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Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to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 would authorize the treating psychiatrist, if he or she determines that there is a need, based on preserving rapport with the patient or preventing harm, 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 and would require the acting psychiatrist to examine the patient prior to the hearing.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
begin insertSection 1370 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert
(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 county jail treatment
15facility or the community-based residential treatment system
16established pursuant to Article 1 (commencing with Section 5670)
17of 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
P3 1program director that will promote the defendant’s speedy
2restoration to mental competence, or placed on outpatient status
3as specified in Section 1600.
4(ii) However, if the action against the defendant who has been
5found mentally incompetent is on a complaint charging a felony
6offense specified in Section 290, the prosecutor shall determine
7whether the defendant previously has been found mentally
8incompetent to stand trial pursuant to this chapter on a charge of
9a Section 290 offense, or whether the defendant is currently the
10subject of a pending Section 1368 proceeding
arising out of a
11charge of a Section 290 offense. If either determination is made,
12the prosecutor shall so notify the court and defendant in writing.
13After this notification, and opportunity for hearing, the court shall
14order that the defendant be delivered by the sheriff to a state
15hospital, as directed by the State Department of State Hospitals,
16or other secure treatment facility for the care and treatment of the
17mentally disordered unless the court makes specific findings on
18the record that an alternative placement would provide more
19appropriate treatment for the defendant and would not pose a
20danger to the health and safety of others.
21(iii) If the action against the defendant who has been found
22mentally incompetent is on a complaint charging a felony offense
23specified in Section 290 and the defendant has been denied bail
24pursuant to subdivision (b) of Section 12 of Article I of the
25California Constitution because the court has found, based
upon
26clear and convincing evidence, a substantial likelihood that the
27person’s release would result in great bodily harm to others, the
28court shall order that the defendant be delivered by the sheriff to
29a state hospital for the care and treatment of the mentally
30disordered, as directed by the State Department of State Hospitals,
31unless the court makes specific findings on the record that an
32alternative placement would provide more appropriate treatment
33for the defendant and would not pose a danger to the health and
34safety of others.
35(iv) The clerk of the court shall notify the Department of Justice
36in writing ofbegin delete anyend deletebegin insert aend insert finding of mental incompetence with respect
37to a defendant who is subject to clause (ii) or (iii) for inclusion in
38his or her state summary
criminal history information.
39(C) Upon the filing of a certificate of restoration to competence,
40the 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 county jail treatment facility, or the community-based
35residential treatment system based upon guidelines provided by
36the State Department of State Hospitals.
37(B) The court shall hear and determine whether the defendant
38lacks capacity to make decisions regarding the administration of
39antipsychotic medication. The court shall consider opinions in the
40reports prepared
pursuant to subdivision (a) of Section 1369, as
P5 1applicable to the issue of whether the defendant lacks capacity to
2make decisions regarding the administration of antipsychotic
3medication, and shall proceed as follows:
4(i) The court shall hear and determine whether any of the
5following is true:
6(I) The defendant lacks capacity to make decisions regarding
7antipsychotic medication, the defendant’s mental disorder requires
8medical treatment with antipsychotic medication, and, if the
9defendant’s mental disorder is not treated with antipsychotic
10medication, it is probable that serious harm to the physical or
11mental health of the patient will result. Probability of serious harm
12to the physical or mental health of the defendant requires evidence
13that the defendant is presently suffering adverse effects to his or
14her physical or mental health, or the defendant has previously
15suffered these
effects as a result of a mental disorder and his or
16her condition is substantially deteriorating. The fact that a
17defendant has a diagnosis of a mental disorder does not alone
18establish probability of serious harm to the physical or mental
19health of the defendant.
20(II) The defendant is a danger to others, in that the defendant
21has inflicted, attempted to inflict, or made a serious threat of
22inflicting substantial physical harm on another while in custody,
23or the defendant had inflicted, attempted to inflict, or made a
24serious threat of inflicting substantial physical harm on another
25that resulted in his or her being taken into custody, and the
26defendant presents, as a result of mental disorder or mental defect,
27a demonstrated danger of inflicting substantial physical harm on
28others. Demonstrated danger may be based on an assessment of
29the defendant’s present mental condition, including a consideration
30of past behavior of the defendant within
six years prior to the time
31the defendant last attempted to inflict, inflicted, or threatened to
32inflict substantial physical harm on another, and other relevant
33evidence.
34(III) The people have charged the defendant with a serious crime
35against the person or property, involuntary administration of
36antipsychotic medication is substantially likely to render the
37defendant competent to stand trial, the medication is unlikely to
38have side effects that interfere with the defendant’s ability to
39understand the nature of the criminal proceedings or to assist
40counsel in the conduct of a defense in a reasonable manner, less
P6 1intrusive treatments are unlikely to have substantially the same
2results, and antipsychotic medication is in the patient’s best medical
3interest in light of his or her medical condition.
4(ii) If the court finds any of the conditions described in clause
5(i) to be true, the
court shall issue an order authorizing involuntary
6administration of antipsychotic medication to the defendant when
7and as prescribed by the defendant’s treating psychiatrist at any
8facility housing the defendant for purposes of this chapter. The
9order shall be valid for no more than one year, pursuant to
10subparagraph (A) of paragraph (7). The court shall not order
11involuntary administration of psychotropic medication under
12subclause (III) of clause (i) unless the court has first found that the
13defendant does not meet the criteria for involuntary administration
14of psychotropic medication under subclause (I) of clause (i) and
15does not meet the criteria under subclause (II) of clause (i).
16(iii) In all cases, the treating hospital, facility, or program may
17administer medically appropriate antipsychotic medication
18prescribed by a psychiatrist in an emergency as described in
19subdivision (m) of Section 5008 of the Welfare and Institutions
20Code.
21(iv) If the court has determined that the defendant has the
22capacity to make decisions regarding antipsychotic medication,
23and if the defendant, with advice of his or her counsel, consents,
24the court order of commitment shall include confirmation that
25antipsychotic medication may be given to the defendant as
26prescribed by a treating psychiatrist pursuant to the defendant’s
27consent. The commitment order shall also indicate that, if the
28defendant withdraws consent for antipsychotic medication, after
29the treating psychiatrist complies with the provisions of
30subparagraph (C), the defendant shall be returned to court for a
31hearing in accordance with subparagraphs (C) and (D) regarding
32whether antipsychotic medication shall be administered
33involuntarily.
34(v) If the court has determined that the defendant has the
35capacity to make decisions regarding antipsychotic medication
36and if the
defendant, with advice from his or her counsel, does not
37consent, the court order for commitment shall indicate that, after
38the treating psychiatrist complies with the provisions of
39subparagraph (C), the defendant shall be returned to court for a
40hearing in accordance with subparagraphs (C) and (D) regarding
P7 1whether antipsychotic medication shall be administered
2involuntarily.
