BILL ANALYSIS                                                                                                                                                                                                    Ó



           SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 453        Hearing Date:    April 21, 2015    
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          |Author:    |Pan                                                  |
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          |Version:   |April 6, 2015                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                      Subject:  Prisons: Involuntary Medication



          HISTORY

          Source:   Union of American Physicians and Dentists

          Prior Legislation:AB 2186 (Lowenthal) Ch. 744, Stats. 2014

          SB 1412 (Nielsen) Ch. 759, Stats. 2014
          AB 2625 (Achadjian) Ch. 742, Stats. 2013
          AB 1907 (Lowenthal)  Ch. 814, Stats. 2012
          AB 366 (Allen)  Ch. 654, Stats. 2011
          SB 1794 (Perata)  Ch. 486, Stats. 2004
          Support:  American Federation of State, County and Municipal  
                    Employees

          Opposition:Disability Rights California; Legal Services for  
                    Prisoners with Children

                                                


          PURPOSE

          The purpose of this bill is to 1) provide that where the  
          treating psychiatrist of a person who is incompetent to stand  
          trial concludes, based on the need to maintain the  
          doctor-patient relationship, prevent harm or "other factors,"  







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          that another psychiatrist should be designated to seek an order  
          for involuntary medication, the facility director may make such  
          a designation; and 2) require the treating psychiatrist to brief  
          the designated psychiatrist about the case.

          Existing law states that a person cannot be tried or adjudged to  
          punishment while he or she is mentally incompetent (IST -  
          incompetent to stand trial).  (Pen. Code § 1367, subd. (a).)

          Existing law provides that a defendant is incompetent to stand  
          trial where he or she has a mental disorder or developmental  
          disability that renders him or her unable to understand the  
          nature of the criminal proceedings or assist counsel in his or  
          her defense.  (Pen. Code § 1367, subd. (a).)

          Existing law states that if the court has a doubt as to whether  
          or not a defendant is IST, the court shall state that doubt on  
          the record and shall seek defense counsel's opinion as to the  
          defendant's competence.  (Pen. Code § 1368, subd. (a).)  The  
          matter then proceeds as follows:



                 The court shall appoint a psychiatrist or psychologist  
               to examine the defendant. 

                 If the defendant is not seeking a finding of mental  
               incompetence, the court shall appoint two psychiatrists or  
               psychologists.

                 The examining expert shall evaluate the nature of the  
               defendant's mental disorder; his or her ability to  
               understand the proceedings or assist counsel in the conduct  
               of a defense; and whether or not treatment with medications  
               is medically appropriate and likely to restore the  
               defendant to competency.

                 The counsel for the defendant shall offer evidence in  
               support of the allegation of mental incompetence.

                 The prosecution shall present its case regarding the  
               issue of the defendant's present mental competence.  

                 Each party may present rebutting testimony, unless the  








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               court, for good reason in furtherance of justice, also  
               permits other evidence in support of the original  
               contention.  (Pen. Code § 1369.)

          Existing law states that if the defendant is found mentally  
          competent, the criminal process shall resume.  (Pen. Code §  
          1370, subd. (a)(1)(A).)

          Existing law states that if the defendant is found IST, the  
          matter shall be suspended until the person becomes mentally  
          competent.  (Pen. Code § 1370, subd. (a)(1)(B).)

          Existing law includes processes for incompetence hearings,  
          findings and orders concerning persons on mandatory supervision,  
          post release community supervision and parole.  (Pen. Code §  
          1367 et seq.)

          Existing law states that an incompetent defendant charged with a  
          violent felony (Pen. Code § 667.5, subd. (c)) may not be  
          delivered to a state hospital or treatment entity that does not  
          have a secured perimeter or a locked and controlled treatment  
          facility.  The court must determine that public safety will be  
          protected.  (Pen. Code § 1370, subd. (a)(1)(D).)

           Existing law states that prior to committing an IST defendant  
          for treatment, the court shall determine whether the defendant  
          consents to the administration of antipsychotic medications.   
          (Pen. Code § 1370, subd.  (a)(2)(B).)

                 If the defendant consents, the commitment order shall  
               confirm that medication may be given to the defendant. 

