BILL ANALYSIS Ó AB 1300 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1300 (Ridley-Thomas) - As Amended April 23, 2015 As Proposed to be Amended SUBJECT: MENTAL HEALTH: INVOLUNTARY COMMITMENT KEY ISSUE: SHOULD NON-DESIGNATED HOSPITALS AND THE PHYSICIANS, AND PROFESSIONAL STAFF WHO WORK IN THOSE HOSPITALS, BE GIVEN QUALIFIED IMMUNITY FOR THEIR DECISIONS RELATED TO THE EVALUATION OF WHETHER A PERSON IS A DANGER TO SELF OR OTHERS AND THEREFORE APPROPRIATELY DETAINED FOR A 72-HOUR MENTAL HEALTH HOLD TO PROTECT NON-DESIGNATED HOSPITALS AND THEIR PROFESSIONAL STAFF FROM ORDINARY NEGLIGENCE, BUT NOT FROM GROSS NEGLIGENCE OR WANTON OR WILLFULL MISCONDUCT? SYNOPSIS This bill, co-sponsored by the California Hospital Association, California Chapter of the American College of Emergency Physicians, and California Emergency Nurses Association, makes a number of changes, most of which are technical, to the law governing involuntary commitment to mental health facilities pursuant to Welfare and Institutions Code Sections 5150 and 5152. Many of the bill's technical aspects were addressed in the analysis of the Assembly Health Committee, which recently AB 1300 Page 2 approved the bill by an 18-0 vote (with one abstention). There are two main issues before this Committee. First, should the 72-hour detention period for the hold pursuant to Section 5150 of the Welfare and Institutions Code start when the person is detained by a peace officer, or when the person is admitted to a designated facility for treatment? Second (and more significantly), is it appropriate to provide qualified immunity to non-designated hospitals (those which are not specifically designated by the county (and therefore "designated facilities") for evaluation of whether a person is a danger to self or others, or is greatly disabled, and therefore appropriately detained in the facility for a 72-hour hold for acute mental health treatment? While existing law provides immunity to public agencies (which includes public hospitals) and their employees for the involuntary detention of persons, including the enforcement and release of detainment to the extent that the facility or employee acts in accordance with requirements of the Lanterman-Petris-Short (LPS) Act in detaining a person, and enforcing or releasing the detention (Government Code Section 856), no such immunity is provided to non-designated facilities or their employees. The author and sponsors contend that the immunity provisions for designated hospitals were drafted at a time when the state hospital system was used for acute mental health treatment and persons in mental health crisis were not often seen in non-designated facilities. The situation has changed in the past 52 years, according to the author, so that non-designated facilities routinely encounter these patients and need to make decisions about whether to request detention by law enforcement, or release the patients. The bill originally proposed that non-designated hospitals, physicians, and all staff at the hospitals would be granted complete immunity from liability in dealing with these patients. Opponents, including the Consumer Attorneys of California and NAMI California, reasonably observed that this is extremely broad immunity that would immunize even grossly negligent acts from any civil liability. With these concerns in mind, the author has agreed to amend the bill to provide qualified immunity to non-designated hospitals and certain personnel who encounter persons who are in acute mental health crisis. The bill is AB 1300 Page 3 supported by numerous hospitals and medical organizations. It is opposed by Consumer Attorneys of California and NAMI California and the California State Association of Counties and the County Behavioral Health Directors Association have expressed concerns about the bill. This analysis reflects the bill as it is proposed to be amended. SUMMARY: Makes numerous changes to the provisions regarding evaluation procedures, terms and lengths of detention, and criteria for release and transfer protocol related to the involuntary detention of individuals and enacts a number of provisions providing qualified immunity to a physician, employee, or other staff person acting within the scope of his or her official duties or employment for a designated facility or nondesignated hospital from civil and criminal liability. Among other things, this bill: 1)Defines "authorized professional" as a mental health professional who is authorized in writing by a county to provide services related to the evaluation, treatment, or transfer of an individual who is a danger to himself, herself, or others or who is gravely disabled. 2)Requires an authorized professional to have appropriate training in mental health disorders and determination of probable cause, and in providing services to persons with mental health disorders. 