BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: SB 253
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|Author: |Monning |
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|Version: |March 23, 2015 |Hearing |April 21, 2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sara Rogers |
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Subject: Dependent children: psychotropic medication
SUMMARY
This bill provides that an order of the juvenile court
authorizing psychotropic medication shall require clear and
convincing evidence of specified conditions, including a
requirement that the prescribing physician attest under penalty
of perjury that he or she has conducted a comprehensive
evaluation of the child, as specified. It also prohibits the
authorization of psychotropic medications without a second
independent medical opinion under specified circumstances.
Furthermore, this bill prohibits the authorization of
psychotropic medications unless the court is provided
documentation that appropriate lab screenings, measurements, or
tests have been completed, as specified. Finally, this bill
requires the court, no later than 45 days following an
authorization for psychotropic medication, to conduct a review
to determine specified information regarding the efficacy of the
child's treatment plan.
ABSTRACT
Existing law:
1) Establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse or
harm shall be within the jurisdiction of the juvenile court
which may adjudge that person to be a dependent child of
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the court. (WIC 300)
2) Permits the court to make any and all reasonable orders
for the care, supervision, custody, conduct, maintenance,
and support of an adjudged dependent child, including
medical treatment, subject to further order of the court.
(WIC 362)
3) Permits the court to order that a social worker may
authorize the medical, surgical, dental or other remedial
care for a dependent child that has been placed by the
court under the custody or supervision of a social worker
if it appears there is no parent or guardian capable of
authorizing or willing to authorize medical, surgical,
dental or other remedial care. (WIC 369 (c))
4) Permits a minor who is 12 years of age or older to
consent to mental health treatment or counseling services
if, in the opinion of the attending professional person,
the minor is mature enough to participate intelligently in
the mental health treatment or counseling services. (HSC
124260)
5) Provides that only a juvenile court judicial officer
shall have authority to make orders regarding the
administration of psychotropic medications for a minor who
has been adjudged a dependent of the court and removed from
the physical custody of his or her parent. (WIC 369.5)
6) Requires court authorization for the administration of
psychotropic medication to be based on a request from a
physician, indicating the reasons for the request, a
description of the minor's diagnosis and behavior, the
expected results of the medication, and a description of
any side effects of the medication. Requires the Judicial
Council to adopt rules of court and develop appropriate
forms. (WIC 369.5)
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7) Requires, within seven court days from receipt, the
juvenile court judicial officer to either approve or deny
in writing a request for authorization for the
administration of psychotropic medication, or to set the
matter for hearing. (WIC 369.5)
This bill:
1) Provides that an order of the juvenile court authorizing
psychotropic medication shall require clear and convincing
evidence of the following, and requires the requesting
agency to bear the burden of proof of the following:
The medication is not being used as
punishment, for the convenience of staff, as a
substitute for less invasive treatments, or in
quantities or dosages that interfere with the child's
treatment program.
Written consent for a child that is over the
age of 12 has been obtained, after being advised of
alternative treatments, informed of the benefits and
risks of the medication, and understanding of his or
her right to refuse the medication.
The prescribing physician has testified under
penalty of perjury that a comprehensive examination
has been conducted, that takes into account the
child's history of trauma and medication use and is
based on multiple sources, as specified. Additionally
requires the physician to attest that the dosage is
appropriate for the child.
The short and long-term risks associated with
the use of psychotropic medications by the child do
not outweigh the reported benefits.
There are no less invasive and effective
treatment options available to meet the needs of the
child.
1) Prohibits the authorization of psychotropic medications
without a second independent medical opinion under the
following circumstances.
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The request is for a child five years of age
or younger.
The request would result in the child being
administered three or more psychotropic medications
concurrently.
The request is for the concurrent
administration of any two drugs from the same class,
unless the request is for medication tapering and
replacement, and is limited to 30 days.
The request is for a dosage that exceeds the
amount recommended for children.
The request is for the administration of a
psychotropic medication for a use not FDA-approved for
children or adolescents.