                 If the defendant does not consent to the administration  
               of medication, the court shall hear and determine whether  
               any of the following is true:

                  o         The defendant lacks capacity to make decisions  
                    regarding medication, the defendant's mental disorder  
                    requires treatment with medication, and, if the  
                    defendant's mental disorder is not so treated, it is  
                    probable that serious harm to the physical or mental  
                    health of the patient will result.  Probability of  
                    serious harm is shown by evidence that the defendant  
                    is presently suffering adverse effects to his or her  








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                    physical or mental health, or has previously suffered  
                    these effects as a result of a mental disorder and his  
                    or her condition is substantially deteriorating; 

                  o         The defendant is a danger to others, in that  
                    he or she has inflicted, attempted to inflict, or made  
                    a serious threat of inflicting substantial physical  
                    injury on another while in custody, or the defendant  
                    had inflicted, attempted to inflict, or made a serious  
                    threat of inflicting such harm on another, for which  
                    the defendant was taken into custody, and he or she  
                    presents, as a result of mental disorder or mental  
                    defect, a demonstrated danger of inflicting such harm  
                    on others.  Demonstrated danger may be based on the  
                    defendant's present mental condition, including a  
                    consideration of behavior within six years of the time  
                    the defendant attempted to inflict, inflicted, or  
                    threatened to inflict substantial physical harm on  
                    another, and other relevant evidence;

                  o         The defendant has been charged with a serious  
                    crime against a person or property; involuntary  
                    administration of anti-psychotic medication is  
                    substantially likely to render the defendant  
                    competent; the medication is unlikely to have side  
                    effects that interfere with the defendant's ability to  
                    understand the criminal proceedings or to assist  
                    counsel in the conduct of a defense; less intrusive  
                    treatments are unlikely to have substantially the same  
                    results; and anti-psychotic medication is in the  
                    patient's best medical interest in light of his or her  
                    medical condition.  (Pen. Code § 1370, subd.   
                    (a)(2)(B)(ii)(I)-(III).); or,

                  o         If the court finds any of these grounds to be  
                    true, the court shall authorize the treatment facility  
                    to involuntarily administer anti-psychotic medication  
                    to the defendant when and as prescribed by the  
                    defendant's treating psychiatrist.  (Pen. Code § 1370,  
                    subd.  (a)(2)(B)(iii).)

          Existing law includes detailed procedures for review of orders  
          for involuntary antipsychotic medication and to determine  
          whether a person committed as IST without a medication order  








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          should be medicated.  (Pen. Code § 1370, subd.  (a)-(h).)

          Existing law provides that where an IST in treatment withdraws  
          consent for administration of antipsychotic medication, or if  
          involuntary medication was not ordered upon commitment, and the  
          treating psychiatrist believes that grounds for involuntary  
          medication exist, the following shall occur:

                 The treating psychiatrist may issue a certificate for  
               administration of medication for up to 21 days, until a  
               hearing before a court can be held.

                 The IST defendant shall have the right to a medication  
               review hearing before an administrative law judge (ALJ)  
               within 72 hours.

                 If the ALJ agrees that grounds for involuntary  
               administration of medication exist, the involuntary  
               medication may continue until a court hearing on the issue  
               can be held. 

                 If the ALJ finds that grounds for involuntary  
               administration of medication have not been established,  
               medication may not be involuntarily administered until a  
               court decides the issue.  (Pen. Code § 1370, subd.  
               (a)(2)(C)-(D).)

          Existing law provides that if the ALJ upholds the certification  
          by the treating psychiatrist for involuntary medication of the  
          defendant for 21 days, the psychiatrist shall file with the  
          court a copy of the certification and a petition for an order  
          authorizing involuntary medications:  

                 The court shall provide notice to the prosecutor and  
               counsel for the defendant of the pending hearing.

                 The court shall hold the hearing within 18 days of the  
               issuance of the certification and determine if a formal  
               order for involuntary medication should be made.

                 The court shall issue its decision within three calendar  
               days, but no later than the expiration of the 21-day  
               certification period.  (Pen. Code § 1370, subd. (a)(2)(D).)









