Amended in Senate April 6, 2015

Senate BillNo. 453


Introduced by Senator Pan

February 25, 2015


An act to amend Section 1370 of the Penal Code, relating to prisons.

LEGISLATIVE COUNSEL’S DIGEST

SB 453, as amended, Pan. Prisons: involuntary medication.

Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendant’s speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.

Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.

This bill wouldbegin delete instead authorize a psychiatrist designated by the facility medical director to make the determination and certification as to whether antipsychotic medication is medically necessary and appropriate and to administer that medication to the defendant for up to 21 days.end deletebegin insert authorize the treating psychiatrist, if he or she determines that there is a need, based on factors such as preserving rapport with the patient, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the case.end insert

Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 1370 of the Penal Code is amended to
2read:

3

1370.  

(a) (1) (A) If the defendant is found mentally
4competent, the criminal process shall resume, the trial on the
5offense charged or hearing on the alleged violation shall proceed,
6and judgment may be pronounced.

7(B) If the defendant is found mentally incompetent, the trial,
8the hearing on the alleged violation, or the judgment shall be
9suspended until the person becomes mentally competent.

10(i) In the meantime, the court shall order that the mentally
11incompetent defendant be delivered by the sheriff to a state hospital
12for the care and treatment of the mentally disordered, as directed
13by the State Department of State Hospitals, or to any other available
14public or private treatment facility, including a local county jail
15treatment facility or the community-based residential treatment
16system established pursuant to Article 1 (commencing with Section
175670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
18Institutions Code if the facility has a secured perimeter or a locked
19and controlled treatment facility, approved by the community
20program director that will promote the defendant’s speedy
P3    1restoration to mental competence, or placed on outpatient status
2as specified in Section 1600.

3(ii) However, if the action against the defendant who has been
4found mentally incompetent is on a complaint charging a felony
5offense specified in Section 290, the prosecutor shall determine
6whether the defendant previously has been found mentally
7incompetent to stand trial pursuant to this chapter on a charge of
8a Section 290 offense, or whether the defendant is currently the
9subject of a pending Section 1368 proceeding arising out of a
10charge of a Section 290 offense. If either determination is made,
11the prosecutor shall so notify the court and defendant in writing.
12After this notification, and opportunity for hearing, the court shall
13order that the defendant be delivered by the sheriff to a state
14hospital, as directed by the State Department of State Hospitals,
15or other secure treatment facility for the care and treatment of the
16mentally disordered unless the court makes specific findings on
17the record that an alternative placement would provide more
18appropriate treatment for the defendant and would not pose a
19danger to the health and safety of others.

20(iii) If the action against the defendant who has been found
21mentally incompetent is on a complaint charging a felony offense
22specified in Section 290 and the defendant has been denied bail
23pursuant to subdivision (b) of Section 12 of Article I of the
24California Constitution because the court has found, based upon
25clear and convincing evidence, a substantial likelihood that the
26person’s release would result in great bodily harm to others, the
27court shall order that the defendant be delivered by the sheriff to
28a state hospital for the care and treatment of the mentally
29disordered, as directed by the State Department of State Hospitals,
30unless the court makes specific findings on the record that an
31alternative placement would provide more appropriate treatment
32for the defendant and would not pose a danger to the health and
33safety of others.

34(iv) The clerk of the court shall notify the Department of Justice
35in writing of a finding of mental incompetence with respect to a
36defendant who is subject to clause (ii) or (iii) for inclusion in his
37or her state summary criminal history information.

38(C) Upon the filing of a certificate of restoration to competence,
39the court shall order that the defendant be returned to court in
P4    1accordance with Section 1372. The court shall transmit a copy of
2its order to the community program director or a designee.

3(D) A defendant charged with a violent felony may not be
4delivered to a state hospital or treatment facility pursuant to this
5subdivision unless the state hospital or treatment facility has a
6secured perimeter or a locked and controlled treatment facility,
7and the judge determines that the public safety will be protected.