3)Defines a "designated facility" as a facility or a specific unit or part of a facility that is licensed or certified as a mental health evaluation facility, a mental health treatment facility, or a mental health evaluation and treatment facility. AB 1300 Page 4 4)Requires persons providing evaluation services to be properly qualified professionals and may be full-time employees, part-time employees, or independent contractors of a county, designated facility, or other agency providing face-to-face evaluation services. 5)Defines "probable cause determination" to mean a determination of whether there is probable cause for the detention of a person and requires that a probable cause determination be based solely on the criteria for detaining a person for evaluation and treatment when a person, as a result of a mental health disorder, is a danger to others, or him or herself, or gravely disabled. 6)Prohibits a probable cause determination from considering the availability of beds or services at designated facilities within or outside of the county. 7)Specifies that the period of 72-hour detention for evaluation and treatment begins at the time that the person is initially detained. 8)Requires that when an individual is detained and taken to a designated facility for evaluation and treatment, the individual shall be assessed to determine whether he or she can be properly served without being detained. 9)Requires a person to be provided evaluation, crisis intervention, or other inpatient or outpatient services on a voluntary basis if it is determined that he or she can be served without being detained. 10)Specifies that if a detained individual is first taken to the AB 1300 Page 5 emergency department (ED) of a non-designated hospital, the person should be detained only for the time necessary to ensure the patient is medically stable. 11)Prohibits mental health personnel from instructing a peace officer or authorized professional employee of an emergency transport provider acting at the direction of a peace officer seeking to transport a person to a designated facility for assessment to take the person to a jail solely because of the unavailability of an acute bed. 12)Prohibits a peace officer or other authorized professional employee of an emergency transport provider from being detained any longer than the time necessary to complete documentation of the factual basis of the detention for evaluation and safely complete the transfer of physical custody of the person. 13)Requires a peace officer, or an authorized professional who takes a person into custody, to complete and sign an application for detention for evaluation and treatment, stating the circumstances under which the person's condition was called to the attention of the peace officer or authorized professional, and stating that the peace officer or authorized professional has probable cause to believe that the person is, as a result of a mental health disorder, a danger to others, or to himself or herself, or gravely disabled. 14)Requires the presentation of the application to a designated facility or nondesignated hospital as a condition of continuation of the detention for evaluation and treatment; if the application is not presented to the designated facility or nondesignated hospital, as applicable, the person must be immediately released from detention for evaluation and treatment. AB 1300 Page 6 15)Requires that, in the case that a person detained by a peace officer or authorized professional is in a location other than a designated facility or nondesignated hospital, the original or copy of the application for detention for evaluation and treatment be presented to the designated facility where the individual is transported. 16)Allows a treating emergency professional to initiate a follow-up probable cause determination if the emergency professional determines that there is no longer probable cause to continue the detention for evaluation and treatment. 17)Requires that the determination to release a person from detention for evaluation and treatment be based solely on whether there is probable cause to continue the detention for evaluation and treatment. 18)Prohibits the determination to continue the detention or to release the person from detention from being based on the availability of beds or services at designated facilities within or outside of the county, or on anything other than whether there is probable cause for detention. 19)Requires each county to establish disposition procedures and guidelines with local law enforcement agencies for the safe and orderly transfer of persons detained for evaluation and treatment by a peace officer. 20)Requires the determination of probable cause to detain a person for evaluation and treatment to be independent of a determination as to whether the person has a psychiatric emergency medical condition requiring emergency services and AB 1300 Page 7 care. 21)Prohibits a determination of probable cause to detain a person for evaluation and treatment by a peace officer or an authorized professional from being deemed a psychiatric emergency medical condition unless a health care professional has determined that the person has a psychiatric emergency medical condition. 