1) Prohibits the authorization of psychotropic medications
unless the court is provided documentation that all of the
appropriate lab screenings, measurements, or tests have
been completed, no more than 30 days prior to the
submission of the request.
2) Requires the court, no later than 45 days following an
authorization for a new psychotropic medication, or at the
next review hearing scheduled, whichever is earlier, to
conduct a review to determine the following:
Whether the child is taking the medication or
medications.
To what extent the symptoms warranting the
authorization have been alleviated.
What, if any adverse effects the child has
suffered.
Any steps taken to address those effects.
The date or dates of follow-up visits with the
prescribing physician since the authorization.
1) Requires the court to reconsider, modify, or revoke its
authorization if it determines that the proffered benefits
of the medication have not been demonstrated or that the
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risks of the medication outweigh the benefits.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, nearly one in four children placed in
foster care receive powerful psychotropic drugs, and that of
these children, 52 percent are given antipsychotics, drugs that
include risk factors that can lead to life-long disabilities
such as tremors, obesity, and diabetes. Additionally the author
states that 48 percent of foster children are given
antidepressants that include an FDA black box warning for use by
children.
The author states that frequent monitoring of children given
psychotropic medications is required as part of the health care
guidelines of the American Psychiatric Association, the American
Diabetes Association and the American Association of Child and
Adolescent Psychiatrists. However, the author cites findings
from the California Drug Use Review Board indicating that the
required baseline lab and blood tests were completed for fewer
than four in ten children administered the psychotropic drug.
California Child Welfare System
The California Department of Social Services (CDSS) supervises
the 58 county-administered Child Welfare Services systems that
investigate approximately 32,000 reports of abuse and neglect of
children annually. According to CDSS, as of January 2015, there
were nearly 63,000 children in foster care placement, with
nearly one in three residing in Los Angeles County. Following a
court order to remove a child from parental custody, existing
law requires the court to order the care, custody, control and
conduct of the child to be under the supervision of the social
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worker.<1> Existing law also provides that only a juvenile court
judicial officer has authority to make orders for the
administration of psychotropic medications for a dependent
child.
Psychotropic Medication Use in Children
Concern over the use of psychotropic medications among children
has been well-documented in research journals and the mainstream
media for more than a decade. The category of psychotropic
medication is fairly broad, intending to treat symptoms of
conditions ranging from ADHD to childhood schizophrenia. Some of
the drugs used to treat these conditions are FDA-approved,
including stimulants like Ritalin for ADHD, however only about
31 percent of psychotropic medications have been approved by the
U.S. Food and Drug Administration (FDA) for use in children or
adolescents. It is estimated that more than 75 percent of the
prescriptions written for psychiatric illness in this population
are "off label" in usage, meaning they have not been approved by
the FDA for the prescribed use, though the practice is legal and
common across all manner of pharmaceuticals.<2>
Anti-psychotic medications, used to treat more severe mental
health conditions, include powerful brand-name drugs such as
Haldol, Risperdal, Abilify, Seroquel and Zyprexa. They have very
limited approval by the FDA for pediatric use beyond rare and
severe conduct problems that are resistant to other forms of
treatment, such as Tourette's syndrome, behavioral symptoms
associated with autistic disorder, childhood schizophrenia, and
bipolar disorder.<3> However, the off-label use of these
anti-psychotics among children is high, particularly among
foster children. According to a study published in 2011,
children who took antipsychotic medications were likely to
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<1> WIC 361.2
<2>https://www.magellanprovider.com/mhs/mgl/providing_care/clinic
al_guidelines/clin_monographs/psychotropicdrugsinkids.pdf
<3> Harrison, et al, Antipsychotic Medication Prescribing Trends
in Children and Adolescents, Journal of Pediatric Health care,
March 2012.
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suffer ill health effects including "cardiometabolic and
endocrine side-effects" as well as significant weight gain.<4>
The authors recommended that collaboration between child and
adolescent psychiatrists, general practitioners and
pediatricians is essential to "reduce the likelihood of
premature cardiovascular morbidity and mortality."
