BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 938 (Jackson)
Version: March 15, 2016
Hearing Date: March 29, 2016
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Conservatorships: psychotropic drugs
DESCRIPTION
This bill would require additional information, as specified, to
be included in the existing physician or psychologist
declaration filed in support of a conservator's petition to
authorize the administration of psychotropic medication to a
conservatee with dementia. This bill would require the Judicial
Council to adopt rules and guidelines for the court to evaluate
a request to authorize the administration of psychotropic
medication to the conservatee. This bill would also update the
term "dementia" to refer instead to major or mild neurocognitive
disorders (MNCDs) and make various revisions to the codified
legislative intent language associated with conservator powers
regarding conservatees with dementia.
BACKGROUND
Existing law provides for judicial oversight of the
administration of psychotropic medications to conservatees with
dementia and requires conservators to petition the court to
authorize the administration of psychotropic drugs to
conservatees with dementia. (Prob. Code Sec. 2356.5(c).) Since
conservatees lack the capacity to make their own medical
decisions, judicial oversight is necessary to protect
conservatees with dementia from being unnecessarily
overmedicated. SB 1481 (Mello, Chapter 910, Statutes of 1996)
established these protections to provide, within the scheme of a
probate conservatorship, the authority to place a person with
dementia in a locked facility and to authorize the
administration of medications. Prior to 1996, that authority
was only available through a temporary conservatorship
established under the Lanterman-Petris-Short Act (LPS Act),
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which was designed to provide due process safeguards for persons
deemed to be "gravely disabled" as a result of a mental
disorder.
LPS conservatorships are established on a limited-time basis
until the individual is no longer deemed "gravely disabled."
However, dementia is an illness that is progressively
degenerative and does not respond to treatment in the same
manner as other mental disorders. Accordingly, SB 1481 was
enacted to meet the unique conservatorship needs of dementia
patients. As noted in the codified intent language in SB 1481,
psychotropic medications can be misused on patients with
dementia to control behavior that conveys pain, distress, or
discomfort.
Beginning in 2005, the United States Food and Drug
Administration (FDA) required all antipsychotic medications,
which are a class of psychotropic drugs, to include a black box
warning that these medications significantly increase the risk
of death in elderly people with dementia. By 2011, the FDA had
approved the use of eight atypical antipsychotic drugs for the
treatment of schizophrenia and/or bipolar disorders, but the
side effects associated with those drugs included increased risk
of death in elderly persons with dementia. (Office of Inspector
General, U.S. Dept. of Health and Human Services, Medicare
Atypical Antipsychotic Drug Claims for Elderly Nursing Home
Residents (May 2011)
[as of Mar.
8, 2016] p. i.) Further, recent studies have shown that
antipsychotic drugs can worsen the cognitive ability of a person
with dementia and may have no effect on the symptoms of
dementia, which may include severe behavioral problems.
Notably, a 2011 report from the Office of the Inspector General,
Department of Health and Human Services, reported that 83
percent of atypical antipsychotic drugs prescribed for elderly
nursing home residents were associated with off-label conditions
(conditions not listed for use of the medication in the FDA's
black box warning). (Office of Inspector General, Dept. of
Health and Human Services, Medicare Atypical Antipsychotic Drug
Claims for Elderly Nursing Home Residents (May 2011)
[as of Mar.
8, 2016] p. ii.)
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Following the national movement to reduce the administration of
antipsychotic medications to dementia patients, the Centers for
Medicare & Medicaid Services Region IX and the California
Department of Public Health, together with a diverse group of
stakeholders, formed a partnership to develop a collaborative
action plan for improving dementia care and reducing the
inappropriate use of antipsychotic medication in California
Nursing Homes. (Centers for Medicare & Medicaid Services,
Region IX, Cal. Dept. of Public Health, Working Together:
California Partnership to Improve Dementia Care and Reduce
Unnecessary Antipsychotic Medication Drug Use in Nursing Homes,
Summary Report (Dec. 2012)
[as of
Mar. 8, 2016] p. 1.) Yet, a 2014 report released by the United
States Government Accountability Office on the use of
antipsychotic drugs in nursing homes noted that prescribing
rates of antipsychotic drugs to nursing home residents with
dementia continues to be too high, especially when the FDA has
not approved the use of antipsychotic drugs to treat the
behavioral symptoms of dementia. (U.S. Government
Accountability Office, Report to Congressional Requesters,
Antipsychotic Drug Use: HHS Has Initiatives to Reduce Use among
Older Adults in Nursing Homes, but Should Expand Efforts to
Other Settings (GAO-15-211) (Jan. 2015) pp. 1-2.) According to
that report, experts and research attribute the high incidence
of antipsychotic use on dementia patients to the culture of the
nursing facility, the level of physician and staff training and
education, and the number of staff at the nursing home. (Id.,
p. 23.) Further, the report noted that it is estimated that
close to one in five older adults with dementia living outside
of a nursing home took an antipsychotic between 2002 and 2004.