8(E) For purposes of this paragraph, “violent felony” means an
9offense specified in subdivision (c) of Section 667.5.

10(F) A defendant charged with a violent felony may be placed
11on outpatient status, as specified in Section 1600, only if the court
12finds that the placement will not pose a danger to the health or
13safety of others. If the court places a defendant charged with a
14violent felony on outpatient status, as specified in Section 1600,
15the court shall serve copies of the placement order on defense
16counsel, the sheriff in the county where the defendant will be
17placed, and the district attorney for the county in which the violent
18felony charges are pending against the defendant.

19(2) Prior to making the order directing that the defendant be
20committed to the State Department of State Hospitals or other
21treatment facility or placed on outpatient status, the court shall
22proceed as follows:

23(A) The court shall order the community program director or a
24designee to evaluate the defendant and to submit to the court within
2515 judicial days of the order a written recommendation as to
26whether the defendant should be required to undergo outpatient
27treatment, or be committed to the State Department of State
28Hospitals or to any other treatment facility. A person shall not be
29admitted to a state hospital or other treatment facility or placed on
30outpatient status under this section without having been evaluated
31by the community program director or a designee. The community
32program director or designee shall evaluate the appropriate
33placement for the defendant between the State Department of State
34Hospitals, a local county jail treatment facility, or the
35community-based residential treatment system based upon
36guidelines provided by the State Department of State Hospitals.
37If a local county jail treatment facility is selected, the State
38Department of State Hospitals shall provide treatment at the county
39jail treatment facility and reimburse the county jail treatment
40facility for the reasonable costs of the bed during the treatment. If
P5    1the community-based residential treatment system is selected, the
2State Department of State Hospitals shall provide reimbursement
3to the community-based residential treatment system for the cost
4of treatment as negotiated with the State Department of State
5Hospitals. The six-month limitation in Section 1369.1 shall not
6apply to individuals deemed incompetent to stand trial who are
7being treated to restore competency within a county jail treatment
8facility pursuant to this section.

9(B) The court shall hear and determine whether the defendant
10lacks capacity to make decisions regarding the administration of
11antipsychotic medication. The court shall consider opinions in the
12reports prepared pursuant to subdivision (a) of Section 1369, as
13applicable to the issue of whether the defendant lacks capacity to
14make decisions regarding the administration of antipsychotic
15medication, and shall proceed as follows:

16(i) The court shall hear and determine whether any of the
17following is true:

18(I) The defendant lacks capacity to make decisions regarding
19antipsychotic medication, the defendant’s mental disorder requires
20medical treatment with antipsychotic medication, and, if the
21defendant’s mental disorder is not treated with antipsychotic
22medication, it is probable that serious harm to the physical or
23mental health of the patient will result. Probability of serious harm
24to the physical or mental health of the defendant requires evidence
25that the defendant is presently suffering adverse effects to his or
26her physical or mental health, or the defendant has previously
27suffered these effects as a result of a mental disorder and his or
28her condition is substantially deteriorating. The fact that a
29defendant has a diagnosis of a mental disorder does not alone
30establish probability of serious harm to the physical or mental
31health of the defendant.

32(II) The defendant is a danger to others, in that the defendant
33has inflicted, attempted to inflict, or made a serious threat of
34inflicting substantial physical harm on another while in custody,
35or the defendant had inflicted, attempted to inflict, or made a
36serious threat of inflicting substantial physical harm on another
37that resulted in his or her being taken into custody, and the
38defendant presents, as a result of mental disorder or mental defect,
39a demonstrated danger of inflicting substantial physical harm on
40others. Demonstrated danger may be based on an assessment of
P6    1the defendant’s present mental condition, including a consideration
2of past behavior of the defendant within six years prior to the time
3the defendant last attempted to inflict, inflicted, or threatened to
4inflict substantial physical harm on another, and other relevant
5evidence.

