BILL ANALYSIS Ó
AB 1237
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON HEALTH
Rob Bonta, Chair
AB 1237
(Brown) - As Introduced February 27, 2015
SUBJECT: State hospitals: placement evaluations.
SUMMARY: Requires the Department of State Hospitals (DSH) to
establish a pool of psychiatrists and psychologists with
forensic skills and requires the court to create evaluation
panels from the pool of psychiatrists and psychologists to
evaluate a defendant who pleads not guilty by reason of insanity
(NGI) or who may be mentally incompetent to stand trial (IST).
Specifically, this bill:
1)Requires DSH to establish a pool of psychiatrists and
psychologists with forensic skills who are employees of DSH
and to create, from the pool, forensic panels of three to five
psychiatrists and psychologists.
2)Requires the court to order an evaluation panel from the
established pool of psychiatrists and psychologists to
evaluate a defendant who pleads NGI or who may be mentally
IST.
EXISTING LAW:
1)Establishes DSH to manage the state hospital system and
provide mental health services to patients admitted in five
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DSH-administered state hospitals and three psychiatric
programs located in state prisons.
2)Establishes the Mentally Disordered Offender Act which, among
other things, provides for the involuntary commitment of
mentally ill persons to a state hospital pursuant to various
provisions of the Welfare and Institutions Code for civil
commitments, and provisions of the Penal Code for criminal
court commitments, including circumstances when the patient is
deemed IST or NGI.
3)Requires a court, when a defendant pleads NGI, or in instances
where there is a question of a defendant's mental competence,
to first appoint one or more psychiatrists or licensed
psychologists, as specified, to examine and evaluate the
defendant's mental status or disorder and to provide a report
to the court on the results of the evaluation, as specified.
FISCAL EFFECT: This bill has not been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, this bill is
necessary to bring into conformity the evaluation/placement of
patients coming to the state hospitals. The current practice
done by court contracted medical doctors and psychologists is
not suitable for existing forensic population. DSH staff have
vested interest in conformity and placement outcomes.
2)BACKGROUND.
a) Department of State Hospitals. DSH manages the
California state hospital system, which provides mental
health services to patients admitted into DSH facilities.
DSH oversees five state hospitals (Atascadero, Coalinga,
Metropolitan (in Los Angeles County), Napa, and Patton) and
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through an interagency agreement with the California
Department of Corrections and Rehabilitation also treats
inmates at prisons in Vacaville, Salinas Valley, and
Stockton. All eight facilities are licensed by the
California Department of Public Health and required to meet
or exceed regulatory standards to continue providing care.
A court mandates treatment for patients in DSH facilities.
Up to 90% of DSH patients are forensic commitments,
individuals sent to DSH through the criminal court system,
who have committed or have been accused of committing a
crime linked to their mental illness. DSH also treats
patients who have been classified as Sexually Violent
Predators. The remainder of the DSH population has been
committed through civil court because they are a danger to
themselves or others, under the Lanterman-Petris-Short
(LPS) Act. LPS patients can be held 72 hours for mental
health evaluation and treatment, evaluated for an
additional 14 day treatment period and, with further
evaluation and judicial review, have their commitments
extended in 180 day intervals.
Under state and federal law, all individuals who face
criminal charges must be mentally competent to help in
their defense. By definition, an individual who is IST
lacks the mental competency to participate in legal
proceedings. The process California courts must follow
when a defendant's competency is in doubt is often
initiated by defense attorneys concerned about the client's
mental capacity. The judge is then required to order an
evaluation of the person by court-appointed mental health
experts, during which time the court proceedings are
suspended. The evaluation and report guides the court to
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assess competency. Individuals charged with a violent
felony are typically ordered to undergo treatment at a
state hospital. According to Legislative Analyst's Office,
there is a monthly statewide waitlist that averages between
200 and 300 IST individuals, typically in county jails,
waiting for a bed to become available in a state hospital.
DSH has realized a significant increase in IST referrals
from the counties, resulting in an increased number of
patients pending placement in a state hospital. Between
January 2013 and January 2014, the total pending placement
census increased 136%, even with the activation of multiple
units system-wide that increased DSH's ability to admit IST
individuals.
b) NGI. A defendant will be found NGI if it is proven by a
preponderance of the evidence that the individual was
either: i) incapable of knowing or understanding the
nature and quality of the act; or, ii) incapable of
distinguishing right from wrong at the time the offence was
committed. The insanity defense is used primarily when a
criminal charge is a serious felony. If a court or jury
finds a person NGI, the court must determine whether to
confine the person in a state hospital or outpatient
treatment program. If an individual is adjudged NGI, they
will be committed to a state hospital for treatment. The
individual is committed for no longer than the maximum
sentence for which they could have been imprisoned, unless
they represent a substantial danger, at which successive
two-year extensions can be sought. To be released, a
person found NGI or the director of the state hospital must
petition the court for release, typically to outpatient
treatment. NGI individuals currently account for 21% of
the DSH population.