3(vi) begin deleteAny end deletebegin insertA end insertreport made pursuant to paragraph (1) of subdivision
4(b) shall include a description ofbegin delete anyend delete
antipsychotic medication
5administered to the defendant and its effects and side effects,
6including effects on the defendant’s appearance or behavior that
7would affect the defendant’s ability to understand the nature of
8the criminal proceedings or to assist counsel in the conduct of a
9defense in a reasonable manner. During the time the defendant is
10confined in a state hospital or other treatment facility or placed on
11outpatient status, either the defendant or the people may request
12that the court review any order made pursuant to this subdivision.
13The defendant, to the same extent enjoyed by other patients in the
14state hospital or other treatment facility, shall have the right to
15contact the patients’ rights advocate regarding his or her rights
16under this section.
17(C) If the defendant consented to antipsychotic medication as
18described in clause (iv) of subparagraph (B), but subsequently
19withdraws his or her consent, or, if
involuntary antipsychotic
20medication was not ordered pursuant to clause (v) of subparagraph
21(B), and the treating psychiatrist determines that antipsychotic
22medication has become medically necessary and appropriate, the
23treating psychiatrist shall make efforts to obtain informed consent
24from the defendant for antipsychotic medication. If informed
25consent is not obtained from the defendant, and the treating
26psychiatrist is of the opinion that the defendant lacks capacity to
27make decisions regarding antipsychotic medication based on the
28conditions described in subclause (I) or (II) of clause (i) of
29subparagraph (B), the treating psychiatrist shall certify whether
30the lack of capacity and any applicable conditions described above
31exist. That certification shall contain an assessment of the current
32mental status of the defendant and the opinion of the treating
33psychiatrist that involuntary antipsychotic medication has become
34medically necessary and appropriate.
35(D) (i) If the treating psychiatrist certifies that antipsychotic
36medication has become medically necessary and appropriate
37pursuant to subparagraph (C), antipsychotic medication may be
38administered to the defendant for not more than 21 days, provided,
39however, that, within 72 hours of the certification, the defendant
40is provided a medication review hearing before an administrative
P8 1law judge to be conducted at the facility where the defendant is
2receiving treatment. The treating psychiatrist shall present the case
3for the certification for involuntary treatment and the defendant
4shall be represented by an attorney or a patients’ rights advocate.
5The attorney or patients’ rights advocate shall be appointed to meet
6with the defendant no later than one day prior to the medication
7review hearing to review the defendant’s rights at the medication
8review hearing, discuss the process, answer questions or concerns
9regarding involuntary medication or the hearing, assist the
10
defendant in preparing for the hearing and advocating for his or
11her interests at the hearing, review the panel’s final determination
12following the hearing, advise the defendant of his or her right to
13judicial review of the panel’s decision, and provide the defendant
14with referral information for legal advice on the subject. The
15defendant shall also have the following rights with respect to the
16medication review hearing:
17(I) To be given timely access to the defendant’s records.
18(II) To be present at the hearing, unless the defendant waives
19that right.
20(III) To present evidence at the hearing.
21(IV) To question persons presenting evidence supporting
22involuntary medication.
23(V) To make
reasonable requests for attendance of witnesses
24on the defendant’s behalf.
25(VI) To a hearing conducted in an impartial and informal
26manner.
27(ii) If the administrative law judge determines that the defendant
28either meets the criteria specified in subclause (I) of clause (i) of
29subparagraph (B), or meets the criteria specified in subclause (II)
30of clause (i) of subparagraph (B), then antipsychotic medication
31may continue to be administered to the defendant for the 21-day
32certification period. Concurrently with the treating psychiatrist’s
33certification, the treating psychiatrist shall file a copy of the
34certification and a petition with the court for issuance of an order
35to administer antipsychotic medication beyond the 21-day
36certification period. For purposes of this subparagraph, the treating
37psychiatrist shall not be required to pay or deposit any fee for the
38filing of the
petition or other document or paper related to the
39petition.
P9 1(iii) If the administrative law judge disagrees with the
2certification, medication may not be administered involuntarily
3until the court determines that antipsychotic medication should be
4administered pursuant to this section.
5(iv) The court shall provide notice to the prosecuting attorney
6and to the attorney representing the defendant, and shall hold a
7hearing, no later than 18 days from the date of the certification, to
8determine whether antipsychotic medication should be ordered
9beyond the certification period.
10(v) If, as a result of the hearing, the court determines that
11antipsychotic medication should be administered beyond the
12certification period, the court shall issue an order authorizing the
13administration of that medication.
14(vi) The court shall render its decision on the petition and issue
15its order no later than three calendar days after the hearing and, in
16any event, no later than the expiration of the 21-day certification
17period.
18(vii) If the administrative law judge upholds the certification
19pursuant to clause (ii), the court may, for a period not to exceed
2014 days, extend the certification and continue the hearing pursuant
21to stipulation between the parties or upon a finding of good cause.
22In determining good cause, the court may review the petition filed
23with the court, the administrative law judge’s order, and any
24additional testimony needed by the court to determine if it is
25appropriate to continue medication beyond the 21-day certification
26and for a period of up to 14 days.
27(viii) The district attorney, county counsel, or
representative of
28begin delete anyend deletebegin insert aend insert facility where a defendant found incompetent to stand trial
29is committed may petition the court for an order to administer
30involuntary medication pursuant to the criteria set forth in
31subclauses (II) and (III) of clause (i) of subparagraph (B). The
32order is reviewable as provided in paragraph (7).
33(3) When the court orders that the defendant be committed to
34the State Department of State Hospitals or other public or private
35treatment facility, the court shall provide copies of the following
36documents prior to the admission of the defendant to the State
37Department of State Hospitals or other treatment facility where
38the defendant is to be committed:
39(A) The commitment
order, including a specification of the
40charges.
P10 1(B) A computation or statement setting forth the maximum term
2of commitment in accordance with subdivision (c).
3(C) A computation or statement setting forth the amount of
4credit for time served, if any, to be deducted from the maximum
5term of commitment.
6(D) State summary criminal history information.
7(E) begin deleteAny arrest end deletebegin insertArrest end insertreports prepared by the police department
8or other law enforcement agency.
9(F) begin deleteAny court-ordered end deletebegin insertCourt-ordered
end insertpsychiatric examination
10or evaluation reports.
11(G) The community program director’s placement
12recommendation report.
13(H) Records ofbegin delete anyend deletebegin insert aend insert finding of mental incompetence pursuant
14to this chapter arising out of a complaint charging a felony offense
15specified in Section 290 orbegin delete anyend deletebegin insert aend insert
pending Section 1368 proceeding
16arising out of a charge of a Section 290 offense.
17(I) begin deleteAny medical end deletebegin insertMedical end insertrecords.
18(4) When the defendant is committed to a treatment facility
19pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
20court makes the findings specified in clause (ii) or (iii) of
21subparagraph (B) of paragraph (1) to assign the defendant to a
22treatment facility other than a state hospital or other secure
23treatment facility, the court shall order that notice be given to the
24appropriate law enforcement agency or agencies having local
25jurisdiction at the site of the placement facility of any finding of
26mental incompetence pursuant to this chapter arising
out of a
27charge of a Section 290 offense.
28(5) When directing that the defendant be confined in a state
29hospital pursuant to this subdivision, the court shall commit the
30patient to the State Department of State Hospitals.
