BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1836


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          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.









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          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  








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               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  








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                  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  








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                  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  








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            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  








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               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  








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            "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."








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             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  








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               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










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          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