6(III) The people have charged the defendant with a serious crime
7against the person or property, involuntary administration of
8antipsychotic medication is substantially likely to render the
9defendant competent to stand trial, the medication is unlikely to
10have side effects that interfere with the defendant’s ability to
11understand the nature of the criminal proceedings or to assist
12counsel in the conduct of a defense in a reasonable manner, less
13intrusive treatments are unlikely to have substantially the same
14results, and antipsychotic medication is in the patient’s best medical
15interest in light of his or her medical condition.

16(ii) If the court finds any of the conditions described in clause
17(i) to be true, the court shall issue an order authorizing involuntary
18administration of antipsychotic medication to the defendant when
19and as prescribed by the defendant’s treating psychiatrist at any
20facility housing the defendant for purposes of this chapter. The
21order shall be valid for no more than one year, pursuant to
22subparagraph (A) of paragraph (7). The court shall not order
23involuntary administration of psychotropic medication under
24subclause (III) of clause (i) unless the court has first found that the
25defendant does not meet the criteria for involuntary administration
26of psychotropic medication under subclause (I) of clause (i) and
27does not meet the criteria under subclause (II) of clause (i).

28(iii) In all cases, the treating hospital, facility, or program may
29administer medically appropriate antipsychotic medication
30prescribed by a psychiatrist in an emergency as described in
31subdivision (m) of Section 5008 of the Welfare and Institutions
32Code.

33(iv) If the court has determined that the defendant has the
34capacity to make decisions regarding antipsychotic medication,
35and if the defendant, with advice of his or her counsel, consents,
36the court order of commitment shall include confirmation that
37antipsychotic medication may be given to the defendant as
38prescribed by a treating psychiatrist pursuant to the defendant’s
39consent. The commitment order shall also indicate that, if the
40defendant withdraws consent for antipsychotic medication, after
P7    1the treating psychiatrist complies with the provisions of
2subparagraph (C), the defendant shall be returned to court for a
3hearing in accordance with subparagraphs (C) and (D) regarding
4whether antipsychotic medication shall be administered
5involuntarily.

6(v) If the court has determined that the defendant has the
7capacity to make decisions regarding antipsychotic medication
8and if the defendant, with advice from his or her counsel, does not
9consent, the court order for commitment shall indicate that, after
10the treating psychiatrist complies with the provisions of
11subparagraph (C), the defendant shall be returned to court for a
12hearing in accordance with subparagraphs (C) and (D) regarding
13whether antipsychotic medication shall be administered
14involuntarily.

15(vi) A report made pursuant to paragraph (1) of subdivision (b)
16shall include a description of antipsychotic medication administered
17to the defendant and its effects and side effects, including effects
18on the defendant’s appearance or behavior that would affect the
19defendant’s ability to understand the nature of the criminal
20proceedings or to assist counsel in the conduct of a defense in a
21reasonable manner. During the time the defendant is confined in
22a state hospital or other treatment facility or placed on outpatient
23status, either the defendant or the people may request that the court
24review any order made pursuant to this subdivision. The defendant,
25to the same extent enjoyed by other patients in the state hospital
26or other treatment facility, shall have the right to contact the
27patients’ rights advocate regarding his or her rights under this
28section.