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                 The court shall hold the hearing within 18 days of the  
               issuance of the certification and determine if a formal  
               order for involuntary medication should be made.

                 The court shall issue its decision within three calendar  
               days, but no later than the expiration of the 21-day  
               certification period.  (Pen. Code § 1370, subd. (a)(2)(D).)

          Existing law requires the court, when determining if grounds  
          exist for ordering involuntary administration of antipsychotic  
          medication to an IST defendant, to consider the reports prepared  
          by the psychiatrist or psychologist who examined the defendant  
          for mental competency purposes, per se, if those reports are  
          applicable to the involuntary medication issue.  (Pen. Code §  
          1370, subd. (a)(2)(B).)

          Existing law provides that an order for involuntary medication  
          shall remain valid at any facility housing the defendant for  
          purposes of return to competency and resumption of criminal  
          proceedings, if the medication is prescribed by the defendant's  
          treating psychiatrist.

          Existing law provides that if an administrative law judge  
          upholds the 21-day certification by the treating psychiatrist  
          that antipsychotic medication has become medically necessary and  
          appropriate while the defendant is being treated, the court may  
          extend the certification and continue the hearing for no more  
          than 14 days, upon a showing of good cause or the stipulation of  
          the parties.  (Pen. Code § 1370, subd. (a)(2)(D).)

          Existing law requires the court to review the order to  
          administer involuntary medication at the time of the review of  
          the initial competency report by the medical director of the  
          treatment facility and at review of the six-month progress  
          reports.  (Pen. Code § 1370, subd. (a)(2)(B).)

          Existing law allows the district attorney, county counsel, or  
          representative of any facility where a defendant found  
          incompetent to stand trial is committed, within 60 days before  
          the expiration of the one-year involuntary medication order, to  
          petition the committing court for a renewal of the order,  
          subject to the specified conditions and requirements.

                 The petition shall include the basis for involuntary  








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               medication, as specified, and requires notice of the  
               petition to be provided to the defendant, the defendant's  
               attorney, and the district attorney.

                 The court shall hear and determine if the defendant  
               continues to meet the required criteria for involuntary  
               medication and that the hearing be conducted before the  
               expiration of the current order.  (Pen. Code § 1370, subd.  
               (a)(7)(B).)

            This bill provides that the treating psychiatrist of an IST  
            patient may request the facility director to "designate  
            another psychiatrist to act" in his or her place for the  
            purposes of determining if an order for involuntary  
            administration of antipsychotic medication should be sought.   
            The request shall be based on the need to do one of the  
            following: 

                 Maintain doctor-patients rapport;

                 Prevent harm; or

                 Other factors

          This bill requires the treating psychiatrist to "brief the  
          acting psychiatrist on the relevant facts of the case."



                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  








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          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

                  Whether a proposal erodes a measure which has  
                 contributed to reducing the prison population;
                  Whether a proposal addresses a major area of public  
                 safety or criminal activity for which there is no other  
                 reasonable, appropriate remedy;
                  Whether a proposal addresses a crime which is directly  
                 dangerous to the physical safety of others for which  
                 there is no other reasonably appropriate sanction; 
                  Whether a proposal corrects a constitutional problem or  
                 legislative drafting error; and
                  Whether a proposal proposes penalties which are  
                 proportionate, and cannot be achieved through any other  
                 reasonably appropriate remedy.


          









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          COMMENTS

          1.Need for This Bill

          Under current law, a defendant must be competent to stand trial.  
           If the defendant is not competent, they may be placed on  
          antipsychotic medication, if certain standards met and findings  
          made.  The treating physician must first attempt to obtain  
          consent from the defendant.  If these efforts fail, and it is  
          deemed medically necessary and appropriate, the treating  
          physician can seek a judicial order for involuntary medication.   
          A hearing is held in which the treating psychiatrist certifies  
          and testifies that the antipsychotic drugs are necessary. If the  
          judge agrees with the certification, the court issues an order  
          for involuntary administration of medication.