Compounding the potential for unintended side effects is the use
of combinations of psychotropic medications, which foster youth
are particularly likely to be prescribed, despite limited
evidence of clinical efficacy.<5> Protecting the health and
well-being of children who are taking one or more psychotropic
medication requires extensive and ongoing health and metabolic
screenings to identify potential adverse effects quickly,
however in practice many children many fail to receive ongoing
screenings and adverse effects may go undetected causing
permanent injury or death.
Drugging our Children Media Series
A recent series of stories published in the San Jose Mercury
News<6> and most recently in the Los Angeles Times, highlighted
growing concerns that psychotropic medications have been relied
on by California's child welfare and children's mental health
systems as a means of controlling, instead of treating, youth
who suffer from trauma-related behavioral health challenges. The
series detailed significant challenges in accessing pharmacy
benefits claims data held by the California Department of Health
Care Services (DHCS), eventually overcome through a Public
Records Act request and lengthy negotiations, and it
demonstrated that prescribing rates were far higher than had
been anticipated by child welfare system experts.
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<4> DeHert, Dobbelaere, Sheridan, et al "Metabolic and endocrine
adverse effects of second-generation antipsychotics in children
and adolescents: A systematic review of randomized, placebo
controlled trials and guidelines for clinical practice,"
European Psychiatry, April 2011, pgs 144-58.
<5> http://www.ncbi.nlm.nih.gov/pubmed/25022817
<6> Drugging our Kids. Karen De Sa. San Jose Mercury News.
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Court oversight mechanisms
SB 543 (Bowen, Chapter 552, Statutes of 1999) mandated that,
once a child has been adjudged a dependent of the state, only
the court may authorize psychotropic medications for the child,
based on a request from a physician that includes the
following:<7>
The reasons for the request;
A description of the child's diagnosis and behavior;
The expected results of the medication;
A description of any side effects of the medication.
Under the statute, psychotropic medications are defined as those
"administered for the purpose of affecting the central nervous
system to treat psychiatric disorders or illnesses. These
medications include, but are not limited to, anxiolytic agents,
antidepressants, mood stabilizers, antipsychotic medications,
anti-Parkinson agents, hypnotics, medications for dementia, and
psychostimulants."
In accordance with this statute, the Administrative Office of
the Courts established a series of court documents generally
referred to as "the" JV 220, which includes a statement
completed and signed by the prescribing physician that includes
the child's diagnosis, relevant medical history, other
therapeutic services, the medication to be administered, and the
basis for the recommendation.
In addition, a form must be included indicating notice has been
provided to the parents or legal guardians, their attorneys of
record, the child's attorney of record, the child's guardian ad
litem, the child's current caregiver, the child's Court
Appointed Special Advocate, if any, and if a child has been
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<7> WIC 369.5
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determined to be an Indian child, the Indian child's tribe.<8>
The procedure for notification varies by county - the
responsibility may fall primarily to the child welfare agency,
or it may be shared with the juvenile court clerk's office that
may be responsible for notifying the attorney and the Court
Appointed Special Advocate.
Within four court days after notification, a parent or guardian,
the child, the attorney for either, the guardian ad litem, or
the Indian child's tribe may file an objection to the
application. Following this period, the court files a final
order.
Oversight Concerns
Stakeholders have expressed widespread concerns about the
efficacy of the current oversight mechanisms, given that in many
counties the court lacks access to medical experts to assist in
evaluating medical information. Child welfare advocates and
clinicians report that in many instances a prescribing physician
who fills out the JV 220 form may not have a history of treating
the child, and thus may not be aware of prior medications or
alternative treatments that have (or have not) been tried. Such
information is frequently left blank on the JV 220.
Additionally, as noted by the author, the California Drug Use
Review recently found that fewer than four in ten children had
received the required baseline laboratory screenings prior to
being administered a psychotropic medication. In theory, a
health and education passport - a paper file of the youth's
medical history - is supposed to be provided to a new caregiver
- who might provide important information to a prescribing
physician; however it is common for a child to move between
placements without the requisite records, leaving the foster
parent also unaware of the child's medical history.