31(6) (A) If the defendant is committed or transferred to the State
32Department of State Hospitals pursuant to this section, the court
33may, upon receiving the written recommendation of the medical
34director of the state hospital and the community program director
35that the defendant be transferred to a public or private treatment
36facility approved by the community program director, order the
37defendant transferred to that facility. If the defendant is committed
38or transferred to a public or private treatment facility approved by
39the community program director, the court may, upon receiving
40the written recommendation of the community program
director,
P11 1transfer the defendant to the State Department of State Hospitals
2or to another public or private treatment facility approved by the
3community program director. In the event of dismissal of the
4criminal charges before the defendant recovers competence, the
5person shall be subject to the applicable provisions of the
6Lanterman-Petris-Short Act (Part 1 (commencing with Section
75000) of Division 5 of the Welfare and Institutions Code). If either
8the defendant or the prosecutor chooses to contest either kind of
9order of transfer, a petition may be filed in the court for a hearing,
10which shall be held if the court determines that sufficient grounds
11exist. At the hearing, the prosecuting attorney or the defendant
12may present evidence bearing on the order of transfer. The court
13shall use the same standards as are used in conducting probation
14revocation hearings pursuant to Section 1203.2.
15Prior to making an order for transfer under this section, the court
16shall
notify the defendant, the attorney of record for the defendant,
17the prosecuting attorney, and the community program director or
18a designee.
19(B) If the defendant is initially committed to the State
20Department of State Hospitals or secure treatment facility pursuant
21to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
22subsequently transferred to any other facility, copies of the
23documents specified in paragraph (3) shall be taken with the
24defendant to each subsequent facility to which the defendant is
25transferred. The transferring facility shall also notify the appropriate
26law enforcement agency or agencies having local jurisdiction at
27the site of the new facility that the defendant is a person subject
28to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
29(7) (A) An order by the court authorizing involuntary
30medication of the defendant
shall be valid for no more than one
31year. The court shall review the order at the time of the review of
32the initial report and the six-month progress reports pursuant to
33paragraph (1) of subdivision (b) to determine if the grounds for
34the authorization remain. In the review, the court shall consider
35the reports of the treating psychiatrist or psychiatrists and the
36defendant’s patients’ rights advocate or attorney. The court may
37require testimony from the treating psychiatristbegin delete or psychiatristsend delete
38 and the patients’ rights advocate or attorney, if necessary. The
39court may continue the order authorizing involuntary medication
P12 1for up to another six months, or vacate the order, or make any other
2appropriate order.
3(B) Within 60 days before the expiration of the one-year
4involuntary medication order, the district attorney, county counsel,
5or representative of any facility
where a defendant found
6incompetent to stand trial is committed may petition the committing
7court for a renewal, subject to the same conditions and
8requirements as in subparagraph (A). The petition shall include
9the basis for involuntary medication set forth in clause (i) of
10subparagraph (B) of paragraph (2). Notice of the petition shall be
11provided to the defendant, the defendant’s attorney, and the district
12attorney. The court shall hear and determine whether the defendant
13continues to meet the criteria set forth in clause (i) of subparagraph
14(B) of paragraph (2). The hearing on any petition to renew an order
15for involuntary medication shall be conducted prior to the
16expiration of the current order.
17(8) For purposes of subparagraph (D) of paragraph (2) and
18paragraph (7), if the treating psychiatrist determines that there is
19a need, based on preserving his or
her rapport with the patient or
20preventing harm, the treating psychiatrist may request that the
21facility medical director designate another psychiatrist to act in
22the place of the treating psychiatrist. If the medical director of the
23facility designates another psychiatrist to act pursuant to this
24paragraph, the treating psychiatrist shall brief the acting
25psychiatrist of the relevant facts of the case and the acting
26psychiatrist shall examine the patient prior to the hearing.
27(b) (1) Within 90 days of a commitment made pursuant to
28subdivision (a), the medical director of the state hospital or other
29treatment facility to which the defendant is confined shall make a
30written report to the court and the community program director
31for the county or region of commitment, or a designee, concerning
32the defendant’s progress toward recovery of mental competence
33and whether the administration of
antipsychotic medication remains
34necessary. If the defendant is on outpatient status, the outpatient
35treatment staff shall make a written report to the community
36program director concerning the defendant’s progress toward
37recovery of mental competence. Within 90 days of placement on
38outpatient status, the community program director shall report to
39the court on this matter. If the defendant has not recovered mental
40competence, but the report discloses a substantial likelihood that
P13 1the defendant will regain mental competence in the foreseeable
2future, the defendant shall remain in the state hospital or other
3treatment facility or on outpatient status. Thereafter, at six-month
4intervals or until the defendant becomes mentally competent, if
5the defendant is confined in a treatment facility, the medical
6director of the hospital or person in charge of the facility shall
7report in writing to the court and the community program director
8or a designee regarding the defendant’s progress toward recovery
9of mental
competence and whether the administration of
10antipsychotic medication remains necessary. If the defendant is
11on outpatient status, after the initial 90-day report, the outpatient
12treatment staff shall report to the community program director on
13the defendant’s progress toward recovery, and the community
14program director shall report to the court on this matter at
15six-month intervals. A copy of these reports shall be provided to
16the prosecutor and defense counsel by the court.
17(A) If the report indicates that there is no substantial likelihood
18that the defendant will regain mental competence in the foreseeable
19future, the committing court shall order the defendant to be returned
20to the court for proceedings pursuant to paragraph (2) of
21subdivision (c) no later than 10 days following receipt of the report.
22The court shall transmit a copy of its order to the community
23program director or a designee.
24(B) If the report indicates that there is no substantial likelihood
25that the defendant will regain mental competence in the foreseeable
26future, the medical director of the state hospital or other treatment
27facility to which the defendant is confined shall do both of the
28following:
29(i) Promptly notify and provide a copy of the report to the
30defense counsel and the district attorney.
31(ii) Provide a separate notification, in compliance with
32applicable privacy laws, to the committing county’s sheriff that
33transportation will be needed for the patient.
34(2) If the court has issued an order authorizing the treating
35facility to involuntarily administer antipsychotic medication to the
36defendant, the reports made pursuant to paragraph (1) concerning
37the defendant’s
progress toward regaining competency shall also
38consider the issue of involuntary medication. Each report shall
39include, but is not limited to, allbegin insert ofend insert the following:
P14 1(A) Whether or not the defendant has the capacity to make
2decisions concerning antipsychotic medication.
3(B) If the defendant lacks capacity to make decisions concerning
4antipsychotic medication, whether the defendant risks serious harm
5to his or her physical or mental health if not treated with
6antipsychotic medication.
7(C) Whether or not the defendant presents a danger to others if
8he or she is not treated with antipsychotic medication.
9(D) Whether the defendant has a mental illness
for which
10medications are the only effective treatment.
11(E) Whether there are any side effects from the medication
12currently being experienced by the defendant that would interfere
13with the defendant’s ability to collaborate with counsel.
14(F) Whether there are any effective alternatives to medication.
15(G) How quickly the medication is likely to bring the defendant
16to competency.
17(H) Whether the treatment plan includes methods other than
18medication to restore the defendant to competency.