29(C) If the defendant consented to antipsychotic medication as
30described in clause (iv) of subparagraph (B), but subsequently
31withdraws his or her consent, or, if involuntary antipsychotic
32medication was not ordered pursuant to clause (v) of subparagraph
33(B), andbegin delete aend deletebegin insert the treatingend insert psychiatristbegin delete designated by the facility’s
34medical directorend delete
determines that antipsychotic medication has
35become medically necessary and appropriate, thebegin insert treatingend insert
36 psychiatrist begin delete designated by the facility’s medical directorend delete shall make
37efforts to obtain informed consent from the defendant for
38antipsychotic medication. If informed consent is not obtained from
39the defendant, and thebegin insert treatingend insert psychiatristbegin delete designated by the
40facility’s medical directorend delete
is of the opinion that the defendant lacks
P8    1capacity to make decisions regarding antipsychotic medication
2based on the conditions described in subclause (I) or (II) of clause
3(i) of subparagraph (B), thebegin insert treatingend insert psychiatristbegin delete designated by the
4facility’s medical directorend delete
shall certify whether the lack of capacity
5and any applicable conditions described above exist. That
6certification shall contain an assessment of the current mental
7status of the defendant and the opinion of thebegin insert treatingend insert psychiatrist begin delete8 designated by the facility’s medical directorend delete that involuntary
9antipsychotic medication has become medically necessary and
10appropriate.

11(D) (i) If thebegin insert treatingend insert psychiatristbegin delete designated by the facility’s
12medical directorend delete
certifies that antipsychotic medication has become
13medically necessary and appropriate pursuant to subparagraph (C),
14antipsychotic medication may be administered to the defendant
15for not more than 21 days, provided, however, that, within 72 hours
16of the certification, the defendant is provided a medication review
17hearing before an administrative law judge to be conducted at the
18facility where the defendant is receiving treatment. Thebegin insert treatingend insert
19 psychiatristbegin delete designated by the facility’s medical directorend delete shall
20present the case for the certification for involuntary treatment and
21the defendant shall be represented by an attorney or a patients’
22rights advocate. The attorney or patients’ rights advocate shall be
23appointed to meet with the defendant no later than one day prior
24to the medication review hearing to review the defendant’s rights
25at the medication review hearing, discuss the process, answer
26questions or concerns regarding involuntary medication or the
27hearing, assist the defendant in preparing for the hearing and
28advocating for his or her interests at the hearing, review the panel’s
29final determination following the hearing, advise the defendant of
30his or her right to judicial review of the panel’s decision, and
31provide the defendant with referral information for legal advice
32on the subject. The defendant shall also have the following rights
33with respect to the medication review hearing:

34(I) To be given timely access to the defendant’s records.

35(II)  To be present at the hearing, unless the defendant waives
36that right.

37(III) To present evidence at the hearing.

38(IV) To question persons presenting evidence supporting
39involuntary medication.

P9    1(V) To make reasonable requests for attendance of witnesses
2on the defendant’s behalf.

3(VI) To a hearing conducted in an impartial and informal
4manner.

5(ii) If the administrative law judge determines that the defendant
6either meets the criteria specified in subclause (I) of clause (i) of
7subparagraph (B), or meets the criteria specified in subclause (II)
8of clause (i) of subparagraph (B), then antipsychotic medication
9may continue to be administered to the defendant for the 21-day
10certification period. Concurrently with the treating psychiatrist’s
11certification, the treating psychiatrist shall file a copy of the
12certification and a petition with the court for issuance of an order
13to administer antipsychotic medication beyond the 21-day
14certification period. For purposes of this subparagraph, the treating
15psychiatrist shall not be required to pay or deposit any fee for the
16filing of the petition or other document or paper related to the
17petition.

18(iii) If the administrative law judge disagrees with the
19certification, medication may not be administered involuntarily
20until the court determines that antipsychotic medication should be
21administered pursuant to this section.

22(iv) The court shall provide notice to the prosecuting attorney
23and to the attorney representing the defendant, and shall hold a
24hearing, no later than 18 days from the date of the certification, to
25determine whether antipsychotic medication should be ordered
26beyond the certification period.

27(v) If, as a result of the hearing, the court determines that
28antipsychotic medication should be administered beyond the
29certification period, the court shall issue an order authorizing the
30administration of that medication.

31(vi) The court shall render its decision on the petition and issue
32its order no later than three calendar days after the hearing and, in
33any event, no later than the expiration of the 21-day certification
34period.

