BILL ANALYSIS Ó
SB 453
Page 1
Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
SB 453(Pan) - As Amended June 23, 2015
NOTE: This bill is double referred, having previously been heard
by the Assembly Public Safety Committee on June 16, 2015, and
approved on a 7-0 vote.
SENATE VOTE: 36-0
SUBJECT: Prisons: involuntary medication.
SUMMARY: Authorizes a treating psychiatrist to request the
appointment of an acting psychiatrist to seek an order for
involuntary medication of a person, as specified, in order to
preserve the treating psychiatrist's rapport with the patient or
to prevent harm.
EXISTING LAW:
1)Prohibits a person from being tried, or adjudged to punishment
or have his or her probation, mandatory supervision,
postrelease community supervision, or parole revoked while
that person is mentally incompetent, as specified. (Penal
Code (PC) Section 1367(a))
SB 453
Page 2
2)Specifies that if during the pendency of an action and prior
to judgment, or during revocation proceedings for a violation
of probation, mandatory supervision, postrelease community
supervision, or parole, a doubt arises in the mind of the
judge as to the mental competence of the defendant, the judge
must state that doubt in the record and inquire of the
attorney for the defendant whether, in the opinion of the
attorney, the defendant is mentally competent, as specified
and states that if counsel informs the court that he or she
believes the defendant is or may maybe mentally competent, the
court will determine the defendants mental competence at a
hearing. (PC Section 1368(a)(b))
3)Requires a trial by court or jury, of the question of mental
competence, to proceed as follows: (PC Section 1369(a-d))
a) The court must appoint a psychiatrist or licensed
psychologist, and any other expert the court may deem
appropriate to examine defendant;
b) The counsel for the defendant must offer evidence in
support of the allegation of mental competence and if the
defense declines to offer any evidence in support of the
allegation of mental incompetence, the prosecution may do
so;
c) The prosecution must present its case regarding the
issue of the defendant's present mental competence; and,
d) Each party may offer rebutting testimony, unless the
court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention.
4)Specifies that if the defendant is found mentally competent
the criminal process must resume, as specified. (PC Section
1370(a)(1)(A))
SB 453
Page 3
5)States that if the defendant is found mentally incompetent,
the trial, the hearing on the alleged violation, or the
judgment must be suspended until the person becomes mentally
competent. (PC Section 1370(a)(1)(B))
6)Requires the court to 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, including a
local county jail treatment facility or the community-based
residential treatment system, as specified, if the facility
has a secured perimeter or a locked and controlled 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. (PC
Section 1370(a)(1)(B(i))
7)States that an incompetent defendant charged with a violent
may not be delivered to a state hospital or treatment facility
unless the state hospital or treatment facility has a secured
perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(PC Section 1370(a)(1)(D))
8)Specifies that an order by the court authorizing involuntary
medication of a defendant is valid for one year and the court
is required to review the order at the time of the review of
the initial report and the sixth-month progress report to
determine if the grounds for the authorization remain. (PC
Section (a)(7)(A)
9)Establishes the Medical Practice Act, administered by the
Medical Board of California (MBC) within the DCA, to license
and regulate the practice of medicine. (Business and
SB 453
Page 4
Professions Code (BPC) Section 2000, et seq.)
10)Establishes the Osteopathic Medical Practice Act,
administered by the Osteopathic Medical Board of California
within the DCA to license and regulate osteopathic physicians
and surgeons. (BPC Section 2450, et seq.)
THIS BILL:
11)Permits the treating psychiatrist of a person that is
incompetent to stand trial, to request the facility medical
director to designate another psychiatrist to act in the place
of the treating psychiatrist, if the treating psychiatrist
determines there is a need to preserve his or her rapport with
the patient or prevent harm.
12)Specifies that if the medical director of the facility
designates another psychiatrist to act in the place of the
treating psychiatrist, the treating psychiatrist is required
to brief the acting psychiatrist on the relevant facts of the
case and the acting psychiatrist must examine the patient
prior to the hearing.
13)Makes other minor clarifying amendments.
FISCAL EFFECT: According to Senate Appropriations Committee,
pursuant to Senate Rule 28.8, this bill will result in
negligible state costs.
COMMENTS:
SB 453
Page 5
Purpose. This bill is sponsored by the Union of American
Physicians and Dentists . According to the author, "?in May 2013
and July 2014, it became more apparent that Department of State
Hospitals psychiatrists were being assaulted or seriously
injured following their testimony in involuntary medication
hearings. With [this bill] we are ensuring worker safety
without compromising access to needed medications."
Background. Currently, psychiatrists are employed at state
hospitals to provide mental health services to those patients
admitted to state hospitals. The author provides that recent
incidents have occurred in a state hospital facility where
patients have caused harm to their treating psychiatrist as a
result of their testimony at involuntary medication hearings.
This bill will permit a psychiatrist who is treating a patient,
who is subject to an involuntary medication order, to request a
non-treating psychiatrist who is employed by the state hospital
to testify and certify an involuntary medication order. The
desired outcome of authorizing a non-treating psychiatrist to
provide the relevant testimony as requested by a treating
psychiatrist is to maintain the patient/psychiatrist
relationship and to prevent harm to the treating psychiatrist.