19(I) A statement, if applicable, that no medication is likely to
20restore the defendant to competency.
21(3) After reviewing the reports, the
court shall determine whether
22or not grounds for the order authorizing involuntary administration
23of antipsychotic medication still exist and shall do one of the
24following:
25(A) If the original grounds for involuntary medication still exist,
26the order authorizing the treating facility to involuntarily administer
27antipsychotic medication to the defendant shall remain in effect.
28(B) If the original grounds for involuntary medication no longer
29exist, and there is no other basis for involuntary administration of
30antipsychotic medication, the order for the involuntary
31administration of antipsychotic medication shall be vacated.
32(C) If the original grounds for involuntary medication no longer
33exist, and the report states that there is another basis for involuntary
34administration of antipsychotic medication, the court shall
set a
35hearing within 21 days to determine whether the order for the
36involuntary administration of antipsychotic medication shall be
37vacated or whether a new order for the involuntary administration
38of antipsychotic medication shall be issued. The hearing shall
39proceed as set forth in subparagraph (B) of paragraph (2) of
40subdivision (a).
P15 1(4) Any defendant who has been committed or has been on
2outpatient status for 18 months and is still hospitalized or on
3outpatient status shall be returned to the committing court where
4a hearing shall be held pursuant to the procedures set forth in
5Section 1369. The court shall transmit a copy of its order to the
6community program director or a designee.
7(5) If it is determined by the court that no treatment for the
8defendant’s mental impairment is being conducted, the defendant
9shall be returned to the committing court. The court shall transmit
10a
copy of its order to the community program director or a
11designee.
12(6) At each review by the court specified in this subdivision,
13the court shall determine if the security level of housing and
14treatment is appropriate and may make an order in accordance
15with its determination. If the court determines that the defendant
16shall continue to be treated in the state hospital or on an outpatient
17basis, the court shall determine issues concerning administration
18of antipsychotic medication, as set forth in subparagraph (B) of
19paragraph (2) of subdivision (a).
20(c) (1) At the end of three years from the date of commitment
21or a period of commitment equal to the maximum term of
22imprisonment provided by law for the most serious offense charged
23in the information, indictment, or misdemeanor complaint, or the
24maximum term of imprisonment provided by law for a violation
25of
probation or mandatory supervision, whichever is shorter, but
26no later than 90 days prior to the expiration of the defendant’s term
27of commitment, a defendant who has not recovered mental
28competence shall be returned to the committing court. The court
29shall notify the community program director or a designee of the
30return and of any resulting court orders.
31(2) Wheneverbegin delete anyend deletebegin insert aend insert defendant is returned to the court pursuant
32to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
33subdivision and it appears to the court that the defendant is gravely
34disabled, as defined in subparagraph (B) of paragraph (1) of
35subdivision (h) of Section 5008 of the Welfare and Institutions
36Code, the court shall order the conservatorship investigator of the
37county of
commitment of the defendant to initiate conservatorship
38proceedings for the defendant pursuant to Chapter 3 (commencing
39with Section 5350) of Part 1 of Division 5 of the Welfare and
40Institutions Code.begin delete Any hearingsend deletebegin insert
Hearingsend insert required in the
P16 1conservatorship proceedings shall be held in the superior court in
2the county that ordered the commitment. The court shall transmit
3a copy of the order directing initiation of conservatorship
4proceedings to the community program director or a designee, the
5sheriff and the district attorney of the county in which criminal
6charges are pending, and the defendant’s counsel of record. The
7court shall notify the community program director or a designee,
8the sheriff and district attorney of the county in which criminal
9charges are pending, and the defendant’s counsel of record of the
10outcome of the conservatorship proceedings.
11(3) If a change in placement is proposed for a defendant who
12is committed pursuant to subparagraph (B) of paragraph (1) of
13subdivision (h) of Section 5008 of the Welfare and Institutions
14Code, the court shall provide notice and an opportunity to be heard
15with
respect to the proposed placement of the defendant to the
16sheriff and the district attorney of the county in which the criminal
17charges or revocation proceedings are pending.
18(4) If the defendant is confined in a treatment facility, a copy
19of any report to the committing court regarding the defendant’s
20progress toward recovery of mental competence shall be provided
21by the committing court to the prosecutor and to the defense
22counsel.
23(d) With the exception of proceedings alleging a violation of
24mandatory supervision, the criminal action remains subject to
25dismissal pursuant to Section 1385. If the criminal action is
26dismissed, the court shall transmit a copy of the order of dismissal
27to the community program director or a designee. In a proceeding
28alleging a violation of mandatory supervision, if the person is not
29placed under a conservatorship as described in paragraph (2) of
30
subdivision (c), or if a conservatorship is terminated, the court
31shall reinstate mandatory supervision and may modify the terms
32and conditions of supervision to include appropriate mental health
33treatment or refer the matter to a local mental health court, reentry
34court, or other collaborative justice court available for improving
35the mental health of the defendant.
36(e) If the criminal action against the defendant is dismissed, the
37defendant shall be released frombegin delete anyend delete commitment ordered under
38this section, but without prejudice to the initiation of any
39proceedings that may be appropriate under the
P17 1Lanterman-Petris-Short Act (Part 1 (commencing with Section
25000) of Division 5 of the Welfare and Institutions Code).
3(f) As used in this chapter, “community program director” means
4the person, agency,
or entity designated by the State Department
5of State Hospitals pursuant to Section 1605 of this code and Section
64360 of the Welfare and Institutions Code.
7(g) For the purpose of this section, “secure treatment facility”
8shall not include, except for state mental hospitals, state
9developmental centers, and correctional treatment facilities, any
10facility licensed pursuant to Chapter 2 (commencing with Section
111250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
123.2 (commencing with Section 1569) of, Division 2 of the Health
13and Safety Code, or any community board and care facility.
14(h) Nothing in this section shall preclude a defendant from filing
15a petition for habeas corpus to challenge the continuing validity
16of an order authorizing a treatment facility or outpatient program
17to involuntarily administer antipsychotic medication to a person
18being treated as
incompetent to stand trial.
Section 1370 of the Penal Code is amended to
20read:
(a) (1) (A) If the defendant is found mentally
22competent, the criminal process shall resume, the trial on the
23offense charged or hearing on the alleged violation shall proceed,
24and judgment may be pronounced.
25(B) If the defendant is found mentally incompetent, the trial,
26the hearing on the alleged violation, or the judgment shall be
27suspended until the person becomes mentally competent.
28(i) In the meantime, the court shall order that the mentally
29incompetent defendant be delivered by the sheriff to a state hospital
30for the care and treatment of the mentally disordered, as directed
31by the
State Department of State Hospitals, or to any other available
32public or private treatment facility, including a local county jail
33treatment facility or the community-based residential treatment
34system established pursuant to Article 1 (commencing with Section
355670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
36Institutions Code if the facility has a secured perimeter or a locked
37and controlled treatment facility, approved by the community
38program director that will promote the defendant’s speedy
39restoration to mental competence, or placed on outpatient status
40as specified in Section 1600.
