regulations  
          defining the term "mental health treatment facility" for  
          purposes of subdivision (a) of Probate Code Section 2356. 


          EXISTING LAW:  


          1)Provides that no person who is subject to a probate  
            conservatorship shall be placed in a mental health treatment  
            facility under this division against the will of the ward or  
            conservatee.  (Prob. Code Section 2356(a).  All further  
            statutory references are to the Probate Code, unless otherwise  
            indicated.)


          2)Provides that no spouse of a person who is subject to a health  
            care conservatorship because he or she cannot make health care  
            decisions for himself or herself has the ability to place his  
            or her spouse/conservatee in a "mental health treatment  
            facility".  (Section 3211(a).)


          3)Requires the Director of State Hospitals to adopt and issue  
            regulations defining "mental health treatment facility" for  
            purposes of subdivision (a) of Section 2356.  (Section  
            2356(a).)


          4)Defines "designated facility" or "facility designated by the  








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            county for evaluation and treatment" as a facility that is  
            licensed or certified as a mental health treatment facility or  
            a hospital, as defined in subdivision (a) or (b) of Section  
            1250 of the Health and Safety Code, by the State Department of  
            Public Health, and may include, but is not limited to, a  
            licensed psychiatric hospital, a licensed psychiatric health  
            facility, and a certified crisis stabilization unit.  (Welf. &  
            Inst. Code Section 5008(n).)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  Subdivision (a) of Probate Code 2356 prohibits the  
          involuntary placement of a person who is subject to a probate  
          conservatorship in a "mental health treatment facility."  There  
          is no case law defining "mental health treatment facility" for  
          purposes of Section 2356(a) as a regulation would have done if  
          it had been adopted by the Director of State Hospitals.   
          However, a number of cases discuss involuntary placement in  
          "mental health treatment facilities" for reasons other than the  
          illegal act of a conservator and mention the prohibition in  
          Section 2356(a) (in dicta), providing some guidance about the  
          type of facility that is considered by courts to be a "mental  
          health treatment facility."


          For example, in N. Bay Regional Ctr. v. Sherry S., a  
          developmentally disabled woman challenged her commitment to a  
          state hospital on the basis of Section 2356(a)'s prohibition  
          against a conservatee being involuntarily placed in "mental  
          health treatment facility."  The court observed that the  
          prohibition did not prohibit her placement because a different  
          statutory scheme (Welfare and Institutions Code section 4825)  
          allowed for her involuntary commitment (as a developmentally  
          disabled person who is "gravely disabled") upon the application  
          of a conservator, parent, or regional center.  (N. Bay Reg'l  
          Ctr. v. Sherry S. (1989) 207 Cal.App.3d 449, 453.)








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          The distinguishing characteristic of a "mental health treatment  
          facility" that sets it apart from other facilities and makes it  
          the type of facility in which a conservator cannot legally place  
          a conservatee against his or her wishes as provided in Section  
          2356(a) is the fact that such a facility is "locked."  (People  
          v. Karriker (2007) 149 Cal.App.4th 763, 788.)  "The primary  
          difference between a Probate Code conservator and an LPS  
          conservator is the LPS conservator's power to place the  
          conservatee in a locked facility, an action that a Probate Code  
          conservator cannot take."  (Id., at 780 [emphasis added].)   


           These cases show that courts understand the meaning of the term  
          "mental health treatment facility" for purposes of Section  
          2356(a) and in the context of other code sections that deal with  
          commitment in facilities designed for the treatment of mental  
          health issues.  Therefore, it does not appear to be necessary  
          for the Director of State Hospitals to adopt a regulation  
          defining the term "mental health treatment facility" for  
          purposes of subdivision (a) Section 2356.


          Furthermore, according to a spokesman for the Department of  
          State Hospitals (DSH), the responsibility for adopting this  
          regulation was originally assigned to the Department of Mental  
          Health.  After reorganization and dissolution of that  
          department, the responsibility was inadvertently delegated to  
          DSH.  The responsibility is misplaced because the department is  
          only responsible for state hospitals, where patients are  
          confined for treatment as mandated by a criminal or civil court  
          judge, and no other mental health treatment facilities.   
          According to the spokesman, DSH has "no intention of trying to  
          implement regulations no one seems to think are needed."  DSH  
          requested the elimination of the requirement to adopt  
          regulations "in last year's omnibus health committee cleanup  
          bill, but it was rejected as too substantive."  









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          In support, the Conference of California Bar Associations  
          writes:


               AB 468 proposes to amend Probate Code Section 2356(a)  
               to delete a requirement dating back to 1990 that the  
               Director of State Hospitals (formerly the Director of  
               Mental Health) adopt and issue regulations defining  
               'mental health treatment facility" for the purpose of  
               the subdivision. No such amendments have been adopted  
               in the past 24 years - or, if adopted, have been  
               repealed - and no known problems have resulted. 


               However, there is a downside to keeping this unheeded  
               and unnecessary requirement on the books: The fact the  
               statute refers to regulations tells a lawyer (or  
               anyone else) trying to apply the statute that he/she  
               needs to check those regulations as part of due  
               diligence. This is a waste of the attorney's time and  
               the client's money, because there are no regulations  
               to find. 


               Removing this language also clarifies to litigants  
               that the undefined terms carry their common and  
               ordinary meanings (Halbert's Lumber, Inc. v. Lucky  
               Stores, Inc. (1992), 6 Cal.App. 4th 1233, 1238  
               [undefined terms in statutes carry their "ordinary,  
               everyday meaning], not a different meaning which was  
               to have been developed, but was not. Eliminating the  
               requirement therefore benefits everyone involved.


          REGISTERED SUPPORT / OPPOSITION:











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          Support


          Conference of California Bar Associations (sponsor)


          Opposition


          None on file




          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334