BILL ANALYSIS Ó AB 1836 Page 1 Date of Hearing: March 15, 2016 ASSEMBLY COMMITTEE ON HEALTH Jim Wood, Chair AB 1836 (Maienschein) - As Introduced February 9, 2016 SUBJECT: Mental health: conservatorship hearings. SUMMARY: Permits a judge presiding over an established probate conservatorship to recommend an investigation for the establishment of a Lanterman-Petris-Short (LPS) conservatorship. Specifically, this bill: 1)Authorizes a court to recommend an investigation in a proceeding under the Probate Code, as specified, if a conservatorship has already been established under the Probate Code and after an evidentiary hearing has been attended by the conservatee and the conservatee's counsel, and if the court, in consultation with a licensed physician or psychologist providing comprehensive evaluation or intensive treatment, determines, based on evidence presented to the court, including medical evidence, that the conservatee may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily 2)Requires the court to appoint counsel if a conservatee cannot afford counsel relating to the proceedings in 1) above. AB 1836 Page 2 3)Requires the officer providing conservatorship investigation to file a copy of his or her report with the court making the recommendation for conservatorship in 1) above. 4)Authorizes the officer providing conservatorship investigation to petition the superior court in the patient's county of residence to establish conservatorship pursuant to an investigation conducted pursuant to 1) above. 5)Requires a conservator to disclose any records that may facilitate an investigation pursuant to 1) above. Requires a copy of the investigation report to be transmitted to the court specified in 1) above. 6)Makes other related and conforming changes. EXISTING LAW: 1)Provides for the involuntary commitment and treatment of individuals with specified mental disorders and for the protection of committed individuals, with the declared goal of ending inappropriate, indefinite, and involuntary commitment of mentally disordered persons, developmentally disabled persons, and persons impaired by chronic alcoholism. 2)Creates a series of processes for individuals to receive mental health treatment while being held involuntarily, known as a "5150 hold", including: a) A process for a person to be taken into custody, upon probable cause that they are a danger to self, a danger to others, or gravely disabled as a result of a mental health disorder, for a period of up to 72 hours, as specified; b) For a person who has been detained for 72 hours, a AB 1836 Page 3 process for the person to be detained for up to14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment; c) For a person who has been detained for 14 days of intensive treatment, a process for the person to be detained for up to 30 days of intensive treatment if the person remains gravely disabled and is unwilling or unable to accept treatment voluntarily, or up to 180 days if the person presents a demonstrated danger to others; d) A process for the appointment of a conservator, known as LPS conservatorship, for a person who has been involuntarily detained and is gravely disabled as a result of a mental disorder or impairment by chronic alcoholism, to provide individualized treatment, supervision, and placement. Specifies the following for purposes of an LPS conservatorship: i) Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend conservatorship to the conservatorship investigator for a person who is gravely disabled and is unwilling or unable to accept voluntary treatment; ii) The conservatorship investigator, if he or she concurs with the recommendation, may petition the superior court to establish LPS conservatorship or temporary (up to 30 days) conservatorship; iii) Requires the conservatorship investigator to investigate all available alternatives and recommend conservatorship only if no suitable alternatives are available. Requires the investigator to provide a report to the court that includes all relevant aspects of the person's medical, psychological, financial, family, vocational and social condition, and information AB 1836 Page 4 obtained from the person's family members, close friends, and social worker or principal therapist; iv) Allows the report provided for in iii) to recommend for or against giving the conservatee the right to: obtain a driver's license; enter into contracts; vote; refuse or consent to medical treatment; and, possess a firearm; v) Requires LPS conservatorships to terminate after one year, but allows the conservator, if he or she determines that conservatorship is still required, to petition the court for additional one-year periods; vi) Allows the initiation of LPS conservatorship proceedings upon the recommendation of the medical director of a state hospital, a professional person in charge of a local mental health facility, a local mental health director, or the Chief Deputy Secretary for Juvenile Justice, to the conservatorship investigator, under specified circumstances; vii) Requires counties to designate the agency or agencies to provide conservatorship investigation. Allows counties to designate that conservatorship services be provided by the public guardian or agency providing public guardian services; viii) Permits the person for whom conservatorship is sought the right to demand a court or jury trial on the issue of whether he or she is gravely disabled; ix) Provides that a person cannot be appointed an LPS conservator if the person can survive safely with the help of responsible family, friends, or others who indicate in writing that they are willing and able to help provide food, clothing, or shelter; and, x) Requires the facility treating a person for whom LPS conservatorship is sought to advise the person that AB 1836 Page 5 he or she may request that information about the time and place of the conservatorship hearing not be given to family members, in those circumstances where the proposed conservator is not a family member. 3)Permits any interested person to petition the court for the appointment of a "conservator of the person" for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter. Permits the appointment of a "conservator of the estate" for a person who is unable to manage his or her financial resources or resist fraud or undue influence. 4)Permits a conservator under the Probate Code to place a conservatee in a locked facility only if there is clear and convincing evidence of all of the following: a) The conservatee has dementia; b) The conservatee lacks capacity to give informed consent, as specified, to this placement; c) The conservatee would benefit from this placement; and, d) The court determines that placement in a locked facility is the least restrictive placement given the needs of the conservatee. FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, probate courts today are hampered in their ability to ensure proper care and AB 1836 Page 6 treatment of conservatees who suffer from a mental illness, and there are a significant number of people who are not getting the care and treatment they need. Under the LPS Act, the individuals authorized to initiate conservatorship proceedings do not include probate judges or family members. The author contends that some counties are becoming more and more reluctant to initiate necessary conservatorship proceedings. This becomes an even greater issue with gravely disabled homeless persons who have no additional help or anyone to be a proponent for their well-being. They are continually dependent on other services that have limited availability for their survival and are unable to receive the assistance they really need. The author contends that this creates a gap in treatment availability, making it harder for individuals who are not already hospitalized but whose problems stem from mental illness, alcoholism, or drug abuse, and thus cannot qualify for treatment under the Probate Code. By allowing probate judges to initiate LPS conservatorship proceedings, this bill is intended to remove obstacles to treatment for these individuals. 