P18 1(ii) However, if the action against the defendant who has been
2found mentally incompetent is on a complaint charging a felony
3offense specified in Section 290, the prosecutor shall determine
4whether the defendant previously has been found
mentally
5incompetent to stand trial pursuant to this chapter on a charge of
6a Section 290 offense, or whether the defendant is currently the
7subject of a pending Section 1368 proceeding arising out of a
8charge of a Section 290 offense. If either determination is made,
9the prosecutor shall so notify the court and defendant in writing.
10After this notification, and opportunity for hearing, the court shall
11order that the defendant be delivered by the sheriff to a state
12hospital, as directed by the State Department of State Hospitals,
13or other secure treatment facility for the care and treatment of the
14mentally disordered unless the court makes specific findings on
15the record that an alternative placement would provide more
16appropriate treatment for the defendant and would not pose a
17danger to the health and safety of others.
18(iii) If the
action against the defendant who has been found
19mentally incompetent is on a complaint charging a felony offense
20specified in Section 290 and the defendant has been denied bail
21pursuant to subdivision (b) of Section 12 of Article I of the
22California Constitution because the court has found, based upon
23clear and convincing evidence, a substantial likelihood that the
24person’s release would result in great bodily harm to others, the
25court shall order that the defendant be delivered by the sheriff to
26a state hospital for the care and treatment of the mentally
27disordered, as directed by the State Department of State Hospitals,
28unless the court makes specific findings on the record that an
29alternative placement would provide more appropriate treatment
30for the defendant and would not pose a danger to the health and
31safety of others.
32(iv) The
clerk of the court shall notify the Department of Justice
33in writing of a finding of mental incompetence with respect to a
34defendant who is subject to clause (ii) or (iii) for inclusion in his
35or her state summary criminal history information.
36(C) Upon the filing of a certificate of restoration to competence,
37the court shall order that the defendant be returned to court in
38accordance with Section 1372. The court shall transmit a copy of
39its order to the community program director or a designee.
P19 1(D) A defendant charged with a violent felony may not be
2delivered to a state hospital or treatment facility pursuant to this
3subdivision unless the state hospital or treatment facility has a
4secured perimeter or a locked and controlled treatment facility,
5and the judge determines that the public
safety will be protected.
6(E) For purposes of this paragraph, “violent felony” means an
7offense specified in subdivision (c) of Section 667.5.
8(F) A defendant charged with a violent felony may be placed
9on outpatient status, as specified in Section 1600, only if the court
10finds that the placement will not pose a danger to the health or
11safety of others. If the court places a defendant charged with a
12violent felony on outpatient status, as specified in Section 1600,
13the court shall serve copies of the placement order on defense
14counsel, the sheriff in the county where the defendant will be
15placed, and the district attorney for the county in which the violent
16felony charges are pending against the defendant.
17(2) Prior to
making the order directing that the defendant be
18committed to the State Department of State Hospitals or other
19treatment facility or placed on outpatient status, the court shall
20proceed as follows:
21(A) The court shall order the community program director or a
22designee to evaluate the defendant and to submit to the court within
2315 judicial days of the order a written recommendation as to
24whether the defendant should be required to undergo outpatient
25treatment, or be committed to the State Department of State
26Hospitals or to any other treatment facility. A person shall not be
27admitted to a state hospital or other treatment facility or placed on
28outpatient status under this section without having been evaluated
29by the community program director or a designee. The community
30program director or designee shall evaluate the appropriate
31placement
for the defendant between the State Department of State
32Hospitals, a local county jail treatment facility, or the
33community-based residential treatment system based upon
34guidelines provided by the State Department of State Hospitals.
35If a local county jail treatment facility is selected, the State
36Department of State Hospitals shall provide treatment at the county
37jail treatment facility and reimburse the county jail treatment
38facility for the reasonable costs of the bed during the treatment. If
39the community-based residential treatment system is selected, the
40State Department of State Hospitals shall provide reimbursement
P20 1to the community-based residential treatment system for the cost
2of treatment as negotiated with the State Department of State
3Hospitals. The six-month limitation in Section 1369.1 shall not
4apply to individuals deemed incompetent to stand trial who are
5being treated to restore
competency within a county jail treatment
6facility pursuant to this section.
7(B) The court shall hear and determine whether the defendant
8lacks capacity to make decisions regarding the administration of
9antipsychotic medication. The court shall consider opinions in the
10reports prepared pursuant to subdivision (a) of Section 1369, as
11applicable to the issue of whether the defendant lacks capacity to
12make decisions regarding the administration of antipsychotic
13medication, and shall proceed as follows:
14(i) The court shall hear and determine whether any of the
15following is true:
16(I) The defendant lacks capacity to make decisions regarding
17antipsychotic medication, the defendant’s mental disorder requires
18medical
treatment with antipsychotic medication, and, if the
19defendant’s mental disorder is not treated with antipsychotic
20medication, it is probable that serious harm to the physical or
21mental health of the patient will result. Probability of serious harm
22to the physical or mental health of the defendant requires evidence
23that the defendant is presently suffering adverse effects to his or
24her physical or mental health, or the defendant has previously
25suffered these effects as a result of a mental disorder and his or
26her condition is substantially deteriorating. The fact that a
27defendant has a diagnosis of a mental disorder does not alone
28establish probability of serious harm to the physical or mental
29health of the defendant.
30(II) The defendant is a danger to others, in that the defendant
31has inflicted, attempted to inflict, or made a serious threat
of
32inflicting substantial physical harm on another while in custody,
33or the defendant had inflicted, attempted to inflict, or made a
34serious threat of inflicting substantial physical harm on another
35that resulted in his or her being taken into custody, and the
36defendant presents, as a result of mental disorder or mental defect,
37a demonstrated danger of inflicting substantial physical harm on
38others. Demonstrated danger may be based on an assessment of
39the defendant’s present mental condition, including a consideration
40of past behavior of the defendant within six years prior to the time
P21 1the defendant last attempted to inflict, inflicted, or threatened to
2inflict substantial physical harm on another, and other relevant
3evidence.
4(III) The people have charged the defendant with a serious crime
5against the person or property, involuntary
administration of
6antipsychotic medication is substantially likely to render the
7defendant competent to stand trial, the medication is unlikely to
8have side effects that interfere with the defendant’s ability to
9understand the nature of the criminal proceedings or to assist
10counsel in the conduct of a defense in a reasonable manner, less
11intrusive treatments are unlikely to have substantially the same
12results, and antipsychotic medication is in the patient’s best medical
13interest in light of his or her medical condition.
14(ii) If the court finds any of the conditions described in clause
15(i) to be true, the court shall issue an order authorizing involuntary
16administration of antipsychotic medication to the defendant when
17and as prescribed by the defendant’s treating psychiatrist at any
18facility housing the defendant for purposes of this chapter.
The
19order shall be valid for no more than one year, pursuant to
20subparagraph (A) of paragraph (7). The court shall not order
21involuntary administration of psychotropic medication under
22subclause (III) of clause (i) unless the court has first found that the
23defendant does not meet the criteria for involuntary administration
24of psychotropic medication under subclause (I) of clause (i) and
25does not meet the criteria under subclause (II) of clause (i).
