BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 453|
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THIRD READING
Bill No: SB 453
Author: Pan (D)
Amended: 4/28/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/21/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Prisons: involuntary medication
SOURCE: Union of American Physicians and Dentists
DIGEST: This bill 1) provides 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 or prevent harm that another psychiatrist should be
designated to seek an order for involuntary medication, the
facility director may make such a designation; 2) requires the
treating psychiatrist to brief the designated psychiatrist about
the case; and 3) requires the designated prescribing
psychiatrist to examine the person as to whom the involuntary
medication order is sought.
ANALYSIS:
Existing law:
1)States that a person cannot be tried or adjudged to punishment
while he or she is mentally incompetent (IST - incompetent to
stand trial). A defendant is IST where he or she has a mental
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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).)
2)States that if the court has a doubt as to whether or not a
defendant is IST, the matter then proceeds as follows:
The court shall appoint a psychiatrist or psychologist
to examine the defendant.
If the defendant objects to an IST finding, the court
shall appoint two psychiatrists or psychologists.
The examining expert or experts shall evaluate the
defendant's mental disorder, ability to understand the
proceedings or assist counsel in his or her a defense, and
opine whether medications are medically appropriate and
likely to restore the defendant to competency. (Pen. Code
§ 1369.)
1)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 Serious harm to the physical or mental health of
the patient will result.
o The defendant is a danger to others.
o The defendant has been charged with a serious
crime; involuntary administration of anti-psychotic
medication is likely to render the defendant competent;
the medication is unlikely to interfere with the
defendant's defense and less intrusive treatments are
ineffective. (Pen. Code § 1370, subd.
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(a)(2)(B)(ii)(I)-(III).); or,
o If any of these grounds are 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).)
1)Provides that where an IST in treatment withdraws consent for
administration of 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).)
1)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
certification and determine if a formal order for
involuntary medication should be made.
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The court shall issue a decision within three calendar
days, but within the 21-day certification period. (Pen.
Code § 1370, subd. (a)(2)(D).)
1)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.
2)Provides that if an ALJ upholds the 21-day certification that
antipsychotic medication has become medically necessary, 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).)
3)Requires the court to review the order to administer
involuntary medication at the time of the review of the
initial competency report by the treating facility and at
review of the six-month progress reports. (Pen. Code § 1370,
subd. (a)(2)(B).)
4)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 specified conditions and requirements. (Pen. Code §
1370, subd. (a)(7)(B).)
This bill:
1)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-patient rapport; or
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Prevent harm;
1)Requires the treating psychiatrist to "brief the acting
psychiatrist on the relevant facts of the case."
2)Requires the designated prescribing psychiatrist to examine
the patient for whom an involuntary medication order is
sought.
Background
Defendants who are incompetent to stand trial are often
committed to the Department of State Hospitals (DSH) subject to
court order that they be involuntarily medicated with
antipsychotic medication. The grounds for involuntary
medication include that the defendant is gravely disabled -
unable to care for oneself - or a danger to self or others.
Where a defendant withdraws consent for medication, or where
treating clinicians believe that the defendant needs medication,
the treating clinician will seek an involuntary medication
order. DSH has reported that defendants who do not want to be
medicated can become upset and distrustful of a clinician who
seeks a medication order. This can lead to breakdown of the
patient-psychotherapist relationship and angry reactions by the
defendant. DSH clinicians have reported being assaulted after
testifying in medication hearings.
This bill authorizes the facility medical director to designate
another psychiatrist to seek the involuntary medication order,
stabilizing or improving the relationship between the defendant
and the clinician and likely maintaining a more calm hospital
environment. The treating clinician must brief the designated
psychiatrist. As amended in the Senate Public Safety Committee,
the bill requires the designated psychiatrist to examine the
defendant.
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The recent amendments address concerns that authorizing a
non-treating psychiatrist to seek a medication order could
result in ineffective results, harmful medication errors and
problematic side-effects. In addition to the harm experienced
by the IST defendant, medication errors and problematic
side-effects could delay the defendant's return to competency
and subject DSH, and perhaps the involved psychiatrists, to
liability. Requiring the prescribing psychiatrist to examine
the IST defendant will reduce the chances that inappropriate
medication will be prescribed to him or her. This should result
in better health for the IST defendant and timely returns to
competency.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified 5/12/15)
Union of American Physicians and Dentists (source)
American Federation of State, County and Municipal Employees
OPPOSITION: (Verified5/12/15)
Legal Services for Prisoners with Children
ARGUMENTS IN SUPPORT:
The author argues:
"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
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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.
This bill will allow a non-treating psychiatrist to testify in
the hearings, thereby helping preserving the relationship
between the clinician and the IST defendant and reducing or
eliminating reprisals against clinicians for seeking an order
the IST defendant angrily opposes."
ARGUMENTS IN OPPOSITION: Legal Services for Prisoners with
Children argues: This bill will allow a psychiatrist who is not
fully informed about an IST defendant to testify at a hearing
concerning involuntary medication. The treating psychiatrist is
the best person to make the certification at an involuntary
medication hearing because the treating physician well knows the
patient's circumstances and condition. The treating
psychiatrist can thus can be adequately examined and
cross-examined about the issue.
This bill will not improve doctor safety or doctor-patient
relationships because the patient will know that his or her
treating psychiatrist was working toward getting the patient
medicated. Further, doctors are not routinely attacked at
medication hearings.
Prepared by:Jerome McGuire / PUB. S. /
5/13/15 17:26:17
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