BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 468| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- CONSENT Bill No: AB 468 Author: Jones (R) Introduced:2/23/15 Vote: 21 SENATE HEALTH COMMITTEE: 8-0, 6/24/15 AYES: Hernandez, Nguyen, Mitchell, Monning, Nielsen, Pan, Roth, Wolk NO VOTE RECORDED: Hall ASSEMBLY FLOOR: 79-0, 4/13/15 (Consent) - See last page for vote SUBJECT: Wards and conservatees: mental health SOURCE: Conference of California Bar Associations DIGEST: This bill deletes the requirement in existing law for the Director of the Department of State Hospitals to adopt and issue regulations defining the term "mental health treatment facility" for purposes of involuntarily placing a ward or a conservatee. ANALYSIS: Existing law: 1)Prohibits a ward or conservatee who is subject to a probate conservatorship from being placed in a mental health treatment facility against his or her will. 2)Prohibits the spouse of a person who is subject to a health care conservatorship because he or she cannot make health care decisions for him- or herself from placing the ward or AB 468 Page 2 conservatee in a mental health treatment facility. 3)Requires the Director of the Department of State Hospitals (DSH) to adopt and issue regulations defining "mental health treatment facility." 4)Defines "designated facility" or "facility designated by the county for evaluation and treatment" as a facility that is licensed or certified as a mental health treatment facility or a hospital by the 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. This bill deletes the requirement for the Director of DSH to adopt and issue regulations defining the term "mental health treatment facility" for purposes of involuntarily placing a ward or a conservatee. Background According to DSH, the responsibility for adopting a definition of mental health treatment facility was originally assigned to the Department of Mental Health (DMH). After reorganization and dissolution of DMH, the responsibility was delegated to DSH. According to DSH, the responsibility is misplaced because it 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 are under DSH's purview. Mental health treatment facilities are mentioned in five sections of California statute. Three of these sections are in the Probate Code, including the section to which this bill pertains. The other sections are in the Penal Code and the Welfare and Institutions Code. None of the sections define mental health treatment facility, and a regulation to define the phrase was never promulgated. The section of law that this bill amends relates to the ability of a probate conservator to place a conservatee in mental health treatment facility. In People vs. Karriker (2007), which referred to "mental health treatment facilities", the court found that a probate conservator cannot AB 468 Page 3 place a conservatee in a locked facility, suggesting that the court believed that a "mental health treatment facility" is a locked facility. Comments Author's statement. According to the author, existing law (Probate Code §2356) includes a requirement that the Director of DSH adopt and issue regulations defining "mental health treatment facility" (until last year, the requirement was for the Director of DMH). This requirement was included in the statute when it was enacted in 1990, and no such regulations have ever been adopted or, if adopted, have been repealed. There is no evidence that the absence of such regulations has had any impact on the effectiveness of existing law. However, the fact the statute refers to regulations tells a lawyer (or anyone else) trying to apply the statute that he or 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 that was to have been developed, but was not. Eliminating the requirement, therefore, benefits everyone involved. Prior Legislation SB 1465 (Committee on Health, Chapter 442, Statutes of 2014), among other technical, clarifying changes, replaced references to DMH in existing law with DSH to reflect DMH's elimination. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified6/29/15) AB 468 Page 4 Conference of California Bar Associations (source) OPPOSITION: (Verified6/29/15) None received ARGUMENTS IN SUPPORT: The Conference of California Bar Associations (CCBA) writes in support that no regulations defining mental health treatment facility have been adopted in the past 24 years, and no known problems have resulted. The downside to keeping this requirement in statute is that those trying to apply the statute have to check regulations as part of due diligence. The CCBA states that this is a waste of time because there are no regulations to find. ASSEMBLY FLOOR: 79-0, 4/13/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Harper Prepared by:Shannon Muir / HEALTH / 6/30/15 13:48:18 AB 468 Page 5 **** END ****