22)Prohibits a determination by a treating emergency professional or a psychiatric professional that an individual has a psychiatric emergency medical condition from being the only reason to establish probable cause and therefore consider an individual eligible to be detained for evaluation and treatment. 23)Prohibits a determination by a treating emergency professional or a psychiatric professional that a person detained for evaluation and treatment does not have a psychiatric emergency medical condition, or that the person's psychiatric emergency medical condition is stabilized, from being the only reason a person is eligible for release from detention for evaluation and treatment. 24)Provides qualified immunity to a designated facility or nondesignated hospital or a physician, employee, or other staff person from civil or criminal liability for any injury resulting from evaluation or providing services with care, as specified. 25)Provides qualified immunity to a nondesignated hospital and the professional staff of the nondesignated hospital from civil or criminal liability for the transfer of a person detained for evaluation and treatment to a designated AB 1300 Page 8 facility. 26)Provides qualified immunity to an emergency transport provider from civil or criminal liability for the continuation of the detention for evaluation and treatment while transporting the person to a designated facility at the direction of a peace officer who detained the person for evaluation and treatment, as specified. 27)Provides qualified immunity to a peace officer or authorized professional responsible for the detention of the person who transfers the custody of the person from civil or criminal liability for the continuation of detention during the person's stay in the ED prior to the discharge of the person from the hospital or the release of the person from detention. 28)Provides qualified immunity to the professional person in charge of the facility providing intensive treatment, the medical director of the facility, the psychiatrist directly responsible for the person's treatment, or the psychologist from civil or criminal liability for any action by a person prematurely released from detention. 29)Provides qualified immunity to the attorney or advocate representing the person, the court-appointed commissioner or referee, the certification review hearing officer conducting the certification review hearing, and the peace officer responsible for detaining the person from civil or criminal liability for any action by a person released at or before the end of 30 days pursuant to this article. 30)Provides qualified immunity to a provider of ambulance services licensed by the Department of the California Highway Patrol or operated by a public safety agency, to transport a AB 1300 Page 9 person who is in a hospital or facility on a voluntary basis to a designated facility for psychiatric treatment. 31)Prohibits a person from being detained for evaluation and treatment solely for the purpose of transporting the person, or transferring the person by a provider of ambulance services, to a designated facility or an ED of a nondesignated hospital. 32)Prohibits an individual from being subject to detention for the purpose of authorizing or providing evaluation, treatment, or admission to a facility, or as a condition for providing or paying for medical services, care, or treatment, unless there is probable cause to detain the person for evaluation and treatment and the person cannot be properly served on a voluntary basis. EXISTING LAW: 1)Declares the intent of the Legislature to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, and to eliminate legal disabilities. (Welfare and Institutions Code Section 5100. All further statutory references are to the California Welfare and Institutions Code, unless otherwise indicated.) 2)Authorizes a peace officer, member of the attending staff of an evaluation facility designated by the county for evaluation and treatment ("designated facility"), member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, or other professional person designated by the county, upon probable cause, to take a person with a mental disorder who is a danger to himself or AB 1300 Page 10 others, or who is gravely disabled, into custody and place him in a facility designated by the county. (Section 5150(a).) 3)Requires facilities, for the purposes of a 72-hour treatment and evaluation, to be designated by the county for evaluation and treatment and approved by the State Department of Health Care Services. (Section 5150(a).) 4)Requires that a person who is taken into custody for a 72-hour treatment and evaluation be provided an oral advisement that informs the person of: a) The name of the officer or mental health professional authorizing custody; b) The fact that the person is not under criminal arrest, but under a mental health examination; c) Where the evaluation will take place; d) That he or she may take a few personal items; and e) That he or she may make a phone call or leave a note to inform family and friends where he or she has been taken. (Section 5157.) 