DHCS and CDSS have drafted, but not finalized, a report
Guidelines for the Use of Psychotropic Medication with Children
and Youth in Foster Care, which states that "the use of
psychotropic medication for children and youth is considered a
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<8> See also 25 U.S.C. § 1903(4)-(5); Welf. and Inst. Code, §§
224.1(a) and (e) and 224.3.
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non-routine intervention, used under specified circumstances and
as only one strategy within a larger, more comprehensive
treatment plan to provide for that child's safety and
well-being."
The JV 220 form offers little opportunity for input from the
community of representatives and caregivers involved with the
youth except to offer a short window of opportunity to formally
object. Furthermore, the form does not include information
related to baseline or ongoing screening, it does not require
consideration of alternative treatments (though it provides a
field inquiring about them), nor does it offer substantive
opportunities for relevant parties to weigh in with important
information that may be worthy of consideration by the court.
Currently, CDSS and DHCS, are collaborating on the Quality
Improvement Project: Improving the Use of Psychotropic
Medication among Children and Youth in Foster Care which is
intended to improve oversight and monitoring of psychotropic
medication use and to develop data tools to identify "quality
concerns" described as overutilization of medication,
inappropriate prescribing, gaps of service including
insufficient monitoring or not basing decisions on evidence
based care. Together, DHCS and CDSS hold quarterly and monthly
meetings with various stakeholders to negotiate the parameters
of the data for use in agreed-upon indicators. For this purpose,
foster care data from the Child Welfare System/Case Management
System is matched with a dataset containing fee-for-service and
Medi-Cal managed care pharmacy paid claim records for
psychotropic medication for children in foster care to identify
prescribing patterns.
Related legislation:
SB 238 (Mitchell, 2015) requires specified certification and
training programs for group home administrators, foster parents,
child welfare social workers, dependency court judges and court
appointed council to include training on psychotropic
medication, trauma, and behavioral health, as specified, for
children receiving child welfare services. This bill requires
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the Judicial Council to update court forms pertaining to the
authorization of psychotropic medication, and requires CDSS to
develop an individualized monthly report, a form to share
information and an alert system, used by county child welfare
agencies, regarding the administration of psychotropic
medication for a foster youth.
SB 484 (Beall, 2015) requires the CDSS to publish and make
available to interested persons specified information regarding
the administration of psychotropic medication in residential
facilities serving dependent children. Additionally, it requires
CDSS to inspect facilities at least once per year, as specified,
if the facility is determined to have a higher than average rate
of psychotropic medication authorization rate for children
residing in the facility and to monitor corrective action plans,
as specified.
SB 319 (Beall, 2015) expands the duties of the foster care
public health nurse to include monitoring and oversight of the
administration of psychotropic medication to foster children, as
specified. It also requires counties to provide child welfare
public health nursing services by contracting with the community
child health and disability prevention program established by
the county.
COMMENTS
This bill has considerable overlap with SB 238 (Mitchell) which
would enact specified changes to the court authorization process
also referenced in this bill. Staff notes that this bill
provides more specificity regarding changes to the court
authorization process while the direction of SB 238 is to
provide general direction to the Judicial Council. Should both
bills pass this committee, staff recommends the authors and
sponsors of the two bills work to eliminate apparent conflicts
between the two bills.
Staff notes that, as currently drafted, this bill applies a
"clear and convincing" evidentiary standard to numerous court
findings that may have the practical effect of preventing the
court from authorizing psychotropic medications, regardless of
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the needs of the child. Staff recommends the following
amendments.
POSITIONS
Support:
Advokids
AFSCME
Alameda County Board of Supervisors
Alameda County Foster Youth Alliance
California Court Appointed Special Advocates (CASA)
California Youth Connection
Children's Advocacy Institute
Children's Partnership
County Welfare Directors Association of California
Dependency Legal Group of San Diego
East Bay Children's Law Offices
East Bay Community Law Center
First Focus Campaign for Children
Humboldt County Transition Age You Collaboration
Legal Advocates for Children and Youth
Peers Envisioning and Engaging in Recovery Services
Youth Law Center
10 individuals
Oppose:
None.
