BILL ANALYSIS Ó AB 468 Page 1 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HOSPITALS TO ADOPT SPECIFIED REGULATIONS WHICH HAVE NOT BEEN ADOPTED, AND FOR WHICH THERE IS NO DEMONSTRATED NEED, BE REPEALED?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 AB 468 Page 2 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 AB 468 Page 3 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.) AB 468 Page 4 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." AB 468 Page 5 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: AB 468 Page 6 Support Conference of California Bar Associations (sponsor) Opposition None on file Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334