BILL ANALYSIS Ó AB 1962 Page 1 Date of Hearing: April 5, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 1962 (Dodd) - As Amended March 30, 2016 SUMMARY: Requires establishing guidelines regarding minimum education and training standards for psychiatrists and psychologists to be considered for appointment by the court to conduct evaluations of defendants' mental competence. Specifically, this bill: 1)Requires the Department of State Hospitals to adopt guidelines establishing minimum education and training standards for a psychiatrist of licensed psychologist to be considered for appointment by the court to conduct examinations of defendants regarding mental incompetence. 2)Requires the Department of State Hospitals to consult with the Judicial Council of California and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accredit bodies for psychologists and psychiatrists, and other interested stakeholders in the development of guidelines. EXISTING LAW: AB 1962 Page 2 1)Provides person cannot be tried to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. (Pen. Code, § 1367, subd. (a).) 2)States that a defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367, subd. (a).) 3)Specifies that if a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. (Pen. Code, § 1368, subd. (a).) 4)Provides that if counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing. (Pen. Code, § 1368, subd. (b).) 5)Requires a trial by court or jury of the question of mental competence to proceed in the following order: a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant; (Pen. Code § 1369, subd. (a).) b) In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination AB 1962 Page 3 thereof; (Pen. Code § 1369, subd. (a).) c) One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution; (Pen. Code § 1369, subd. (a).) d) The examining psychiatrists or licensed psychologists shall evaluate the nature of the defendant's mental disorder, if any, the defendant's ability or inability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence; (Pen. Code § 1369, subd. (a).) e) If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant; (Pen. Code § 1369, subd. (a).) f) The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others; (Pen. Code § 1369, subd. (a).) AB 1962 Page 4 g) If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail; (Pen. Code § 1369, subd. (a).) h) If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital; (Pen. Code § 1369, subd. (a).) i) The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment; (Pen. Code § 1369, subd. (a).) j) The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence; (Pen. Code § 1369, subd. (b)(1).) aa) If the defense declines to offer any evidence in support AB 1962 Page 5 of the allegation of mental incompetence, the prosecution may do so; (Pen. Code § 1369, subd. (b)(2).) bb) The prosecution shall present its case regarding the issue of the defendant's present mental competence; (Pen. Code § 1369, subd. (c).) cc) Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention; (Pen. Code § 1369, subd. (d).) dd) When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury; (Pen. Code § 1369, subd. (e).) ee) In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous; and (Pen. Code § 1369, subd. (f).) a) Only a court trial is required to determine competency in any proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. (Pen. Code § 1369, subd. (g).) 6)Specifies that a person cannot be tried, or have his or her probation, mandatory supervision, postrelease community AB 1962 Page 6 supervision, or parole revoked while that person is mentally incompetent. 7)States that a defendant is mentally incompetent if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367, subd. (a).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "It is crucial that we ensure that the psychiatrists and psychologists who determine mental competency of criminal defendants have the experience to be able to provide an accurate determination. Without adequate training, experience, and standards, these evaluators may incorrectly determine a malingerer is incompetent to stand trial and place them in our state hospital system. The Department of State Hospitals estimates that between 15-20 percent of the patients referred to them as incompetent to stand trial are patients who are faking mental illness to avoid being sentenced to prison (malingerers). This represents a significant unneeded cost to the state, and also a safety risk to employees and patients, as malingerers can prey on patients and staff once they arrive. Assaults occur on state hospital staff or other patients on a daily basis, sometimes resulting in serious injury, and ensuring evaluators are adequately trained will reduce erroneous commitments. Additionally, ensuring evaluators have the proper experience will ensure those who truly need treatment in our state hospitals are placed there to get the help they need and are not unnecessarily victimized." 