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REPEALED?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:
AB 468
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Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334