(Id., p. 3.)
In addition to concern regarding overuse of antipsychotic
medications to treat dementia patients both inside and outside
of nursing homes, existing law uses outdated terminology
regarding dementia. The statute, Probate Code Section 2365.5,
relies on the "latest published edition" of the Diagnostic and
Statistical Manual of Mental Disorders to define the term
"dementia;" however, the latest edition of that manual (DSM-5)
includes dementia disorders under a broader diagnostic category
of major and minor neurocognitive disorders. Common forms of
MNCDs include Alzheimer's disease, vascular dementia, dementia
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with Lewy bodies, Parkinson dementia, frontotemporal dementia,
and mixed dementia.
To provide better guidance on whether psychotropic medication
should be administered to dementia conservatees, the bill would
require additional information to be provided in a physician or
psychologist declaration filed in support of the conservator's
petition to authorize the administration of psychotropic
medication. The bill would also revise existing law to reflect
the various dementia disorders that fall under the new, broader
diagnostic category of MNCDs and make various conforming
changes.
CHANGES TO EXISTING LAW
Existing law specifies the powers and duties of a conservator
and the powers and rights retained by a conservatee subject to a
conservatorship. (Prob. Code Sec. 2350 et seq.)
Existing law authorizes the conservator to establish the
residence of the conservatee at any place within California
without the permission of the court and requires the conservator
to select the least restrictive appropriate residence, as
specified, that is available and necessary to meet the needs of
the conservatee, and that is in the best interests of the
conservatee. (Prob. Code. Sec. 2352(b).) Existing law requires
filing and service of a notice of change of residence, as
specified. (Prob. Code Sec. 2352(e).)
Existing law provides that if the conservatee has not been
adjudicated to lack the capacity to give informed consent for
medical treatment, the conservatee may consent to his or her
medical treatment; the conservator may also give consent to the
medical treatment, but the consent of the conservator is not
required if the conservatee has the capacity to give informed
consent to the medical treatment, and the consent of the
conservator alone is not sufficient if the conservatee objects
to the medical treatment. (Prob. Code Sec. 2354(a).)
Existing law , after obtaining a court order specifically
authorizing medical treatment, authorizes the conservator to
require the conservatee to receive medical treatment, whether or
not the conservatee consents to the treatment. (Prob. Code Sec.
2354(b).)
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Existing law , in an emergency case in which medical treatment is
required, authorizes the conservator to consent to or require
medical treatment to be performed upon the conservatee if the
conservator determines in good faith based upon medical advice
that the case is an emergency case in which the medical
treatment is required because (1) the treatment is required for
the alleviation of severe pain or (2) the conservatee has a
medical condition which, if not immediately diagnosed and
treated, will lead to serious disability or death. (Prob. Code
Sec. 2354(c).)
Existing law , if the conservatee has been adjudicated to lack
the capacity to make health care decisions, provides the
conservator the exclusive authority to make health care
decisions for the conservatee that the conservator in good faith
based on medical advice determines to be necessary. (Prob. Code
Sec. 2355(a).) Existing law requires the conservator to make
health care decisions for the conservatee in accordance with the
conservatee's individual health care instructions, if any, and
other wishes to the extent known to the conservator; otherwise,
the conservator is required to make the decision in accordance
with the conservator's determination of the conservatee's best
interest, including the conservatee's personal values to the
extent known to the conservator. (Id.)
Existing law , subject to the provisions of a valid and effective
advance health care directive, prohibits placing a conservatee
in a mental health treatment facility against his or her will,
and the involuntary civil placement of a conservatee in a mental
health treatment facility may be obtained only pursuant to the
Lanterman-Petris-Short Act, as specified. (Prob. Code Sec.
2356(a).)
Existing law , if a conservatee is unable to give an informed
consent to medical treatment for an existing or continuing
medical condition which is not authorized to be performed upon
the conservatee, authorizes the conservator to petition the
court for an order authorizing the medical treatment and
authorizing the conservator to consent on behalf of the
conservatee to the medical treatment. (Prob. Code Sec.
2357(b).) Existing law requires that petition to state, or set
forth by medical affidavit attached thereto, all of the
following so far as is known to the petitioner at the time the
petition is filed:
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the nature of the medical condition of the conservatee which
requires treatment;
the recommended course of medical treatment which is
considered to be medically appropriate;
the threat to the health of the conservatee if authorization
to consent to the recommended course of treatment is delayed
or denied by the court;
the predictable or probable outcome of the recommended course
of treatment;
the medically available alternatives, if any, to the course of
treatment recommended;
the efforts made to obtain an informed consent from the
conservatee; and
the name and addresses, so far as they are known to the
petitioner, of the conservatee's spouse, domestic partner, or
relatives, as specified. (Prob. Code Sec. 2357(c).)