          Through 2013 and 2014, it became apparent that DSH psychiatrists  
          were being assaulted or seriously injured following their  
          testimony in involuntary medication hearings.  To reduce the  
          number of injuries, DSH proposed legislation that would allow a  
          non-treating psychiatrist to testify in the hearings and expand  
          the time superior courts could schedule a hearing.  Last year,  
          the Governor's Office convened a workgroup to propose changes to  
          the IST process, thus postponing the proposal to allow  
          non-treating psychiatrists to testify in an involuntary  
          medication hearing.

          2.Legislation concerning Persons who are Incompetent to Stand  
            Trial

          Due process is required in committing persons to state hospitals  
          and administering involuntary medication.  The United States  
          Supreme Court has set requirements and standards for involuntary  
          administration of medication to IST patients.  Further, the  
          Department of State Hospital has only recently been released  
          from a federal court consent judgment concerning adequate  
          treatment of patients.   









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          Over the last 10 years, numerous measures have been enacted  
          concerning defendants and supervised persons who are incompetent  
          to stand trial or face punishment.  The governing statutes are  
          extremely lengthy, layered and intricate.  The law must balance  
          the interests of the state in trying and punishing offenders,  
          protection of the rights of involuntarily committed persons and  
          administering a treatment system for persons who may be  
          dangerous. Much of the recent legislation has concerned  
          involuntary administration of medication.

          Staff members at DSH facilities have become increasingly  
          concerned about safety in recent years, as the proportion of  
          patients committed from the criminal justice system - forensic  
          patients - have risen to over 90%. It appears that this bill is  
          intended to reduce retributive acts against treating  
          psychiatrists by patients who object to involuntary  
          administration of antipsychotic medication.  The bill does so by  
          authorizing a non-treating psychiatrist to seek an involuntary  
          mediation order, reducing the friction or conflict between the  
          treating doctor and a patient who does not want to be medicated.  


          The bill, however, raises the issue of whether a designated  
          psychiatrist will know enough about a patient to act in these  
          matters?  The bill requires the treating psychiatrist to brief  
          the designated psychiatrist about the facts of the case, but the  
          bill provides no guidelines or requirements to make sure that  
          such briefings are adequate.  This raises additional issues  
          about liability in a case where some harm comes to the patient  
          from involuntarily administered medication.  Disability Rights  
          California has addressed this issue by arguing that a designated  
          psychiatrist should be required to examine the patients.

          3.Argument in Support

          The American Federation of State, County and Municipal Employees  
          argues in support:

               AFSCME, though our affiliate the Union of American  
               Physicians and Dentists (UAPD) represents physicians  
               in state service, including DSH psychiatrists.  SB 453  
               would authorize a psychiatrist designated by the  
               facility medical director to make the determinations  
               and certifications [about the necessity of  








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               antipsychotic medication].  AFSCME strongly supports  
               SB 453 because we believe it is necessary to ensure  
               the safety of DSH physicians who are often threatened  
               by individuals who are deemed mentally incompetent.   
               By authorizing designated psychiatrists to properly  
               administer medication to these defendants we can  
               ensure the safety of treating psychiatrists.

             4.   Argument in Opposition

          Disability Rights California argues in opposition:

               Existing law identifies circumstances for the  
               voluntary and involuntary administration of  
               antipsychotic medication.  If consent for medication  
               is withdrawn or if the treating physician determines  
               that medication is necessary and appropriate, the  
               treating psychiatrist must make efforts to obtain  
               consent for the medication.  If the treating  
               psychiatrist certifies that medication is necessary  
               and appropriate, antipsychotic medication may be  
               administered to the defendant for a maximum of 21  
               days, provided that the defendant has medication  
               review hearing before an administrative law judge. 

               This bill would instead authorize a psychiatrist  
                                             designated by the facility medical director to make  
               the determination and certification [of the need for  
               medication]. The bill allows the designated  
               psychiatrist to [act based on] a paper review without  
               examining the patient.  Current law ensures that the  
               [person seeking a medication order] is the treating  
               psychiatrist and thus has first-hand knowledge of the  
               patient, such that risks, benefits and alternatives  
               can be [fully] considered?and the patient can be  
               properly advised ?so that the patient can give  
               informed consent if [he or she] has the capacity to do  
               so. Unfortunately, we have seen many situations where  
               doctors make decisions without adequate knowledge  
               about a patient.  This bill will [create] more of  
               those situations.


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