1)Requires that a person who is admitted for a 72-hour evaluation and treatment be provided with the following information in writing: a) That he or she is being placed in the psychiatric unit because he or she may hurt himself or herself, or others, or be unable to take care of himself or herself, as specified; b) A listing of the facts upon which the above allegation is based; c) That he or she will be held for a period of up to 72 hours, and when that period will begin; AB 1300 Page 11 d) That he or she may be held for a longer period of time; and e) His or her right to a lawyer, as specified. (Section 5157.) 2)Authorizes the county mental health director to develop procedures for the county's designation and training of professionals who would perform LPS Act functions including: a) License types, practice disciplines, and clinical experience of professionals; b) Initial and ongoing training and testing requirements for professionals; c) The application and approval processes for professionals seeking to be designated by the county, including the timeframe for initial designation and procedures for renewal of the designation; and d) The county's process for monitoring and reviewing these professionals to ensure appropriate compliance with state law, regulations, and county procedures. (Section 5121.) 1)Provides immunity to public agencies (which includes public hospitals) and their employees for the involuntary detention of persons, including the enforcement and release of detainment to the extent that the facility or employee acts in accordance with requirements of LPS in detaining a person, and enforcing or releasing the detention. (Government Code Section 856.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: The Lanterman-Petris-Short (LPS) Act was enacted in the 1960s to develop a statutory process under which individuals could be involuntarily held and treated in a mental health AB 1300 Page 12 facility in a manner that safeguarded their constitutional rights. The LPS Act was intended to balance the goals of maintaining the constitutional right to personal liberty and choice in mental health treatment, with the goal of safety when an individual may be a danger to oneself or others, or is gravely disabled. At the time of its enactment, the LPS Act was considered progressive because it afforded the mentally disordered more legal rights than most other states. Since its passage in 1967 the law in the field of mental health has continues to evolve toward even greater legal rights for mentally disordered persons. Need for the bill. Co-sponsor of the bill, the California Chapter of the American College of Emergency Physicians, state in support of the bill that district hospitals see the results of the variance in application of the LPS Act across the state - which results in individuals with mental illness languishing for hours, days and weeks awaiting psychiatric assessment and treatment in their hospitals. Supporters note that this measure increases the emphasis on the prompt provision of services in both LPS-designated and non-LPS designated facilities. The California Medical Association adds in support that the current system is failing psychiatric patients by forcing them through a fragmented medical delivery system that is inefficient and wastes valuable ED resources. No one benefits when a patient waits for days in an ED waiting for treatment. This bill will remedy this situation, resulting in benefits to patients in need of psychiatric treatment and to our state's EDs. Commencement of the 72-hour clock start for detention. This bill indicates that that the period of 72-hour detention for AB 1300 Page 13 evaluation and treatment shall begin at the time that the person is initially detained. While it is possible that the person may not receive a full 72 hours of medical care because some of that time will be taken up between the time when the person is taken into custody by a peace officer or other authorized individual and the time when the person is actually treated, it would be inappropriate to not start the clock until the person is assessed at a treatment facility. Balancing the desire to ensure the most appropriate care for individuals, while protecting their civil liberties, it seems appropriate to start the clock when the individual is taken into the custody of a peace officer. This method of calculating the total time allowed for the person's detention also incentivizes timely transport of the person to the treatment facility. It is also consistent with the Legislature's intent to "provide prompt evaluation and treatment of persons with mental health disorders." (Section 5001(b).) Qualified immunity provisions are logical and consistent with other California statutes. Explaining the need for qualified immunity for medical professionals working in or with non-designated hospitals, the bill's co-sponsor, the California Hospital Association, writes: The purpose of the immunity statutes is to protect the discretionary