Existing law , upon the filing of that petition, unless an
attorney is already appointed, requires the court to appoint the
public defender or private counsel, as specified, to consult
with and represent the conservatee at the hearing on the
petition. (Prob. Code Sec. 2357(d).)
Existing law requires notice of the petition to be given not
less than 15 days before the hearing, notice of the time and
place of the hearing, and a copy of the petition shall be
personally served on the conservatee and the conservatee's
attorney, and a copy of the petition mailed to the conservatee's
spouse, domestic partner, and relatives, as specified. (Prob.
Code Sec. 2357(e).)
Existing law , authorizes the court to shorten or waive notice of
the hearing if the court takes into account the existing medical
facts and circumstances set forth in the petition or in a
medical affidavit attached to the petition or medical affidavit
presented to the court and the desirability, where the condition
of the conservatee permits, of giving adequate notice to all
interested persons. (Prob. Code Sec. 2357(f).)
Existing law permits the court to make an order authorizing the
recommended course of medical treatment of the conservatee and
authorizing the conservator to consent on behalf of the
conservatee to the recommended course of medical treatment for
the conservatee if the court determines from the evidence all of
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the following:
the existing or continuing medical condition of the
conservatee requires the recommended course of medical
treatment;
if untreated, there is a probability that the condition will
become life-endangering or result in a serious threat to the
physical or mental health of the conservatee; and
the conservatee is unable to give an informed consent to the
recommended course of treatment. (Prob. Code Sec. 2357(h).)
Existing law finds and declares that: (1) people with dementia,
as defined in the last published edition of the "Diagnostic and
Statistical Manual of Mental Disorders," should have a
conservatorship to serve their unique and special needs; (2)
adding powers to the probate conservatorship for people with
dementia, their unique and special needs can be met, which will
reduce costs to the conservatee and the conservatee's family,
reduce costly administration by state and county governments,
and safeguard the basic dignity and rights of the conservatee;
(3) it is the intent of the Legislature to recognize that the
administration of psychotropic medications has been, and can be,
abused by caregivers and, therefore, granting powers to a
conservator to authorize these medications for the treatment of
dementia requires protections. (Prob. Code Sec. 2356.5(a).)
Existing law , notwithstanding any other law, authorizes a
conservator to place a conservatee in a secured perimeter
residential care facility for the elderly, as specified, upon a
court's finding, by clear and convincing evidence, of all of the
following:
the conservatee has dementia, as defined in the last published
edition of the "Diagnostic and Statistical Manual of Mental
Disorders;"
the conservatee lacks the capacity to give informed consent to
this placement and has at least one mental function deficit,
as specified, and this deficit significantly impairs the
person's ability to understand and appreciate the consequences
of his or her actions;
the conservatee needs or would benefit from a restricted and
secure environment, as demonstrated by evidence presented by
the physician or psychologist, as specified; and
the court finds that the proposed placement in a locked
facility is the least restrictive placement appropriate to the
needs of the conservatee. (Prob. Code Sec. 2356.5(b).)
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Existing law , notwithstanding any other law, authorizes a
conservator of a person to authorize the administration of
medications appropriate for the care and treatment of dementia,
upon a court's finding, by clear and convincing evidence, of all
of the following:
the conservatee has dementia, as defined in the last published
edition of the "Diagnostic and Statistical Manual of Mental
Disorders;"
the conservatee lacks the capacity to give informed consent to
the administration of medications appropriate to the care of
dementia, and has at least one mental function deficit, and
this deficit or deficits significantly impairs the person's
ability to understand and appreciate the consequences of his
or her actions; and
the conservatee needs or would benefit from appropriate
medication as demonstrated by evidence presented by the
physician or psychologist. (Prob. Code Sec. 2356.5(c).)
Existing law , in the case of a person who is an adherent of a
religion whose tenets and practices call for a reliance on
prayer alone for healing, authorizes the treatment required by
the conservator to be by an accredited practitioner of that
religion in lieu of the administration of medications. (Prob.
Code Sec. 2356.5(d).)
Existing law prohibits placement of a conservatee in a mental
health rehabilitation center, as specified, or in an institution
for mental disease, as specified. (Prob. Code Sec. 2356.5(e).)
Existing law requires the conservatee to be represented by an
attorney, as specified, and, upon granting or denying authority
to a conservator to place the conservatee in a facility or to
administer psychotropic medications to the conservatee, requires
the court to discharge the conservatee's attorney or order the
continuation of the legal representation, as specified. (Prob.