Amendments Mock-up for 2015-2016 SB-253 (Monning (S))
*********Amendments are in BOLD*********
Mock-up based on Version Number 98 - Amended Senate 3/23/15
The people of the State of California do enact as follows:
SECTION 1. Section 369.5 of the Welfare and Institutions Code is
amended to read:
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369.5. (a) If a child is adjudged a dependent child of the court
under Section 300 and the child has been removed from the
physical custody of the parent under Section 361, only a
juvenile court judicial officer shall have authority to make
orders regarding the administration of psychotropic medications
for that child. The juvenile court may issue a specific order
delegating this authority to a parent upon making findings on
the record that the parent poses no danger to the child and has
the capacity to authorize psychotropic medications. Court
authorization for the administration of psychotropic medication
shall be based on a request from a physician, indicating the
reasons for the request, a description of the child's diagnosis
and behavior, the expected results of the medication, and a
description of any side effects of the medication. On or before
July 1, 2016, the Judicial Council shall adopt rules of court
and develop appropriate forms for implementation of this
section. Whenever the court authorizes the administration of a
psychotropic medication, it shall ensure that the administration
of the psychotropic medication is only one part of a
comprehensive treatment plan for the child that shall include
and specify the psychosocial services the child will receive in
addition to any authorized medication.
(b) (1) An order authorizing the administration of psychotropic
medications pursuant to this section shall only be granted on
clear and convincing evidence that administration of the
medication is in the best interest of the child based on a
determination that the anticipated benefits of the psychotropic
medication outweigh the short- and long-term risks associated
with the medications.
(2) An order authorizing the administration of psychotropic
medications pursuant to this section shall only be granted if
the court determines the following:
(A) The medication is not being used as punishment, for the
convenience of staff, as a substitute for other, less invasive
treatments, or in quantities or dosages that interfere with the
child's treatment program.
(B) If the child is 12 years of age or older, the child, after
being advised of alternative treatments and informed of the
benefits and risks of the medication, understands his or her
right to refuse the medication, and has given his or her written
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informed consent.
The court is provided documentation confirming the child's
caregiver has been informed, and the child has been informed in
an age and developmentally appropriate manner, about the
recommended medications, the anticipated benefits, the nature,
degree, duration, and probability of side effects and
significant risks commonly known by the medical profession, of
psychosocial treatments to be considered concurrently with or as
an alternative to the medication.
(1) The documentation shall state that the child and the child's
caregiver have been asked whether either have concerns regarding
the medication, and if so, shall describe the nature of those
concerns. The documentation shall confirm that the child has
been informed of the right to request a hearing pursuant to (g).
(2) The documentation shall include the written informed consent
of a child who is 14 years of age or older, after being advised
pursuant to (B).
(C) The prescribing physician submitting the request for
psychotropic medication attests under penalty of perjury
confirms that he or she conducted a comprehensive examination of
the child based on the practice guidelines in compliance with
Section 2242 of the Business and Professions Code and which is
consistent with the Psychiatric Evaluation and Diagnosis
provisions included in the Guidelines for the Use of
Psychotropic Medication with Children and Youth in Foster Care
issued by the state and which takes into account all of the
following:
(1) The child's trauma history.
(2) The child's medical records, including medication
history.
(3) Multiple sources of information including, but not
limited to, the child, the child's parents, relatives,
teacher, caregiver or caregivers, past prescribers of
psychotropic medication, or other health care providers.
(D) The prescribing physician shall also confirm the following:
(1) There are no less invasive and effective treatment
options available to meet the needs of the child.
(2) That the dosage or dosage range requested is
appropriate for the child.
(3) The short- and long-term risks associated with the use
of psychotropic medications by the child does not outweigh
the reported benefits to the child.