nature of the evaluation so that the professionals can be guided by their medical judgment and not the fear of liability. To do so, the statute must protect those who decide to involuntarily commit a patient as well as those who decide not to involuntarily commit a patient and to release an individual. Recognizing that psychiatry is not an exact science, the United States Supreme Court has recognized that "the subtleties and nuances of psychiatric diagnoses render certainties virtually beyond reach in most situations." AB 1300 Page 14 Unlike other health care providers, whose diagnoses can be verified at the outset by a CAT scan, MRI, x-ray, blood tests, palpation and surgery, psychiatric and mental health professionals cannot verify their diagnoses, treatment or discretionary judgment, except through hindsight. Co-sponsor, the California Chapter of the American College of Emergency Physicians (California ACEP), adds: When enacted, the LPS Act granted immunity to psychiatrists in designated facilities. Extending the qualified immunity to emergency physicians modernizes the Act, given that most patients with mental health conditions are now receiving care in emergency departments in non-designated facilities. Like so many other state approaches, this bill immunizes certain hospital personnel who provide services in conjunction with the detention process pursuant to Section 5150 et seq. from negligent actions when seeking to assist others in peril, but it logically does not immunize actions that are grossly negligent or outright reckless. This balanced approach, which encourages assistance to individuals in crisis by shielding staff on the Section 5150 response team from liability for ordinary negligence, but not from either gross negligence, or willful or wanton conduct, is reflective of the approach taken by many other statutes in state law. For example, a Good Samaritan who pulls an accident victim from an automobile is shielded from liability for inadvertently, but negligently causing physical injury to the injured person. (Health and Safety Code, Section 1799.102(b)(2).) On the other hand, if that person then attempted to choke or strike the injured person, the Good Samaritan would not be completely free from potential responsibility for the harm he or she caused. The "gross negligence or willful and wanton conduct" proviso in AB 1300 Page 15 the bill also appears to be completely consistent with other existing California statutes that grant qualified immunity to various professionals who render emergency care voluntarily, without expectation of compensation, and outside of the scope of their employment. (See, e.g., Bus. & Prof. Code sections 2727.5 and 2861.5 [emergency care rendered by nurses outside the scope of their employment]; Bus & Prof. Code section 3503.5 [emergency care rendered by physicians' assistants outside the scope of their employment]; Health and Safety Code, Section 1799.102 [person who renders emergency medical or nonmedical care at the scene of an emergency].) As originally in print, the bill provided virtually complete immunity from liability to hospital and emergency personnel who provide services in conjunction with the detention process pursuant to Section 5150 et seq. at private hospitals. With the addition of language that is standard in other qualified immunity statutes, "Nothing in this section shall exonerate from liability a person described in this section who acted with gross negligence or willful or wanton misconduct," these individuals are immunized from liability for ordinary negligence, but not from either gross negligence, or willful or wanton conduct. Regarding the bill's original immunity provisions, the Consumer Attorneys of California wrote: While we support the goal of consistent statewide practices, we must oppose the broad immunity provisions as they undermine public safety. AB 1300 provides immunity for the transportation and elopement of detained individuals. The National Institute for Elopement Prevention defines elopement as follows, "When a patient or resident who is cognitively, physically, AB 1300 Page 16 mentally, emotionally, and/or chemically impaired; wanders away, walks away, runs away, escapes, or otherwise leaves a caregiving facility or environment unsupervised, unnoticed, and/or prior to their scheduled discharge." Facilities who care for these detained, high risk individuals must take the appropriate precautions to prevent this from occurring. These facilities should not be immune from negligent, gross negligent or even intentional acts that can place detained mentally ill individuals in danger. Once you take someone's liberty, even for good cause, you must be required to provide reasonable care for their safety. NAMI California expressed similar concerns with the immunity provisions, stating that, "By removing liability from hospitals, an individual, or family of an individual, harmed by the actions of a facility will have no recourse, and significant incentives to provide quality care to patients experiencing psychiatric