BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 507  


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          Date of Hearing:  August 19, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          SB 507  
          (Pavley) - As Amended July 2, 2015


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          Urgency:  No  State Mandated Local Program:  NoReimbursable:  No


          SUMMARY:


          This bill allows the prosecutor petitioning for commitment of a  
          person alleged to be a sexually violent predator (SVP) to access  
          treatment records reviewed by the expert evaluators.   
          Specifically, this bill: 








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          1)Requires an evaluator who is performing an updated evaluation  
            to include a statement listing all records reviewed to make  
            that evaluation.  
          2)Allows either party to subpoena for a certified copy of the  
            records.  The records shall be provided to both the attorney  
            petitioning for commitment and the attorney for the SVP.


          3)Allows the attorneys to use the records for the SVP  
            proceedings, but prohibits disclosure for any other purpose.


          FISCAL EFFECT:


          Potential future increased cost to the Department of State  
          Hospitals (DSH) if the release of the records extends the period  
          of custody of an SVP in the DSH, and minor additional cost to  
          provide copies of records utilized to conduct evaluations.  The  
          annual cost to DSH to treat an SVP is in the range of $200,000.   
              


          COMMENTS:


          1)Purpose/Background.  SVPs are individuals who are committed to  
            a state hospitals because they have been convicted of a  
            sexually violent offense and who have been determined by a  
            judge or jury to be likely to commit a similar offense in the  
            future due to a diagnosed mental disorder.  


            "In Albertson v. Superior Court (2001) 25 Cal. 4th 796, the  
            court held that current law granted express authority for  
            updated evaluations and clarified an exception to the general  
            rule of confidentiality of treatment records in that it allows  








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            the district attorney "access to treatment record information,  
            insofar as that information is contained in an updated  
            evaluation."  


            The court issued this decision immediately after the  
            Legislature  enacted the law  to allow prosecuting attorneys to  
            request updated evaluations of SVPs.  Current law states that  
            the updated evaluations shall include a review of medical and  
            mental health records.  It did not explicitly grant access of  
            the records to prosecutors, nor did it explicitly deny or  
            limit access either.  The Albertson court noted that 'in a  
            SVPA proceeding, a district attorney may obtain, through  
            updated mental evaluations otherwise confidential information  
            concerning an alleged SVP's treatment.


            In some counties, trial courts have interpreted this language  
            to grant the district attorney access only to treatment  
            information and not to the records themselves. A lack of  
            access to the "full record" can deprive judges and juries of  
            the information they need to decide whether or not it is safe  
            to release a violent sex offender from a state hospital.  



            SB 507 establishes that prosecuting attorneys and defense  
            attorneys will have equal access to mental health treatment  
            records before SVPs are assessed for their potential release  
            from state's hospitals. The records would remain confidential  
            for all purposes other than the SVP proceeding.
          2)Argument in Support:  The Los Angeles District Attorney's  
            Office, the sponsor of this bill, states, "Los Angeles courts  
            have recently refused to provide prosecutors with access to  
            treatment records necessary to prepare for trial.  Given that  
            SVP cases are based upon the current mental condition of the  
            offender and given that the district attorney must prove the  
            People's case to a jury, beyond a reasonable doubt, this  
            places the People in an untenable position.








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          3)Arguments in Opposition:  The California Psychiatric  
            Association (CPA) writes, "The CPA has concerns that SB 507  
            would breach the patient-psychotherapist privilege thereby  
            undermining both the purposes and effectiveness of therapy.   
            Courts have ruled, that even though 'the privilege may operate  
            in particular cases to withhold relevant information, the  
            interests of society will be better served if psychiatrists  
            are able to assure patients that their confidences will be  
            protected.  The confidentiality concerns are also shared by  
            ACLU.


          4)Prior Legislation:  

             a)   SB 295 (Emmerson), Chapter 182, Statutes of 2013,  
               revised the procedures to be used by the courts for SVP  
               petitions, whether with or without DSH concurrence, for  
               conditional release and unconditional discharge.

             b)   Proposition 83 ("Jessica's Law"), operative on November  
               7, 2006, and SB 1128 (Alquist), Chapter 337, Statutes of  
               2006, made numerous changes to sex offender and SVP law,  
               including making commitment terms indefinite.

             c)   SB 2018 (Schiff), Chapter 420, Statutes of 2000, allows  
               the prosecutor to obtain updated or replacement  
               evaluations.
          





          Analysis Prepared by:Pedro R. Reyes / APPR. / (916)  
          319-2081










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