35(vii) If the administrative law judge upholds the certification
36pursuant to clause (ii), the court may, for a period not to exceed
3714 days, extend the certification and continue the hearing pursuant
38to stipulation between the parties or upon a finding of good cause.
39In determining good cause, the court may review the petition filed
40with the court, the administrative law judge’s order, and any
P10   1additional testimony needed by the court to determine if it is
2appropriate to continue medication beyond the 21-day certification
3and for a period of up to 14 days.

4(viii) The district attorney, county counsel, or representative of
5 a facility where a defendant found incompetent to stand trial is
6committed may petition the court for an order to administer
7involuntary medication pursuant to the criteria set forth in
8subclauses (II) and (III) of clause (i) of subparagraph (B). The
9order is reviewable as provided in paragraph (7).

10(3) When the court orders that the defendant be committed to
11the State Department of State Hospitals or other public or private
12treatment facility, the court shall provide copies of the following
13documents prior to the admission of the defendant to the State
14Department of State Hospitals or other treatment facility where
15the defendant is to be committed:

16(A) The commitment order, including a specification of the
17charges.

18(B) A computation or statement setting forth the maximum term
19 of commitment in accordance with subdivision (c).

20(C) A computation or statement setting forth the amount of
21credit for time served, if any, to be deducted from the maximum
22term of commitment.

23(D) State summary criminal history information.

24(E) Arrest reports prepared by the police department or other
25law enforcement agency.

26(F) Court-ordered psychiatric examination or evaluation reports.

27(G) The community program director’s placement
28recommendation report.

29(H) Records of a finding of mental incompetence pursuant to
30 this chapter arising out of a complaint charging a felony offense
31specified in Section 290 or a pending Section 1368 proceeding
32arising out of a charge of a Section 290 offense.

33(I) Medical records.

34(4) When the defendant is committed to a treatment facility
35pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
36court makes the findings specified in clause (ii) or (iii) of
37subparagraph (B) of paragraph (1) to assign the defendant to a
38treatment facility other than a state hospital or other secure
39treatment facility, the court shall order that notice be given to the
40appropriate law enforcement agency or agencies having local
P11   1jurisdiction at the site of the placement facility of any finding of
2mental incompetence pursuant to this chapter arising out of a
3charge of a Section 290 offense.

4(5) When directing that the defendant be confined in a state
5hospital pursuant to this subdivision, the court shall commit the
6patient to the State Department of State Hospitals.

7(6) (A) If the defendant is committed or transferred to the State
8Department of State Hospitals pursuant to this section, the court
9may, upon receiving the written recommendation of the medical
10director of the state hospital and the community program director
11that the defendant be transferred to a public or private treatment
12facility approved by the community program director, order the
13defendant transferred to that facility. If the defendant is committed
14or transferred to a public or private treatment facility approved by
15the community program director, the court may, upon receiving
16the written recommendation of the community program director,
17transfer the defendant to the State Department of State Hospitals
18or to another public or private treatment facility approved by the
19community program director. In the event of dismissal of the
20criminal charges before the defendant recovers competence, the
21person shall be subject to the applicable provisions of the
22Lanterman-Petris-Short Act (Part 1 (commencing with Section
235000) of Division 5 of the Welfare and Institutions Code). If either
24the defendant or the prosecutor chooses to contest either kind of
25order of transfer, a petition may be filed in the court for a hearing,
26which shall be held if the court determines that sufficient grounds
27 exist. At the hearing, the prosecuting attorney or the defendant
28may present evidence bearing on the order of transfer. The court
29shall use the same standards as are used in conducting probation
30revocation hearings pursuant to Section 1203.2.

31Prior to making an order for transfer under this section, the court
32shall notify the defendant, the attorney of record for the defendant,
33the prosecuting attorney, and the community program director or
34a designee.