26(iii) In all cases, the treating hospital, facility, or program may
27administer medically appropriate antipsychotic medication
28prescribed by a psychiatrist in an emergency as described in
29subdivision (m) of Section 5008 of the Welfare and Institutions
30Code.
31(iv) If the court has determined that the defendant has the
32capacity to
make decisions regarding antipsychotic medication,
33and if the defendant, with advice of his or her counsel, consents,
34the court order of commitment shall include confirmation that
35antipsychotic medication may be given to the defendant as
36prescribed by a treating psychiatrist pursuant to the defendant’s
37consent. The commitment order shall also indicate that, if the
38defendant withdraws consent for antipsychotic medication, after
39the treating psychiatrist complies with the provisions of
40subparagraph (C), the defendant shall be returned to court for a
P22 1hearing in accordance with subparagraphs (C) and (D) regarding
2whether antipsychotic medication shall be administered
3involuntarily.
4(v) If the court has determined that the defendant has the
5capacity to make decisions regarding antipsychotic medication
6and if the defendant, with advice from
his or her counsel, does not
7consent, the court order for commitment shall indicate that, after
8the treating psychiatrist complies with the provisions of
9subparagraph (C), the defendant shall be returned to court for a
10hearing in accordance with subparagraphs (C) and (D) regarding
11whether antipsychotic medication shall be administered
12involuntarily.
13(vi) A report made pursuant to paragraph (1) of subdivision (b)
14shall include a description of antipsychotic medication administered
15to the defendant and its effects and side effects, including effects
16on the defendant’s appearance or behavior that would affect the
17defendant’s ability to understand the nature of the criminal
18proceedings or to assist counsel in the conduct of a defense in a
19reasonable manner. During the time the defendant is confined in
20a state hospital or other treatment
facility or placed on outpatient
21status, either the defendant or the people may request that the court
22review any order made pursuant to this subdivision. The defendant,
23to the same extent enjoyed by other patients in the state hospital
24or other treatment facility, shall have the right to contact the
25patients’ rights advocate regarding his or her rights under this
26section.
27(C) If the defendant consented to antipsychotic medication as
28described in clause (iv) of subparagraph (B), but subsequently
29withdraws his or her consent, or, if involuntary antipsychotic
30medication was not ordered pursuant to clause (v) of subparagraph
31(B), and the treating psychiatrist determines that antipsychotic
32medication has become medically necessary and appropriate, the
33treating psychiatrist shall make efforts to obtain informed consent
34from the defendant
for antipsychotic medication. If informed
35consent is not obtained from the defendant, and the treating
36psychiatrist is of the opinion that the defendant lacks capacity to
37make decisions regarding antipsychotic medication based on the
38conditions described in subclause (I) or (II) of clause (i) of
39subparagraph (B), the treating psychiatrist shall certify whether
40the lack of capacity and any applicable conditions described above
P23 1exist. That certification shall contain an assessment of the current
2mental status of the defendant and the opinion of the treating
3psychiatrist that involuntary antipsychotic medication has become
4medically necessary and appropriate.
5(D) (i) If the treating psychiatrist certifies that antipsychotic
6medication has become medically necessary and appropriate
7pursuant to subparagraph (C), antipsychotic
medication may be
8administered to the defendant for not more than 21 days, provided,
9however, that, within 72 hours of the certification, the defendant
10is provided a medication review hearing before an administrative
11law judge to be conducted at the facility where the defendant is
12receiving treatment. The treating psychiatrist shall present the case
13for the certification for involuntary treatment and the defendant
14shall be represented by an attorney or a patients’ rights advocate.
15The attorney or patients’ rights advocate shall be appointed to meet
16with the defendant no later than one day prior to the medication
17review hearing to review the defendant’s rights at the medication
18review hearing, discuss the process, answer questions or concerns
19regarding involuntary medication or the hearing, assist the
20defendant in preparing for the hearing and advocating for his or
21her interests at the hearing,
review the panel’s final determination
22following the hearing, advise the defendant of his or her right to
23judicial review of the panel’s decision, and provide the defendant
24with referral information for legal advice on the subject. The
25defendant shall also have the following rights with respect to the
26medication review hearing:
27(I) To be given timely access to the defendant’s records.
28(II) To be present at the hearing, unless the defendant waives
29that right.
30(III) To present evidence at the hearing.
31(IV) To question persons presenting evidence supporting
32involuntary medication.
33(V) To make
reasonable requests for attendance of witnesses
34on the defendant’s behalf.
35(VI) To a hearing conducted in an impartial and informal
36manner.
37(ii) If the administrative law judge determines that the defendant
38either meets the criteria specified in subclause (I) of clause (i) of
39subparagraph (B), or meets the criteria specified in subclause (II)
40of clause (i) of subparagraph (B), then antipsychotic medication
P24 1may continue to be administered to the defendant for the 21-day
2certification period. Concurrently with the treating psychiatrist’s
3certification, the treating psychiatrist shall file a copy of the
4certification and a petition with the court for issuance of an order
5to administer antipsychotic medication beyond the 21-day
6certification period. For purposes of this subparagraph,
the treating
7psychiatrist shall not be required to pay or deposit any fee for the
8filing of the petition or other document or paper related to the
9petition.
10(iii) If the administrative law judge disagrees with the
11certification, medication may not be administered involuntarily
12until the court determines that antipsychotic medication should be
13administered pursuant to this section.
14(iv) The court shall provide notice to the prosecuting attorney
15and to the attorney representing the defendant, and shall hold a
16hearing, no later than 18 days from the date of the certification, to
17determine whether antipsychotic medication should be ordered
18beyond the certification period.
19(v) If, as a result of the hearing, the court
determines that
20antipsychotic medication should be administered beyond the
21certification period, the court shall issue an order authorizing the
22administration of that medication.
23(vi) The court shall render its decision on the petition and issue
24its order no later than three calendar days after the hearing and, in
25any event, no later than the expiration of the 21-day certification
26period.
27(vii) If the administrative law judge upholds the certification
28pursuant to clause (ii), the court may, for a period not to exceed
2914 days, extend the certification and continue the hearing pursuant
30to stipulation between the parties or upon a finding of good cause.
31In determining good cause, the court may review the petition filed
32with the court, the administrative law judge’s order, and any
33additional
testimony needed by the court to determine if it is
34appropriate to continue medication beyond the 21-day certification
35and for a period of up to 14 days.
36(viii) The district attorney, county counsel, or representative of
37
a facility where a defendant found incompetent to stand trial is
38committed may petition the court for an order to administer
39involuntary medication pursuant to the criteria set forth in
P25 1subclauses (II) and (III) of clause (i) of subparagraph (B). The
2order is reviewable as provided in paragraph (7).
3(3) When the court orders that the defendant be committed to
4the State Department of State Hospitals or other public or private
5treatment facility, the court shall provide copies of the following
6documents prior to the admission of the defendant to the State
7Department of State Hospitals or other treatment facility where
8the defendant is to be committed:
9(A) The commitment order, including a specification of the
10charges.
11(B) A computation or statement setting forth the maximum term
12
of commitment in accordance with subdivision (c).