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c) Forensic Specialists. Forensic psychology, as defined
by the American Psychological Association, is the
application of clinical specialties to the legal arena.
Forensic psychologists are called on to assess individuals
who are involved, in one way or another, with the legal
system. According to the American Board of Psychiatry and
Neurology, forensic psychiatry is a subspecialty that
involves having psychiatric focus on interrelationships
with civil, criminal, and administrative law, evaluation
and specialized treatment of individuals involved with the
legal system, incarcerated in jails, prisons, and forensic
psychiatry hospitals. To be certified as forensic
specialists, both psychologists and psychiatrists must
complete additional training and testing requirements.
3)SUPPORT. The sponsor of the bill is the Union of American
Physicians and Dentists (UAPD). UAPD and the American
Federation of State, County and Municipal Employees, both
write in support that existing law establishes DSH for
administration of state hospitals and provides for the
involuntary confinement of certain individuals in those state
hospitals, including a defendant who has been found mentally
IST or who has been found to be insane at the time he/she
committed the crime. Under existing law, the courts contract
with psychiatrists and psychologists to assess patients who
are appropriate for placement in the state hospitals. The
supporters note that this bill would require DSH to establish,
within DSH, a pool of psychiatrists and psychologists with
forensic skills, and would require DSH to create evaluation
panels from the pool of psychiatrists and psychologists. This
bill would require the court to order an evaluation panel to
evaluate a defendant who pleads not guilty by reason of
insanity or who may be mentally incompetent.
4)OPPOSITION. Disability Rights California (DRC) writes in
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opposition that this bill requires all of the psychiatrists or
psychologists to be DSH employees. DRC writes that this would
narrow the pool of available psychiatrists/psychologists. DRC
has concerns that patients would not get a fair trial if the
panels are limited to DSH employees. DRC states that instead
of directly appointing two (or, for NGI, two or three)
psychiatrists/psychologists from a panel, the court would
appoint a panel, created by DSH from a pool of psychiatrists
and/or psychologists. There is nothing in this bill about how
many DSH employees would be in the pool or how the panels
would be selected, other than a provision that says the
defense and prosecution are required to each confer with DSH
regarding selection of the panelists. This change would
hamstring the courts and counsel for both parties. In fact,
DRC states the defense may have to hire an expert in every
case if this provision is adopted.
DRC argues that under current law, for IST, the prosecution
chooses one psychiatrist/psychologist and the defense chooses
the other. This bill changes current law to require the
defense and prosecution to each confer with DSH regarding
selection of the panelists. This bill provides DSH with
plenary power to select the panel subject to court approval.
There is nothing in this bill that would preclude one or both
parties from objecting to appointment of the panel by the
court, and presumably, the court could order DSH to create a
new panel. But there would no longer be a right for either
the defense or prosecution to select one of the panelists.
5)PREVIOUS LEGISLATION.
a) AB 2186 (Lowenthal), Chapter 733, Statutes of 2014,
revises the timelines and requires the court to use
opinions developed by examining medical professionals when
the court is determining if an IST defendant lacks the
capacity to make decisions regarding the administration of
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antipsychotic medication.
b) AB 2190 (Maienschein), Chapter 734, Statutes of 2014,
allows a court to place a person found to be IST or NGI on
outpatient status within a mental health treatment
facility.
c) AB 2625 (Achadjian), Chapter 742, Statutes of 2014,
specifies procedures relative to returning to court, a
defendant committed to a state hospital or other facility
for treatment as IST who has not recovered competency.
d) AB 2543 (Levine) of 2014 would have allowed for an
evaluation panel to determine whether a defendant committed
to DSH to regain competency lacks capacity to make
decisions regarding antipsychotic medication. AB 2543 was
held in the Assembly Public Safety Committee and the
subject matter was referred to the Committee on Rules for
assignment to the proper committee for study.
e) AB 610 (Achadjian), Chapter 705, Statutes of 2013,
requires the county of commitment to pay the non-treatment
costs associated with any hearing for an order seeking
involuntary treatment of psychotropic medication for a
mentally disordered offender whose commitment in a state
hospital has been extended beyond the expiration of parole.
6)DOUBLE REFERRAL. This bill is double referred; if this bill
passes this Committee it will be referred to the Assembly
Public Safety Committee.
7)POLICY COMMENT. This bill substitutes two to three court
appointed psychiatrists or licensed psychologists with an
evaluation panel of three to five forensic psychiatrists or
psychologists from the pool established and employed by DSH.
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Current law requires court appointed psychiatrists or
psychologists to have at least five years of postgraduate
experience in the diagnosis and treatment of emotional
disorders. This bill simply requires individuals in the
established pool of psychiatrists or psychologists to have
forensic skills. This basic requirement is too broad and the
author may want to consider amendments that establish more
stringent qualifications.
REGISTERED SUPPORT / OPPOSITION:
Support
Union of American Physicians and Dentists (sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
Opposition
Disability Rights California
Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097
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