35(B) If the defendant is initially committed to the State
36Department of State Hospitals or secure treatment facility pursuant
37to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
38subsequently transferred to any other facility, copies of the
39documents specified in paragraph (3) shall be taken with the
40defendant to each subsequent facility to which the defendant is
P12   1transferred. The transferring facility shall also notify the appropriate
2law enforcement agency or agencies having local jurisdiction at
3the site of the new facility that the defendant is a person subject
4to clause (ii) or (iii) of subparagraph (B) of paragraph (1).

5(7) (A) An order by the court authorizing involuntary
6medication of the defendant shall be valid for no more than one
7year. The court shall review the order at the time of the review of
8the initial report and the six-month progress reports pursuant to
9paragraph (1) of subdivision (b) to determine if the grounds for
10the authorization remain. In the review, the court shall consider
11the reports of the treating psychiatrist or psychiatrists and the
12defendant’s patients’ rights advocate or attorney. The court may
13require testimony from thebegin insert treatingend insert psychiatristbegin delete or
14psychiatristsdesignated by the facility’s medical directorend delete
and the
15patients’ rights advocate or attorney, if necessary. The court may
16continue the order authorizing involuntary medication for up to
17another six months, or vacate the order, or make any other
18appropriate order.

19(B) Within 60 days before the expiration of the one-year
20involuntary medication order, the district attorney, county counsel,
21or representative of any facility where a defendant found
22incompetent to stand trial is committed may petition the committing
23court for a renewal, subject to the same conditions and
24requirements as in subparagraph (A). The petition shall include
25the basis for involuntary medication set forth in clause (i) of
26subparagraph (B) of paragraph (2). Notice of the petition shall be
27provided to the defendant, the defendant’s attorney, and the district
28attorney. The court shall hear and determine whether the defendant
29continues to meet the criteria set forth in clause (i) of subparagraph
30(B) of paragraph (2). The hearing on any petition to renew an order
31for involuntary medication shall be conducted prior to the
32expiration of the current order.

begin insert

33(8) If the treating psychiatrist determines that there is a need,
34based on preserving his or her rapport with the patient, to prevent
35harm, or other factors, the treating psychiatrist may request that
36the facility medical director designate another psychiatrist to act
37in the place of the treating psychiatrist for purposes of this
38subdivision. If the medical director of the facility designates
39another psychiatrist to act pursuant to this paragraph, the treating
P13   1psychiatrist shall brief the acting psychiatrist of the relevant facts
2of the case.

end insert

3(b) (1) Within 90 days of a commitment made pursuant to
4subdivision (a), the medical director of the state hospital or other
5treatment facility to which the defendant is confined shall make a
6written report to the court and the community program director
7for the county or region of commitment, or a designee, concerning
8the defendant’s progress toward recovery of mental competence
9and whether the administration of antipsychotic medication remains
10necessary. If the defendant is on outpatient status, the outpatient
11treatment staff shall make a written report to the community
12program director concerning the defendant’s progress toward
13recovery of mental competence. Within 90 days of placement on
14outpatient status, the community program director shall report to
15the court on this matter. If the defendant has not recovered mental
16competence, but the report discloses a substantial likelihood that
17the defendant will regain mental competence in the foreseeable
18future, the defendant shall remain in the state hospital or other
19treatment facility or on outpatient status. Thereafter, at six-month
20intervals or until the defendant becomes mentally competent, if
21the defendant is confined in a treatment facility, the medical
22director of the hospital or person in charge of the facility shall
23report in writing to the court and the community program director
24or a designee regarding the defendant’s progress toward recovery
25of mental competence and whether the administration of
26antipsychotic medication remains necessary. If the defendant is
27on outpatient status, after the initial 90-day report, the outpatient
28treatment staff shall report to the community program director on
29the defendant’s progress toward recovery, and the community
30program director shall report to the court on this matter at
31six-month intervals. A copy of these reports shall be provided to
32the prosecutor and defense counsel by the court.