2)Mental Incompetence: A defendant is mentally incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367.) Evidence of incompetence may come from several sources, AB 1962 Page 7 including the defendant's demeanor, irrational behavior, and prior mental examinations; however, to be entitled to a competency hearing, a defendant must exhibit more than "a preexisting psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel." (People v. Rogers (2006) 39 Cal.4th 826, 847.) When substantial evidence of incompetence exists, the trial court cannot proceed with the case against the defendant without first holding a competency hearing. Once the court declares a doubt about a defendant's competence to stand trial, or whenever there is substantial evidence of incompetence, the trial court must appoint a psychiatrist or licensed psychologist to examine the defendant. If defense counsel opposes a finding of incompetence, the court must appoint two experts: one chosen by the defense, one by the prosecution. An examining psychiatrist or psychologist must evaluate the defendant's alleged mental disorder and the defendant's ability to understand the proceedings and assist counsel, as well as address whether anitpsychotic medication is medically appropriate. (Pen. Code, § 1369, subd. (a).) The court may appoint other kinds of experts, as appropriate, to assist with a determination of competency. For instance, some courts appoint attorneys with expertise in the area of incompetency to testify as experts after examining the defendant, especially when the defendant's ability to cooperate with counsel is at issue or when there are especially complex legal issues that the defendant needs to understand. 3)Incompetence to Stand Trial is Determined in the Course of an Adversarial Process with Checks and Balances beyond the Evaluators: The existing process to determine Incompetent to Stand Trial (IST) involves mental health evaluations by experts who are psychiatrists or psychologists. But in addition to the evaluations by the experts, the process includes a judge, a district attorney, and a defense attorney. To the extent the AB 1962 Page 8 parties have concerns or disagreements about the validity of the determinations reached by the evaluators, the parties can demand a trial to determine if the defendant meets the legal standard for Not Guilty be Insanity (NGI) or IST. The trial allows additional evidence to be presented, and existing evidence to be challenged, by the parties in order reach an accurate determination of NGI or IST, if there is not a consensus among the parties. The fact that the psychiatrists, psychologists, or other experts appointed by the court are providing opinions within an adversarial setting ensures that the opinions are being screened by the defense, the prosecution and the court. To the extent that those parties relying on the opinions of the experts, don't have confidence in the quality of the evaluations, they can take appropriate action prevent the appointment of such experts in the future. 4)Current Standards for Training and Education of Experts Used to Evaluate Mental Incompetence: Current law allows courts to appoint a "psychiatrist, licensed psychologist, or other expert the court may deem appropriate" to examine a defendant regarding his mental competence. (Pen. Code, § 1369, subd. (a).) Current law does not provide further guidance concerning the education and training required before a psychiatrist or licensed psychologist can be appointed to conduct an evaluation of a defendant's mental competence. However, there are education and training requirements required to become a psychiatrist or a licensed psychologist. Any psychiatrist appointed by the court has graduated medical school, passed the medical boards, and completed the requisite training to be a psychiatrist. Likewise, a licensed psychologist has met the appropriate education and training requirements to become a licensed psychologist. This bill provides a process to establish educational and training requirements that might be particular to conducting mental competence evaluations that might not otherwise be addressed in the training and education for psychiatrists or psychologists. AB 1962 Page 9 5)Argument in Support: According to AFSCME, Local 2620, "AB 1962 which requires psychiatrists and licensed psychologists to have forensic experience when examining the mental competence of a defendant. The evaluation of a defendant to determine whether they are fit to stand trial, is inherently forensic in nature. Naturally, having an expert with forensic experience is necessary in order to make an accurate evaluation. Thus, in mandating forensic experience, psychiatrists and psychologists will be able discern the difference between a defendant who is truly incompetent to stand trial, and a defendant abusing the California correctional system to receive a less restrictive punishment (malingerers), and in turn placing putting more lives in danger. These patients do not pose a threat to public safety and cease to benefit from treatment with the State Hospitals." 6)Related Legislation: a) AB 1237 (Brown), would have required the Department of State Hospitals to establish, within the department, a pool of psychiatrists and psychologists with forensic skills, and would require the department to create evaluation panels from the pool of psychiatrists and psychologists. This bill would also have required the court to order an examination by an evaluation panel for a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent. Never heard in Assembly Public Safety. 7)Prior Legislation: a) AB 2543 (Levine), Legislative Session of 2013-2014, would have required the State Department of State Hospitals to establish a pool of psychiatrists and psychologists with forensic skills who would evaluate a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent. Held in Assembly Public Safety. AB 1962 Page 10 REGISTERED SUPPORT / OPPOSITION: Support Union of American Physicians and Dentists (Sponsor) American Federation of State, County and Municipal Employees, Local 2620 California Association of Psychiatric Technicians California Attorneys for Criminal Justice Peace Officers Research Association of California Opposition None Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744