2)BACKGROUND. a) LPS conservatorship process. The LPS Act creates a series of processes for the involuntary treatment of individuals who are unwilling or unable to accept necessary mental health treatment, generally conditional upon the person being gravely disabled or posing a danger to self or others. An LPS conservatorship, which lasts for a year before it must be reinitiated and reapproved, is typically sought after an individual has received 72-hour evaluation and treatment and 14-day intensive treatment and continues to be gravely disabled. The process begins when the professional staff of the psychiatric facility, after having evaluated and treated the individual, makes a recommendation of conservatorship to the county AB 1836 Page 7 conservatorship investigator (typically designated as an office in the county, such as the Public Guardian's Office or the Office of the Public Conservator). The county conservatorship investigator is then required to conduct a comprehensive investigation and file a petition for conservatorship only if, after considering all available alternatives to conservatorship, there are no suitable alternatives available. b) Probate conservatorships. Conservatorships governed by the Probate Code are the most common type of conservatorship. Probate conservatorships can be established for adults who are unable to provide properly for their personal needs for physical health, food, clothing, or shelter. These conservatees are often elderly people, but can also be seriously impaired younger people. A petition for probate conservatorship can be filed by a spouse, domestic partner, or family member of the proposed conservatee, any interested state or local agency, the conservatee himself or herself, or any other interested person or friend. Current law contains provisions related to conservatees who are unable to give informed consent for medical treatment and gives the conservator the exclusive authority to make health care decisions for the conservatee, including requiring the conservatee to receive health care, whether or not the conservatee objects. For conservatees with dementia, current law allows the conservator to place the conservatee in a locked nursing or residential care facility and authorize the administration of medications to treat dementia, provided that the court makes specified findings. However, current law does not contain provisions that allow a probate conservator to place a conservatee in a locked facility for any reason other than dementia. 3)SUPPORT. The sponsors of this bill, the Conference of California Bar Associations, write in support that this bill will help close a gap in existing law that prevents existing probate conservatees who have become gravely disabled and/or a AB 1836 Page 8 "danger to themselves or others" from being evaluated for possible LPS conservatorship because they cannot enter the LPS process through the traditional (Welfare & Institutions Code §) "5150" process. This bill would do this by permitting a court, after considering medical evidence at a hearing which the proposed conservatee has a right to attend, to order evaluation for a probate conservatee to determine whether an LPS conservatorship is appropriate. 4)OPPOSITION. The Coalition for Elder and Dependent Adult Rights argue in opposition to this bill stating that it opens yet another door for expensive investigations, assessments, and many billable hours for conservators and attorneys and that conservatorships are fraught with abuse and that courts fail to provide oversight. 5)PREVIOUS LEGISLATION. a) AB 193 (Maienschein) of 2015, would have permitted a judge presiding over a probate conservatorship to recommend to the county investigating officer the establishment of a LPS conservatorship when there is evidence of grave disability as a result of a mental disorder or impairment by chronic alcoholism. AB 193 was vetoed, by the Governor stating: "I am returning Assembly Bill 193 without my signature. This bill would authorize a probate court to order an investigation for a Lanterman-Petris-Short conservatorship for an individual currently under probate conservatorship. Currently, professionals in charge of county mental health facilities are responsible for recommending an investigation for a Lanterman-Petris-Short conservatorship. This bill bypasses the clinical expertise of these professionals and for that reason I can't support it." AB 1836 Page 9 b) AB 987 (Maienschein) of 2014, which died without a hearing in the Assembly Health Committee, would have required the conservatorship investigator to petition for conservatorship if specified professional staff of a treatment facility recommends conservatorship, thereby eliminating the conservatorship investigator's discretion to not concur with the professional staff's recommendation. c) SB 364 (Steinberg), Chapter 567, Statutes of 2013, broadens the types of facilities that can be used for purposes of a 72-hour treatment and evaluation under the LPS Act and permits county mental health directors to develop procedures for the designation and training of professionals that carry out functions related to 72-hour holds. d) AB 1424 (Thomson), Chapter 506, Statutes of 2001, makes 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. e) SB 665 (Petris), Chapter 681, Statutes of 1991, establishes 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. f) AB 2541 (Bronzan and Mojonnier), Chapter 1286, Statutes of 1985, authorizes 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 AB 1836 Page 10 mental health facility bed. g) SB 677 (Lanterman, Petris, and Short), Chapter 1667, Statutes of 1967, enacts 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. 6)DOUBLE REFERRAL. This bill is double referred, upon passage of this Committee, it will be referred to the Assembly Committee on Judiciary. 7)COMMENTS. This bill is substantially similar to AB 193 (Maienschein), which was vetoed by the Governor because it bypasses the clinical expertise of treating professionals in recommending an investigation. The Committee may wish to clarify how the author will address the concerns raised in the Governor's veto. REGISTERED SUPPORT / OPPOSITION: Support Conference of California Bar Associations (sponsor) Opposition AB 1836 Page 11 Coalition for Elder & Dependent Adult Rights California Behavioral Health Directors Association of California California State Association of Counties California State Association of State Public Administrators, Public Guardians, and Public Conservators Urban Counties Caucus Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097