33(A) If the report indicates that there is no substantial likelihood
34that the defendant will regain mental competence in the foreseeable
35future, the committing court shall order the defendant to be returned
36to the court for proceedings pursuant to paragraph (2) of
37subdivision (c) no later than 10 days following receipt of the report.
38The court shall transmit a copy of its order to the community
39program director or a designee.

P14   1(B) If the report indicates that there is no substantial likelihood
2that the defendant will regain mental competence in the foreseeable
3future, the medical director of the state hospital or other treatment
4facility to which the defendant is confined shall do both of the
5following:

6(i) Promptly notify and provide a copy of the report to the
7defense counsel and the district attorney.

8(ii) Provide a separate notification, in compliance with
9applicable privacy laws, to the committing county’s sheriff that
10transportation will be needed for the patient.

11(2) If the court has issued an order authorizing the treating
12facility to involuntarily administer antipsychotic medication to the
13defendant, the reports made pursuant to paragraph (1) concerning
14the defendant’s progress toward regaining competency shall also
15consider the issue of involuntary medication. Each report shall
16include, but is not limited to, all the following:

17(A) Whether or not the defendant has the capacity to make
18decisions concerning antipsychotic medication.

19(B) If the defendant lacks capacity to make decisions concerning
20antipsychotic medication, whether the defendant risks serious harm
21to his or her physical or mental health if not treated with
22antipsychotic medication.

23(C) Whether or not the defendant presents a danger to others if
24he or she is not treated with antipsychotic medication.

25(D) Whether the defendant has a mental illness for which
26medications are the only effective treatment.

27(E) Whether there are any side effects from the medication
28currently being experienced by the defendant that would interfere
29with the defendant’s ability to collaborate with counsel.

30(F) Whether there are any effective alternatives to medication.

31(G) How quickly the medication is likely to bring the defendant
32to competency.

33(H) Whether the treatment plan includes methods other than
34medication to restore the defendant to competency.

35(I) A statement, if applicable, that no medication is likely to
36restore the defendant to competency.

37(3) After reviewing the reports, the court shall determine whether
38or not grounds for the order authorizing involuntary administration
39of antipsychotic medication still exist and shall do one of the
40following:

P15   1(A) If the original grounds for involuntary medication still exist,
2the order authorizing the treating facility to involuntarily administer
3antipsychotic medication to the defendant shall remain in effect.

4(B) If the original grounds for involuntary medication no longer
5exist, and there is no other basis for involuntary administration of
6antipsychotic medication, the order for the involuntary
7administration of antipsychotic medication shall be vacated.

8(C) If the original grounds for involuntary medication no longer
9exist, and the report states that there is another basis for involuntary
10administration of antipsychotic medication, the court shall set a
11hearing within 21 days to determine whether the order for the
12involuntary administration of antipsychotic medication shall be
13vacated or whether a new order for the involuntary administration
14of antipsychotic medication shall be issued. The hearing shall
15proceed as set forth in subparagraph (B) of paragraph (2) of
16subdivision (a).

17(4) A defendant who has been committed or has been on
18outpatient status for 18 months and is still hospitalized or on
19outpatient status shall be returned to the committing court where
20a hearing shall be held pursuant to the procedures set forth in
21Section 1369. The court shall transmit a copy of its order to the
22community program director or a designee.

23(5) If it is determined by the court that no treatment for the
24defendant’s mental impairment is being conducted, the defendant
25shall be returned to the committing court. The court shall transmit
26a copy of its order to the community program director or a
27designee.

28(6) At each review by the court specified in this subdivision,
29the court shall determine if the security level of housing and
30treatment is appropriate and may make an order in accordance
31with its determination. If the court determines that the defendant
32 shall continue to be treated in the state hospital or on an outpatient
33basis, the court shall determine issues concerning administration
34of antipsychotic medication, as set forth in subparagraph (B) of
35paragraph (2) of subdivision (a).

