BILL ANALYSIS Ó
SB 453
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Date of Hearing: June 16, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
453 (Pan) - As Amended April 28, 2015
SUMMARY: Allows appointment of an acting psychiatrist to seek
an order for involuntary medication of person who is incompetent
to stand trial (IST) based on the need maintain the
doctor-patient relationship or prevent harm. Specifically, this
bill:
1)Allows the treating psychiatrist, of a person that is
incompetent to stand trial, to request that the facility
medical director designate another psychiatrist to act in the
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place of the treating psychiatrist to testify at a hearing on
the involuntary administration of medication, based on a need
to preserve his or her rapport with the patient, or to prevent
harm.
2)Requires that if the medical director of the facility
designates another psychiatrist to testify at a hearing on the
involuntary administration of medication the treating
psychiatrist shall brief the acting psychiatrist of the
relevant facts of the case and the acting psychiatrist shall
examine the patient prior to the hearing.
EXISTING LAW:
1)States that a person cannot be tried or adjudged to punishment
while he or she is mentally incompetent. (Pen. Code, § 1367,
subd. (a).)
2)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).)
3)Specifies 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:
a) The court shall appoint a psychiatrist or psychologist
to examine the defendant. (Pen. Code, § 1369, subd. (a).)
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b) If the defendant is not seeking a finding of mental
incompetence, the court shall appoint two psychiatrists or
psychologists. (Pen. Code, § 1369, subd. (a).)
c) 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. (Pen. Code, § 1369, subd. (a).)
d) The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence. (Pen.
Code, § 1369, subd. (b).)
e) The prosecution shall present its case regarding the
issue of the defendant's present mental competence. (Pen.
Code, § 1369, subd. (c).)
f) Each party may present rebutting testimony, unless the
court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention. (Pen. Code, § 1369, subd. (d).)
4)States that if the defendant is found mentally competent, the
criminal process shall resume. (Pen. Code, § 1370, subd.
(a)(1)(A).)
5)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).)
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6)Includes procedures for incompetency hearings, findings and
orders concerning persons on mandatory supervision, post
release community supervision and parole. (Pen. Code, § 1367
et seq.)
7)States that an incompetent defendant charged with a violent
felony 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).)
8)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).)
a) If the defendant consents, the commitment order shall
confirm that medication may be given to the defendant.
(Pen. Code, § 1370, subd. (a)(2)(B)(iv).)
b) If the defendant does not consent to the administration
of medication, the court shall hear and determine whether
any of the following is true:
i) 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 (Pen. Code,
§ 1370, subd. (a)(2)(B)(i)(I).);
ii) 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 (Pen. Code § 1370, subd. (a)(2)(B)(i)(I).);
iii) 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)(i)(III).); or,
iv) If the court finds any of these grounds to be true,
the court shall authorize the treatment facility to
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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)(ii).)
9)Provides detailed procedures for review of orders for
involuntary antipsychotic medication and to determine whether
a person committed as IST without a medication order should be
medicated. (Pen. Code, § 1370, subd. (a)-(h).)
10)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:
a) 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. (Pen. Code, § 1370,
subd. (a)(2)(D).)
b) The IST defendant shall have the right to a medication
review hearing before an administrative law judge (ALJ)
within 72 hours. (Pen. Code, § 1370, subd. (a)(2)(D).)
c) 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. (Pen. Code, § 1370, subd. (a)(2)(D).)
d) If the ALJ finds that grounds for involuntary
administration of medication have not been established,
medication may not be involuntarily administered until a
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court hearing decides on the issue. (Pen. Code, § 1370,
subd. (a)(2)(D).)
11)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:
a) The court shall provide notice to the prosecutor and
counsel for the defendant of the pending hearing. (Pen.
Code, § 1370, subd. (a)(2)(D).)
b) 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. (Pen.
Code, § 1370, subd. (a)(2)(D).)
c) 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).)
d) 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.
e) 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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12)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).)