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(4) All appropriate lab screenings, measurements, or tests
for the child have been completed in accordance with
accepted medical guidelines.
(E) A plan is in place for regular monitoring of the child's
medication and psychosocial treatment plan, the effectiveness of
the medication and psychosocial treatment, and any potential
side effects of the medication, by the physician in consultation
with the child's caregiver, mental health care provider, and
others who have contact with the child, as appropriate.
(2) The person or entity submitting the request for
authorization of the administration of psychotropic medication
shall bear the burden of proof established in this section.
(c) A court shall not issue an order authorizing the
administration of psychotropic medications for a child unless a
second independent medical opinion is obtained from a child
psychiatrist or a psychopharmacologist if one or more of the
following circumstances exist:
(1) The request is for any class of psychotropic medication for
a child who is five years of age or younger.
(2) The request would result in the child being administered
three or more psychotropic medications concurrently.
(3) The request is for the concurrent administration of any two
drugs from the same class unless the request is for medication
tapering and replacement that is limited to no more than 30
days.
(4) The request is for a dosage that exceeds the amount
recommended for children.
(5) The request is for the administration of a psychotropic
medication that is subject to a federal Food and Drug
Administration black box warning requirement or is for the
administration of an antipsychotic medication for a use that is
not approved by the federal Food and Drug Administration for
children or adolescents.
(d) The court shall not authorize the administration of the
psychotropic medication unless the court is provided
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documentation that all of the appropriate lab screenings,
measurements, or tests for the child have been completed in
accordance with accepted medical guidelines no more than 30 days
prior to submission of the request to the court.
(e) (1) No later than 45 60 days after the authorization of a
new psychotropic medication is granted or at the next review
hearing scheduled for the child pursuant to Section 366, 366.21,
366.22, or 366.31, if scheduled no earlier than 45 days after
the authorization of a new psychotropic medication, whichever is
earlier , the court shall conduct a review hearing to determine
all of the following:
(A) Whether the child is taking the medication or medications.
(B) Whether psychosocial services and other aspects of the
child's treatment plan have been provided to the child.
(C) To what extent the symptoms for which the medication or
medications were authorized have been alleviated.
(D) What, if any, adverse effects the child has suffered.
(E) Any steps taken to address those effects.
(F) The date or dates of follow-up visits with the prescribing
physician since the medication or medications were authorized.
(G) Whether the appropriate follow-up laboratory screenings have
been performed and their findings.
(2) If based upon this review, the court determines that the
proffered benefits of the medication have not been demonstrated
or that the risks of the medication outweigh the benefits, the
court shall reconsider, modify, or revoke its authorization for
the administration of medication.
(f) (1) In counties in which the county child welfare agency
completes the request for authorization for the administration
of psychotropic medication, the agency is encouraged to complete
the request within three business days of receipt from the
physician of the information necessary to fully complete the
request.
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(2) Nothing in this subdivision is intended to change current
local practice or local court rules with respect to the
preparation and submission of requests for authorization for the
administration of psychotropic medication.
(g) Within seven court days from receipt by the court of a
completed request, the juvenile court judicial officer shall
either approve or deny in writing a request for authorization
for the administration of psychotropic medication to the child,
or shall, upon a request by the parent, the legal guardian, or
the child's attorney, or upon its own motion, set the matter for
hearing.
(h) Psychotropic medication or psychotropic drugs are those
medications administered for the purpose of affecting the
central nervous system to treat psychiatric disorders or
illnesses. These medications include, but are not limited to,
anxiolytic agents, antidepressants, mood stabilizers,
antipsychotic medications, anti-Parkinson agents, hypnotics,
medications for dementia, and psychostimulants.
(i) Nothing in this section is intended to supersede local court
rules regarding a minor's right to participate in mental health
decisions.
(j) This section shall not apply to nonminor dependents, as
defined in subdivision (v) of Section 11400.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a
local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction,
within the meaning of Section 17556 of the Government Code, or
changes the definition of a crime within the meaning of Section
6 of Article XIII B of the California
Constitution.
-- END
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