36(c) (1) At the end of three years from the date of commitment
37or a period of commitment equal to the maximum term of
38imprisonment provided by law for the most serious offense charged
39in the information, indictment, or misdemeanor complaint, or the
40maximum term of imprisonment provided by law for a violation
P16   1of probation or mandatory supervision, whichever is shorter, but
2no later than 90 days prior to the expiration of the defendant’s term
3of commitment, a defendant who has not recovered mental
4competence shall be returned to the committing court. The court
5shall notify the community program director or a designee of the
6return and of any resulting court orders.

7(2) Whenever a defendant is returned to the court pursuant to
8paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
9subdivision and it appears to the court that the defendant is gravely
10disabled, as defined in subparagraph (B) of paragraph (1) of
11subdivision (h) of Section 5008 of the Welfare and Institutions
12Code, the court shall order the conservatorship investigator of the
13county of commitment of the defendant to initiate conservatorship
14proceedings for the defendant pursuant to Chapter 3 (commencing
15with Section 5350) of Part 1 of Division 5 of the Welfare and
16Institutions Code. Hearings required in the conservatorship
17proceedings shall be held in the superior court in the county that
18ordered the commitment. The court shall transmit a copy of the
19order directing initiation of conservatorship proceedings to the
20community program director or a designee, the sheriff and the
21district attorney of the county in which criminal charges are
22pending, and the defendant’s counsel of record. The court shall
23notify the community program director or a designee, the sheriff
24and district attorney of the county in which criminal charges are
25pending, and the defendant’s counsel of record of the outcome of
26the conservatorship proceedings.

27(3) If a change in placement is proposed for a defendant who
28is committed pursuant to subparagraph (B) of paragraph (1) of
29subdivision (h) of Section 5008 of the Welfare and Institutions
30Code, the court shall provide notice and an opportunity to be heard
31with respect to the proposed placement of the defendant to the
32sheriff and the district attorney of the county in which the criminal
33charges or revocation proceedings are pending.

34(4) If the defendant is confined in a treatment facility, a copy
35of any report to the committing court regarding the defendant’s
36progress toward recovery of mental competence shall be provided
37by the committing court to the prosecutor and to the defense
38counsel.

39(d) With the exception of proceedings alleging a violation of
40mandatory supervision, the criminal action remains subject to
P17   1dismissal pursuant to Section 1385. If the criminal action is
2dismissed, the court shall transmit a copy of the order of dismissal
3to the community program director or a designee. In a proceeding
4alleging a violation of mandatory supervision, if the person is not
5placed under a conservatorship as described in paragraph (2) of
6 subdivision (c), or if a conservatorship is terminated, the court
7shall reinstate mandatory supervision and may modify the terms
8and conditions of supervision to include appropriate mental health
9treatment or refer the matter to a local mental health court, reentry
10court, or other collaborative justice court available for improving
11the mental health of the defendant.

12(e) If the criminal action against the defendant is dismissed, the
13defendant shall be released from commitment ordered under this
14section, but without prejudice to the initiation of any proceedings
15that may be appropriate under the Lanterman-Petris-Short Act
16(Part 1 (commencing with Section 5000) of Division 5 of the
17Welfare and Institutions Code).

18(f) As used in this chapter, “community program director” means
19the person, agency, or entity designated by the State Department
20of State Hospitals pursuant to Section 1605 of this code and Section
214360 of the Welfare and Institutions Code.

22(g) For the purpose of this section, “secure treatment facility”
23shall not include, except for state mental hospitals, state
24developmental centers, and correctional treatment facilities, any
25facility licensed pursuant to Chapter 2 (commencing with Section
261250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
273.2 (commencing with Section 1569) of, Division 2 of the Health
28and Safety Code, or any community board and care facility.

29(h) Nothing in this section shall preclude a defendant from filing
30a petition for habeas corpus to challenge the continuing validity
31of an order authorizing a treatment facility or outpatient program
32to involuntarily administer antipsychotic medication to a person
33being treated as incompetent to stand trial.



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