BILL ANALYSIS Ó SB 507 Page 1 SENATE THIRD READING SB 507 (Pavley) As Amended July 2, 2015 Majority vote SENATE VOTE: 40-0 ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Public Safety |7-0 |Quirk, Melendez, | | | | | | | | | | | | | | |Jones-Sawyer, Lackey, | | | | |Lopez, Low, Santiago | | | | | | | |----------------+-----+----------------------+--------------------| |Appropriations |17-0 |Gomez, Bigelow, | | | | |Bloom, Bonta, | | | | |Calderon, Chang, | | | | |Nazarian, Eggman, | | | | |Gallagher, Eduardo | | | | |Garcia, Holden, | | | | |Jones, Quirk, Rendon, | | | | |Wagner, Weber, Wood | | | | | | | | | | | | SB 507 Page 2 ------------------------------------------------------------------ SUMMARY: 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: 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. 4)Specifies that the right of any party to object to all or a portion of a subpoenaed record on grounds of prejudicial effect outweighing probative value, or on the basis of materiality to the issue of whether the person is a SVP or to any other issue to be decided by the court remains unaffected. 5)States that if the objection is sustained in whole or in part, the record or records shall retain their confidentiality, as specified. 6)Specifies that this subdivision does not affect the right of a party to seek other records regarding the SVP. SB 507 Page 3 7)Provides that with the exception created above, the rights of a SVP to assert that his or her records are confidential are not affected. 8)States that this bill does not affect the California Supreme Court's determination of the issue of whether or not an expert retained by the district attorney in a SVP proceeding is entitled to review otherwise confidential treatment information. EXISTING LAW: 1)Provides for the civil commitment for psychiatric and psychological treatment of a prison inmate found to be a SVP after the person has served his or her prison commitment. 2)Defines a "sexually violent predator" as "a person who has been convicted of a sexually violent offense against at least one victim, and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." 3)Provides that if evaluators concur that a petition should be filed to commit a person as a SVP, the Director of the Department of State Hospitals (DSH) shall forward a request for a petition for commitment to the pertinent prosecuting attorney for the county. Copies of the evaluation reports and any other supporting documentation shall be made available to that attorney. 4)States that if the county's designated prosecuting attorney concurs with the recommendation, then the commitment petition shall be filed in the county of conviction. SB 507 Page 4 5)Entitles a person alleged to be a SVP to certain rights, including the right to a jury trial, to the assistance of counsel, to retain experts or professionals to perform an examination, and to have access to all relevant medical and psychological records and reports. 6)Allows the prosecutor to obtain updated evaluations of the alleged SVP if he or she determines they are necessary to properly present the case for commitment. The prosecutor may also obtain replacement evaluations if the original evaluator is no longer available to testify. 7)Specifies that updated or replacement evaluations include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews with the alleged SVP. 8)Permits a person committed as a SVP to be held for an indeterminate term upon commitment. 9)Requires that a person found to have been a SVP and committed to the DSH have a current examination on his or her mental condition made at least yearly. The report shall be in the form of a declaration. The report must be filed with the court and also be served on the prosecuting agency involved in the initial commitment. The report shall include consideration of conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and also what conditions can be imposed to adequately protect the community. 10) Permits the SVP to retain a qualified expert or professional person to examine him or her, and the retained individual shall have access to all records concerning the SVP. SB 507 Page 5 11) Provides that when DSH determines that the person's condition has so changed that he or she is not likely to commit acts of predatory sexual violence while under community treatment and supervision, then the DSH Director shall forward a report and recommendation for conditional release to the court, the prosecuting agency, and the attorney of record for the committed person. 12) Establishes a process whereby a person committed as a SVP can petition for conditional release any time after one year of commitment, notwithstanding the lack of recommendation or concurrence by the Director of DSH. 13) Provides that all information and records obtained in the course of providing services to either a voluntary or involuntary recipient of services under the Sexually Violent Predator Act (SVPA) shall be confidential, except under limited circumstances. FISCAL EFFECT: According to the Assembly Appropriations Committee, 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: According to the author, "SB 507 addresses the need for fair hearings when Sexually Violent Predators (SVPs) come up for state hospital commitment reviews. This bill establishes that both 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. A SB 507 Page 6 lack of access to these records 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. The records would remain confidential for all purposes other than the SVP proceedings. "Under California law, SVPs are those who have been convicted of a sexually violent offense, such as forcible rape, forcible sodomy, or child molestation, 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 these instances, SVPs are committed to a state hospital. "In 1996, the Legislature created the Sex Offender Commitment Program to target a small, but extremely dangerous subset of sexually violent offenders who present a continuing threat to society because their diagnosed mental disorders predispose them to engage in sexually violent criminal behavior. "This can be particularly problematic in SVP cases because the District Attorney [DA] is charged with proving to a unanimous jury, beyond a reasonable doubt, that a sexual predator currently has a diagnosed mental disorder which predisposes him to commit sexually violent crimes, and that he meets the criteria for indefinite commitment of a state hospital for sex offender treatment. "In Albertson v. Superior Court (2001) 25 Cal. 4th 796, the court held that WIC [Welfare and Institutions Code] Section 6603 granted express authority for updated evaluations and clarified an exception to the general rule of confidentiality of treatment records in that it allows the district attorney 'access to treatment record information, insofar as that information is contained in an updated evaluation.' Some trial courts have interpreted this language to grant the DA access only to SB 507 Page 7 treatment information and not to the records themselves. "The court issued this decision immediately after the Legislature enacted Section 6603 to allow prosecuting attorneys to request updated evaluations. Section 6603 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.' "At the present time, whether or not the DA is granted direct access to the records or whether the DA is only allowed to access records relied upon by the evaluating psychologists, depends upon the judge's reading of Albertson. As a result, the issue is repeatedly litigated and the results vary throughout California. "In Seaton vs. Mayberg (2010) 610 P.3rd 530, 539, the Ninth Circuit court cited that sexually violent predator evaluations fall within those long established exceptions to the confidentiality of medical communications. It cited other public health and public safety requirements overcoming a right to privacy include cases of restraint due to insanity, contagious diseases, abuse of children and gunshot wounds. In People v. Martinez, the 4th District Court of Appeal held that it is not a violation of the California right to privacy (Article I, Section 1 of the California Constitution) to provide copies of mental health treatment records to the prosecutor in an SVP case. People v. Martinez (1994) 88 Cal App 4th 465. "Some of California's most violent sexual predators can be released back into society if complete information is not SB 507 Page 8 available to prosecutors and defense lawyers at the time the predator's cases are being reviewed. This bill is needed to help ensure such mistakes are prevented in the future, providing more peace of mind to already traumatized victims, their families and the public at large. "According to the National Intimate Partners and Sexual Violence Survey, conducted by the Centers for Disease Control and Prevention, there are an estimated two million female victims of rape in California, and estimated 8.5 million survivors of sexual violence, other than rape, in the United States. "There are 20 states that have laws providing for involuntary civil commitment of sexually violent predators similar to California's SVP law, in addition to the federal SVP law (the Adam Walsh Act). California is the only state that does not have a specific legislative provision granting prosecutors access to mental health and medical records for the purpose of carrying out sexually violent predator commitment law." Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001613 SB 507 Page 9