13(C) A computation or statement setting forth the amount of
14credit for time served, if any, to be deducted from the maximum
15term of commitment.
16(D) State summary criminal history information.
17(E) Arrest reports prepared by the police department or other
18law enforcement agency.
19(F) Court-ordered psychiatric examination or evaluation reports.
20(G) The community program director’s placement
21recommendation report.
22(H) Records of a finding of mental incompetence pursuant to
23
this chapter arising out of a complaint charging a felony offense
24specified in Section 290 or a pending Section 1368 proceeding
25arising out of a charge of a Section 290 offense.
26(I) Medical records.
27(4) When the defendant is committed to a treatment facility
28pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
29court makes the findings specified in clause (ii) or (iii) of
30subparagraph (B) of paragraph (1) to assign the defendant to a
31treatment facility other than a state hospital or other secure
32treatment facility, the court shall order that notice be given to the
33appropriate law enforcement agency or agencies having local
34jurisdiction at the site of the placement facility of any finding of
35mental incompetence pursuant to this chapter arising out of a
36charge
of a Section 290 offense.
37(5) When directing that the defendant be confined in a state
38hospital pursuant to this subdivision, the court shall commit the
39patient to the State Department of State Hospitals.
P26 1(6) (A) If the defendant is committed or transferred to the State
2Department of State Hospitals pursuant to this section, the court
3may, upon receiving the written recommendation of the medical
4director of the state hospital and the community program director
5that the defendant be transferred to a public or private treatment
6facility approved by the community program director, order the
7defendant transferred to that facility. If the defendant is committed
8or transferred to a public or private treatment facility approved by
9the community program director, the court
may, upon receiving
10the written recommendation of the community program director,
11transfer the defendant to the State Department of State Hospitals
12or to another public or private treatment facility approved by the
13community program director. In the event of dismissal of the
14criminal charges before the defendant recovers competence, the
15person shall be subject to the applicable provisions of the
16Lanterman-Petris-Short Act (Part 1 (commencing with Section
175000) of Division 5 of the Welfare and Institutions Code). If either
18the defendant or the prosecutor chooses to contest either kind of
19order of transfer, a petition may be filed in the court for a hearing,
20which shall be held if the court determines that sufficient grounds
21exist. At the hearing, the prosecuting attorney or the defendant
22may present evidence bearing on the order of transfer. The court
23shall use the same standards as are used in
conducting probation
24revocation hearings pursuant to Section 1203.2.
25Prior to making an order for transfer under this section, the court
26shall notify the defendant, the attorney of record for the defendant,
27the prosecuting attorney, and the community program director or
28a designee.
29(B) If the defendant is initially committed to the State
30Department of State Hospitals or secure treatment facility pursuant
31to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
32subsequently transferred to any other facility, copies of the
33documents specified in paragraph (3) shall be taken with the
34defendant to each subsequent facility to which the defendant is
35transferred. The transferring facility shall also notify the appropriate
36law enforcement agency or agencies having local jurisdiction at
37the
site of the new facility that the defendant is a person subject
38to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
39(7) (A) An order by the court authorizing involuntary
40medication of the defendant shall be valid for no more than one
P27 1year. The court shall review the order at the time of the review of
2the initial report and the six-month progress reports pursuant to
3paragraph (1) of subdivision (b) to determine if the grounds for
4the authorization remain. In the review, the court shall consider
5the reports of the treating psychiatrist or psychiatrists and the
6defendant’s patients’ rights advocate or attorney. The court may
7require testimony from the treating psychiatrist and the patients’
8rights advocate or attorney, if necessary. The court may continue
9the order authorizing involuntary medication for up to another six
10months,
or vacate the order, or make any other appropriate order.
11(B) Within 60 days before the expiration of the one-year
12involuntary medication order, the district attorney, county counsel,
13or representative of any facility where a defendant found
14incompetent to stand trial is committed may petition the committing
15court for a renewal, subject to the same conditions and
16requirements as in subparagraph (A). The petition shall include
17the basis for involuntary medication set forth in clause (i) of
18subparagraph (B) of paragraph (2). Notice of the petition shall be
19provided to the defendant, the defendant’s attorney, and the district
20attorney. The court shall hear and determine whether the defendant
21continues to meet the criteria set forth in clause (i) of subparagraph
22(B) of paragraph (2). The hearing on any petition to renew an order
23for involuntary
medication shall be conducted prior to the
24expiration of the current order.
25(8) For purposes of subparagraph (D) of paragraph (2) and
26paragraph (7), if the treating psychiatrist determines that there is
27a need, based on preserving his or her rapport with the patient or
28preventing harm, the treating psychiatrist may request that the
29facility medical director designate another psychiatrist to act in
30the place of the treating psychiatrist. If the medical director of the
31facility designates another psychiatrist to act pursuant to this
32paragraph, the treating psychiatrist shall brief the acting psychiatrist
33of the relevant facts of the case and the acting psychiatrist shall
34examine the patient prior to the hearing.
35(b) (1) Within 90 days of a commitment made
pursuant to
36subdivision (a), the medical director of the state hospital or other
37treatment facility to which the defendant is confined shall make a
38written report to the court and the community program director
39for the county or region of commitment, or a designee, concerning
40the defendant’s progress toward recovery of mental competence
P28 1and whether the administration of antipsychotic medication remains
2necessary. If the defendant is on outpatient status, the outpatient
3treatment staff shall make a written report to the community
4program director concerning the defendant’s progress toward
5recovery of mental competence. Within 90 days of placement on
6outpatient status, the community program director shall report to
7the court on this matter. If the defendant has not recovered mental
8competence, but the report discloses a substantial likelihood that
9the defendant will regain mental competence in the
foreseeable
10future, the defendant shall remain in the state hospital or other
11treatment facility or on outpatient status. Thereafter, at six-month
12intervals or until the defendant becomes mentally competent, if
13the defendant is confined in a treatment facility, the medical
14director of the hospital or person in charge of the facility shall
15report in writing to the court and the community program director
16or a designee regarding the defendant’s progress toward recovery
17of mental competence and whether the administration of
18antipsychotic medication remains necessary. If the defendant is
19on outpatient status, after the initial 90-day report, the outpatient
20treatment staff shall report to the community program director on
21the defendant’s progress toward recovery, and the community
22program director shall report to the court on this matter at
23six-month intervals. A copy of these reports shall be provided
to
24the prosecutor and defense counsel by the court.
25(A) If the report indicates that there is no substantial likelihood
26that the defendant will regain mental competence in the foreseeable
27future, the committing court shall order the defendant to be returned
28to the court for proceedings pursuant to paragraph (2) of
29subdivision (c) no later than 10 days following receipt of the report.
30The court shall transmit a copy of its order to the community
31program director or a designee.
32(B) If the report indicates that there is no substantial likelihood
33that the defendant will regain mental competence in the foreseeable
34future, the medical director of the state hospital or other treatment
35facility to which the defendant is confined shall do both of the
36following:
37(i) Promptly notify and provide a copy of the report to the
38defense counsel and the district attorney.
P29 1(ii) Provide a separate notification, in compliance with
2applicable privacy laws, to the committing county’s sheriff that
3transportation will be needed for the patient.