crises are removed." These concerns should be significantly mitigated by the author's agreement to limit the immunity provisions in the bill. Because the intent of the bill is to provide qualified immunity to certain hospital and emergency personnel who provide certain services in conjunction with Section 5150 detention process at private hospitals and it is intent of the Legislature to "provide prompt evaluation and treatment of persons with mental health disorders" (Section 5001(b)) and to "encourage the full use of all existing agencies, professional personnel, and public funds to accomplish these objectives and to prevent duplication of services and unnecessary expenditures" (Section 5001 (f)), it AB 1300 Page 17 is appropriate to provide these individuals with qualified immunity from liability. Prior similar legislation. SB 364 (Steinberg), Chapter 567, Statutes of 2013 - revised the law related to 72-hour treatment and evaluation for individuals with a mental health disorder by adding to the types of facilities that a county is allowed to designate to provide services and allowing county mental health directors to develop procedures for the designation and training of professionals who can perform functions of detention, evaluation, and treatment of persons subject to Section 5150. AB 110 (Blumenfield), Chapter 20, Statutes of 2013 - enacted the 2013-14 Budget Act, which includes, among its other provisions, $206 million ($142 million General Fund one-time) for a major investment in mental health services, including additional residential treatment capacity, crisis treatment teams, and triage personnel. SB 585 (Steinberg), Chapter 288, Statutes of 2013 - clarified that Mental Health Services Act funds and various County Realignment accounts may be used to provide mental health services under the Assisted Outpatient Treatment Demonstration Project Act of 2002, or Laura's Law, and allows counties to opt to implement Laura's Law through the county budget process. SB 1381 (Pavley), Chapter 457, Statutes of 2012 - deleted in state law references to "mental retardation" or a "mentally retarded person" and instead replaces them with "intellectual disability" or "a person with an intellectual disability." SB 665 (Petris), Chapter 681, Statutes of 1991 - established the right, under the LPS Act, to refuse antipsychotic medication and establishes hearing procedures to determine a person's capacity to refuse treatment with antipsychotic medication. AB 1300 Page 18 AB 2541 (Bronzan and Mojonnier), Chapter 1286, Statutes of 1985 - authorized county mental health programs to initiate services to various target populations, requires various studies and planning activities, and prohibits mental health personnel from instructing law enforcement personnel to take individuals detained for mental health evaluations to jail solely due to the unavailability of a mental health facility bed. AB 1424 (Thomson), Chapter 506, Statutes of 2001- made various changes to the LPS Act to: increase the involvement of family members in commitment hearings for the mentally ill; require more use of a patient's medical and psychiatric records in these hearings; and prohibit health plans and insurers from using the commitment status of a mentally ill person to determine eligibility for claim reimbursement. SB 677 (Lanterman, Petris, and Short), Chapter 1667, Statutes of 1967 - enacted the LPS Act, which governs involuntary civil commitment for individuals with mental illness, with the intent to end inappropriate, indefinite, and involuntary commitment and provide for prompt evaluation and treatment. REGISTERED SUPPORT / OPPOSITION: AB 1300 Page 19 Support California Hospital Association (co-sponsor) California Chapter of the American College of Emergency Physicians (co-sponsor) California Emergency Nurses Association (co-sponsor) Alameda Health System Antelope Valley Hospital Association of California Healthcare Districts Aurora Vista del Mar Hospital California Medical Association Citrus Valley Health Partners Cottage Health System Dignity Health District Hospital Association AB 1300 Page 20 El Camino Hospital Emergency Nurses Association Fremont Hospital Good Samaritan Hospital - Bakersfield Good Samaritan Hospital, San Jose Henry Mayo Newhall Hospital John Muir Health Long Beach Memorial Hospital Mad River Community Hospital Madera Community Hospital Mammoth Hospital Miller Children's & Women's Hospital Long Beach Mission Community Hospital AB 1300 Page 21 O'Connor Hospital Parkview Community Hospital Medical Center Pomona Valley Hospital Redlands Community Hospital Ridgecrest Regional Hospital Saint Louise Regional Hospital San Gorgonio Memorial Hospital Sharp HealthCare Sierra View Medical Center Southwest Healthcare System Stanford Health Care White Memorial Medical Center Opposition AB 1300 Page 22 Consumer Attorneys of California NAMI California (Oppose unless amended) Concerns California State Association of Counties County Behavioral Health Directors Association Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334