Administration of Involuntary Medication. If a defendant is
found to be mentally incompetent, the trial or judgment is
suspended until the defendant becomes mentally competent. In
the meantime, the court is required to send the mentally
incompetent patient to a state hospital for care and treatment
of the mental condition, or to another locked and secure
treatment facility, as specified. If a court has not issued an
order for involuntary medication, the defendant's treating
psychiatrist can seek an order for the involuntary
administration of antipsychotic medication. Prior to the
administration of such medication, the treating psychiatrist is
required to attempt to gain consent from the defendant for the
medication. However, if the treating psychiatrist is unable to
SB 453
Page 6
secure informed consent from the defendant, the treating
psychiatrist is permitted to place an involuntary medication
order on the defendant to require him or her to take his or her
medications. If a treating psychiatrist determines that an
involuntary medication order is necessary, the medication may
only be provided to the patient for not more than 21 days
provided that, within 72 hours of the certification, the
defendant is provided with a medication review hearing conducted
by an administrative law judge at the facility where the
defendant is receiving treatment. In this instance, the
treating psychiatrist is required to present the case for
certification of the involuntary treatment. A separate hearing
is required if the medication order is extended beyond the 21
days.
This bill would specifically authorize the treating psychiatrist
to request the facility medical director to designate another
psychiatrist to act in the place of the treating psychiatrist
during the hearing, if the treating psychiatrist determines
there is a need, based on preserving his or her rapport with the
patient or for preventing harm. In addition, this bill
specifies that if the medical director designates another
psychiatrist, the treating psychiatrist must brief the acting
psychiatrist on the relevant facts of the case, and the acting
psychiatrist must examine the patient prior to the hearing. The
intent of this provision is to help the treating psychiatrist
maintain his or her relationship with his or her patient and
additionally prevent to harm to the treating psychiatrist.
Department of State Hospitals. The California Department of
State Hospitals is responsible for providing the mental health
care for patients admitted to state hospitals. Currently in
California there are 9 state hospitals located throughout the
state.
According to the Department of State Hospitals, patients are
mandated for treatment by a criminal or civil court judge. The
majority of the state hospitals' patients include those patients
who were sent to a state hospital through the criminal court
SB 453
Page 7
system and have committed or have been accused of committing a
crime linked to their mental illness. In addition to forensic
commitments, state hospitals treat patients who have been
classified as Sexually Violent Predators. The remainder of the
department's population has been committed in civil court
because they are a danger to themselves or others. This bill
will require the facility medical director, at the state
hospital where the individual is located, to designate the
psychiatrist who will act on behalf of the treating
psychiatrist.
Medical Board and the Osteopathic Medical Board. Psychiatrists
employed at the Department of State Hospitals are licensed
health care practitioners who must hold a license to practice
from the Medical Board of California (MBC) or the Osteopathic
Medical Board (OMB). The MBC is the regulatory entity
responsible for regulating physician and surgeons and a number
of other allied health professionals. The jurisdiction of the
MBC includes issuing licenses and certificates, the
administration and hearing of disciplinary actions, and carrying
out disciplinary actions. The OMB is responsible for licensing
Osteopathic Physicians and Surgeons in California and is
responsible for investigating consumer complaints and utilizing
its enforcement powers to ensure practitioners abide by the
provisions of the state BPC and the medical practice acts.
Psychiatrists who treat patients at state hospitals are bound to
the same ethical standards as those psychiatrists in private
practice and are subject to the same professional standards as
identified in the BPC relative to the medical practice act and
the osteopathic medical practice act. As noted by
practitioners, it is common and allowable for psychiatrists to
share patient information when treating patients in the same
facility.
Prior Related Legislation. AB 2186 (Lowenthal), Chapter 733,
Statutes of 2014, allows the representative of any facility
where a defendant found incompetent to stand trial is committed,
and specified others, to petition for an order to involuntarily
SB 453
Page 8
medicate the defendant, and, upon issuance of that order,
authorizes the involuntary administration of antipsychotic
medication to the defendant when and as prescribed by the
defendant's treating psychiatrist at any facility housing him or
her for purposes of recovering mental competency; makes other
related changes.
AB 366 (Allen), Chapter 654, Statutes of 2011, revised the
procedures governing the involuntary administration of
antipsychotic medication to state hospital patients.
ARGUMENTS IN SUPPORT:
The American Federation of State, County and Municipal Employees
(AFSCME) writes in support, "[this bill] would authorize a
psychiatrist designated by the faculty 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 allows
the treating psychiatrist to request the medial 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 the workplace.
AFSCME strongly supports [this bill] because we believe [it] is
necessary to ensure the safety of DSH physicians who, at times,
are threatened by individuals that are deemed medically
incompetent."
AUTHOR'S AMENDMENT:
The author has requested an amendment which will make minor,
substantive changes to address a chaptering-out concern with SB
85 (Committee on Budget and Fiscal Review), Chapter 26, 2015.
SB 453
Page 9
ARGUMENTS IN OPPOSITION:
None on file.
REGISTERED SUPPORT:
The Union of American Physicians and Dentists (sponsor)
American Federation of State, County and Municipal Employees
REGISTERED OPPOSITION:
None on file.
Analysis Prepared by:Elissa Silva / B. & P. / (916) 319-3301