4(2) If the court has issued an order authorizing the treating
5facility to involuntarily administer antipsychotic medication to the
6defendant, the reports made pursuant to paragraph (1) concerning
7the defendant’s progress toward regaining competency shall also
8consider the issue of involuntary medication. Each report shall
9include, but is not limited to, all of the following:
10(A) Whether or not
the defendant has the capacity to make
11decisions concerning antipsychotic medication.
12(B) If the defendant lacks capacity to make decisions concerning
13antipsychotic medication, whether the defendant risks serious harm
14to his or her physical or mental health if not treated with
15antipsychotic medication.
16(C) Whether or not the defendant presents a danger to others if
17he or she is not treated with antipsychotic medication.
18(D) Whether the defendant has a mental illness for which
19medications are the only effective treatment.
20(E) Whether there are any side effects from the medication
21currently being experienced by the defendant that would interfere
22with the
defendant’s ability to collaborate with counsel.
23(F) Whether there are any effective alternatives to medication.
24(G) How quickly the medication is likely to bring the defendant
25to competency.
26(H) Whether the treatment plan includes methods other than
27medication to restore the defendant to competency.
28(I) A statement, if applicable, that no medication is likely to
29restore the defendant to competency.
30(3) After reviewing the reports, the court shall determine whether
31or not grounds for the order authorizing involuntary administration
32of antipsychotic medication still exist and shall do one of the
33following:
34(A) If the original grounds for involuntary medication still exist,
35the order authorizing the treating facility to involuntarily administer
36antipsychotic medication to the defendant shall remain in effect.
37(B) If the original grounds for involuntary medication no longer
38exist, and there is no other basis for involuntary administration of
39antipsychotic medication, the order for the involuntary
40administration of antipsychotic medication shall be vacated.
P30 1(C) If the original grounds for involuntary medication no longer
2exist, and the report states that there is another basis for involuntary
3administration of antipsychotic medication, the court shall set a
4hearing within 21 days to determine whether the order for the
5involuntary
administration of antipsychotic medication shall be
6vacated or whether a new order for the involuntary administration
7of antipsychotic medication shall be issued. The hearing shall
8proceed as set forth in subparagraph (B) of paragraph (2) of
9subdivision (a).
10(4) A defendant who has been committed or has been on
11outpatient status for 18 months and is still hospitalized or on
12outpatient status shall be returned to the committing court where
13a hearing shall be held pursuant to the procedures set forth in
14Section 1369. The court shall transmit a copy of its order to the
15community program director or a designee.
16(5) If it is determined by the court that no treatment for the
17defendant’s mental impairment is being conducted, the defendant
18shall be returned to the committing court. The
court shall transmit
19a copy of its order to the community program director or a
20designee.
21(6) At each review by the court specified in this subdivision,
22the court shall determine if the security level of housing and
23treatment is appropriate and may make an order in accordance
24with its determination. If the court determines that the defendant
25
shall continue to be treated in the state hospital or on an outpatient
26basis, the court shall determine issues concerning administration
27of antipsychotic medication, as set forth in subparagraph (B) of
28paragraph (2) of subdivision (a).
29(c) (1) At the end of three years from the date of commitment
30or a period of commitment equal to the maximum term of
31imprisonment provided by law for the most serious offense charged
32 in the information, indictment, or misdemeanor complaint, or the
33maximum term of imprisonment provided by law for a violation
34of probation or mandatory supervision, whichever is shorter, but
35no later than 90 days prior to the expiration of the defendant’s term
36of commitment, a defendant who has not recovered mental
37competence shall be returned to the committing court. The court
38shall notify
the community program director or a designee of the
39return and of any resulting court orders.
P31 1(2) Whenever a defendant is returned to the court pursuant to
2paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
3subdivision and it appears to the court that the defendant is gravely
4disabled, as defined in subparagraph (B) of paragraph (1) of
5subdivision (h) of Section 5008 of the Welfare and Institutions
6Code, the court shall order the conservatorship investigator of the
7county of commitment of the defendant to initiate conservatorship
8proceedings for the defendant pursuant to Chapter 3 (commencing
9with Section 5350) of Part 1 of Division 5 of the Welfare and
10Institutions Code. Hearings required in the conservatorship
11proceedings shall be held in the superior court in the county that
12ordered the commitment. The court shall transmit a
copy of the
13order directing initiation of conservatorship proceedings to the
14community program director or a designee, the sheriff and the
15district attorney of the county in which criminal charges are
16pending, and the defendant’s counsel of record. The court shall
17notify the community program director or a designee, the sheriff
18and district attorney of the county in which criminal charges are
19pending, and the defendant’s counsel of record of the outcome of
20the conservatorship proceedings.
21(3) If a change in placement is proposed for a defendant who
22is committed pursuant to subparagraph (B) of paragraph (1) of
23subdivision (h) of Section 5008 of the Welfare and Institutions
24Code, the court shall provide notice and an opportunity to be heard
25with respect to the proposed placement of the defendant to the
26sheriff and the district attorney
of the county in which the criminal
27charges or revocation proceedings are pending.
28(4) If the defendant is confined in a treatment facility, a copy
29of any report to the committing court regarding the defendant’s
30progress toward recovery of mental competence shall be provided
31by the committing court to the prosecutor and to the defense
32counsel.
33(d) With the exception of proceedings alleging a violation of
34mandatory supervision, the criminal action remains subject to
35dismissal pursuant to Section 1385. If the criminal action is
36dismissed, the court shall transmit a copy of the order of dismissal
37to the community program director or a designee. In a proceeding
38alleging a violation of mandatory supervision, if the person is not
39placed under a conservatorship as described in
paragraph (2) of
40
subdivision (c), or if a conservatorship is terminated, the court
P32 1shall reinstate mandatory supervision and may modify the terms
2and conditions of supervision to include appropriate mental health
3treatment or refer the matter to a local mental health court, reentry
4court, or other collaborative justice court available for improving
5the mental health of the defendant.
6(e) If the criminal action against the defendant is dismissed, the
7defendant shall be released from commitment ordered under this
8section, but without prejudice to the initiation of any proceedings
9that may be appropriate under the Lanterman-Petris-Short Act
10(Part 1 (commencing with Section 5000) of Division 5 of the
11Welfare and Institutions Code).
12(f) As used in this chapter, “community program director”
means
13the person, agency, or entity designated by the State Department
14of State Hospitals pursuant to Section 1605 of this code and Section
154360 of the Welfare and Institutions Code.
16(g) For the purpose of this section, “secure treatment facility”
17shall not include, except for state mental hospitals, state
18developmental centers, and correctional treatment facilities, any
19facility licensed pursuant to Chapter 2 (commencing with Section
201250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
213.2 (commencing with Section 1569) of, Division 2 of the Health
22and Safety Code, or any community board and care facility.
23(h) Nothing in this section shall preclude a defendant from filing
24a petition for habeas corpus to challenge the continuing validity
25of an order authorizing a
treatment facility or outpatient program
26to involuntarily administer antipsychotic medication to a person
27being treated as incompetent to stand trial.
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