13)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).)
14)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).)
15)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.
a) The petition shall include the basis for involuntary
medication, as specified, and requires notice of the
petition to be provided to the defendant, the defendant's
attorney, and the district attorney. (Pen. Code, § 1370,
subd. (a)(7)(B).)
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b) 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).)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "In May 2013 and
July 2014, it became more apparent that DSH psychiatrists were
being assaulted or seriously injured following their testimony
in involuntary medication hearings. With SB 453, we are
ensuring worker safety without compromising access to needed
medications."
2)Current Hearing Process for Administration of Involuntary
Medication Where Defendant Has Capacity to Consent: If the
defendant is not competent to stand trial, the court may issue
an order for the involuntary administration of antipsychotic
medication. Where a court has not issued an order for
involuntary medication, the defendant's treating psychiatrist
can seek an order for involuntary administration of
antipsychotic medication. Before administering antipsychotic
medication involuntarily, the treating psychiatrist must make
efforts to obtain informed consent form the defendant. If
these efforts fail, the treating psychiatrist can place an
Involuntary Medication (IM) order on the defendant and require
him/her to take medications without his or her consent.
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However, a medication review hearing must be held before an
administrative law judge within 72 hours. At the medication
review hearing, the treating psychiatrist testifies and
certifies that the antipsychotic drugs are necessary. If the
administrative law judge finds that the involuntary
administration of antipsychotic medication meets the legal
criteria, the medication can be administered involuntarily for
a period up to 21 days. A separate hearing before a superior
court judge is needed to extend the involuntary medication
order beyond the 21 days.
3)Constitutional Considerations: In Washington v. Harper,
(1990) 494 U.S. 210, the U.S. Supreme Court held that a
mentally-ill prisoner who is a danger to himself or others can
be involuntarily medicated. Furthermore, the Court held in
Riggins v. Nevada, (1992) 504 U.S. 127, that forced medication
in order to render a defendant competent to stand trial for
murder was constitutionally permissible. Read together, the
Court has stated that these two cases "indicate that the
Constitution permits the Government involuntarily to
administer antipsychotic drugs to a mentally ill defendant
facing serious criminal charges in order to render that
defendant competent to stand trial, but only if the treatment
is medically appropriate, is substantially unlikely to have
side effects that may undermine the fairness of the trial,
and, talking account of less intrusive alternatives, is
necessary significantly to the further important governmental
trial-related interests." Sell v. United States (2003) 539
U.S. 166, 179.
In Sell, the Court goes on to further specify the limited
circumstances when the U.S. Constitution permits the
government to administer drugs to a pretrial detainee against
the detainee's will. It finds that all of the following
conditions must apply:
a) A court must find that important governmental interests
are at stake. While bringing to trial a person accused of
a serious crime is an important government interest, and
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timely prosecution satisfies the literal aspect of this
element, that alone does not satisfy the purpose as there
may be special circumstances that lessen its importance in
a particular case. Consequently, this analysis must be
done on a case-by-case basis. Id. at 180; Carter v.
Superior Court (2006) 141 Cal.App.4th 992, 1002.
b) A "court must conclude that involuntary medication will
significantly further those concomitant state interests.
It must find that administration of the drugs is
substantially likely to render the defendant competent to
stand trial." Sell, supra, 539 U.S. at 181.
c) A court must find that the administration of the drugs
is "substantially unlikely" to have side effects that
interfere significantly with the person's ability to assist
his or her counsel in conducting a defense. Ibid.
d) A court must find that involuntary medication is
necessary to further those interests and that alternative,
less intrusive treatments are unlikely to achieve
substantially the same results. Ibid.
e) A court must find that administering the medication is
medically appropriate, that is to say, in the inmate's best
medical interest in light of his or her condition. Ibid.
