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.
-- END -
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