4)Balance between Patients' Right to Due Process and the Concern
Regarding Safety of Treating Psychiatrists at the Department
of State Hospitals (DSH): 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 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
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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 has 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. This bill seeks to authorize a non-treating
psychiatrist to testify at hearings seeking an involuntary
medication order, reducing the friction or conflict between
the treating doctor and a patient who does not want to be
medicated.
The following are some of the due process concerns that are
raised having non-treating physician testify at a hearing on
the administration of the involuntary medication:
a) Whether the testifying physician has sufficient
information to meaningfully inform the court about the
medical issues of the patient.
b) Whether the testifying physician will convey the medical
information about the patient accurately given that his or
her testimony is not based on firsthand knowledge.
c) Whether a lawyer or judge can meaningfully cross-examine
a testifying psychiatrist that is not the treating
psychiatrist.
This bill does provide measures to help address those due
process concerns. Before an acting psychiatrist can testify
at a hearing on the treating psychiatrist's patient, the
treating psychiatrist would need to brief the acting
psychiatrist and the acting psychiatrist would need to examine
the patient. These requirements put the acting physician in
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position to provide pertinent information during the procedure
of judicial review. Due process considerations can also be
weighed by the judicial officers scrutinizing the request for
involuntary medication. Both the administrative law judge and
the superior court judge involved in the process have the
ability to decline to authorize involuntary medication if they
feel that the burden of proof was not satisfactorily met
through testimony of the acting physician.
5)Amendments Proposed to be Taken in Committee: Proposed
amendments make technical changes which clarify which portions
of the statute (Pen. Code, § 1370) the bill's language
applies.
6)Argument in Support: According to AFSCME, "SB 453 would
authorize a psychiatrist designated by the facility medical
director to make the determination and certification as to
whether antipsychotic medication is medically necessary and
appropriate, to administer that medication to the defendant
for up to 21 days, and allow the treating psychiatrist to
request the medical facility to designate a new psychiatrist
for the purpose of involuntary medication. AFSCME, through
our affiliate the Union of American Physicians and Dentists,
represents physicians in state service, including the DSH, and
it is our duty to look after the safety of our physicians in
the workplace. AFSCME strongly supports SB 453 because we
believe it is necessary to ensure the safety of DSH physicians
who, at times, are threatened by individuals that are deemed
mentally incompetent."
7)Prior Legislation:
a) AB 2186 (Lowenthal) Chapter 744, Statutes of 2014,
authorized a court to extend the administrative law judge's
order authorizing involuntary medication; authorized
specified individuals to petition the court for an order to
administer involuntary medication; required the court to
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review its order authorizing involuntary medication; and
provided that within 60 days of the expiration of the
one-year involuntary medication order, the district
attorney, county counsel, or representative of the facility
where the defendant is being treated may petition the
committing court for a one-year renewal.
b) AB 623 (Lowenthal), of the 2013-2014 Legislative
Session, not heard in committee, would have provided that
inmates confined in a county jail, such as pretrial
detainees, are the same as inmates sentenced to county jail
for the purpose of involuntarily administrating psychiatric
medication.
c) AB 1907 (Lowenthal), Chapter 814, Statutes of 2012,
provided that no individual sentenced to imprisonment in
county jail for specified felonies shall be administered
any psychiatric medication without his or her prior
informed consent, unless specified circumstances are met.
Additionally, made conforming changes to the process by
which state prison inmates can be involuntarily medicated.
d) AB 1114 (Lowenthal), Chapter 665, Statutes of 2011,
changed the procedures for involuntarily medicating state
prison inmates.
e) AB 366 (Allen) Chapter 654, Statutes of 2011, provided
procedures to allow the involuntary administration of
antipsychotic medication to IST inmates with court hearing
and review.
REGISTERED SUPPORT / OPPOSITION:
SB 453
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Support
AFSCME
Union of American Physicians and Dentists
Opposition
None
Analysis Prepared by:David Billingsley / PUB. S. / (916)
319-3744
SB 453
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