Code Sec. 2356.5(f)(1).)
Existing law requires the conservatee to be produced at the
hearing unless excused, as specified, and requires the petition
for authorization to place the conservatee in a facility or to
administer psychotropic medications to be supported by a
declaration of a licensed physician, or a licensed psychologist
within the scope of his or her licensure, regarding each of the
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findings required to be made for any power requested, except
that the psychologist has at least two years of experience in
diagnosing dementia. (Prob. Code Sec. 2356.5(f)(2)-(3).)
Existing law authorizes the petition to place the conservatee in
a facility or to administer psychotropic medication to the
conservatee to be filed by the conservator, the conservatee, or
the spouse, domestic partners, or any relative or friend of the
conservatee. (Prob. Code Sec. 2356.5(f)(4).)
Existing law requires the court investigator annually to
investigate and report to the court every two years, as
specified, if the conservator is authorized to act, and the
investigator is required to specifically advise the conservatee
that he or she has the right to object to the conservator's
powers, and the report is required to include whether the powers
granted are warranted. (Prob. Code Sec. 2356.5(g).)
Existing law provides that if the conservatee objects to the
conservator's powers, or the investigator determines that some
change in the powers is warranted, the court is required to
provide a copy of the report to the attorney of record for the
conservatee, or, if no attorney has been appointed, to the
court-appointed attorney. (Prob. Code Sec. 2356.5(g).)
Existing law requires the conservatee's attorney, within 30 days
after receiving the report, to either file a petition with the
court regarding the status of the conservatee or file a written
report with the court stating that the attorney has met with the
conservatee and determined that the petition would be
inappropriate. (Id.)
Existing law provides for the filing of a petition to terminate
the authority granted to the conservator and provides that the
petition for authorization to place the conservatee in a
facility or to administer psychotropic medications does not
affect a conservatorship of the estate of a person who has
dementia, the laws that would otherwise apply in emergency
situations, or law regarding the power of a probate court to fix
the residence of a conservatee or to authorize medical treatment
for any conservatee who has not been determined to have
dementia. (Prob. Code Sec. 2356.5(h)-(k).)
This bill would codify legislative findings and declarations
that:
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would replace the term "dementia" with "major or mild
neurocognitive disorders (MNCDs)," and list common forms of
MNCDs as Alzheimer's disease, vascular dementia, dementia with
Lewy bodies, Parkinson dementia, frontotemporal dementia, and
mixed dementia;
psychotropic medications or psychotropic drugs are those
medications administered for the purpose of affecting the
central nervous system to treat psychiatric disorders or
illnesses;
psychotropic medications are often misused for people with
MNCDs to control behavior that conveys pain, distress, or
discomfort, and the administration of psychotropic medications
has been, and can be, abused by those who prescribe and
administer these medications;
since 2005, the federal Food and Drug Administration has
required the packaging of all antipsychotic medications, which
fall under a class of psychotropic medication, to contain a
black box warning label that the medication significantly
increases the risk of death for elderly people with MNCDs; and
recent studies have shown that, in many instances,
psychotropic drugs are outperformed by placebos and can
actually worsen the cognitive ability of a person with an
MNCD.
This bill would delete the provision prohibiting placement of a
conservatee in a mental health rehabilitation center or
institution for mental disease, as specified.
This bill would require the physician's or psychologist's
declaration filed in support of a petition requesting authority
of the conservator to authorize the administration of
psychotropic medications to a conservatee to also include all of
the following:
a description of the conservatee's diagnosis and behavior;
the recommended course of medication;
a description of the pharmacological and nonpharmacological
treatments and medications that have been previously used or
proposed, the less invasive treatments or medications
previously used or proposed, and why these treatments or
medications have not been or would not be effective in
treating the conservatee's symptoms;
the expected effects of the recommended medication on the
conservatee's overall mental health and treatment plan,
including how the medication is expected to improve the
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conservatee's symptoms;
a description of the potential side effects of the recommended
medication; and
whether the conservatee and his or her attorney have had an
opportunity to provide input on the recommended medications.
This bill , on or before July 1, 2017, would require the Judicial
Council to adopt rules of court and develop appropriate forms
for the implementation of the bill, and provide guidance to the
court on how to evaluate the request for authorization,
including how to proceed if information, otherwise required to
be included in a request for authorization, is not included in a
request for authorization submitted to the court.
This bill would make other technical or conforming revisions.
COMMENT
1. Stated need for the bill
The author writes:
To address the incidence of overmedication in nursing homes
and in-home care, SB 938 requires the physician or
psychologist declaration attached to a conservator's petition
seeking authorization to administer psychotropic medications
to a dementia conservatee to provide additional information
particular to the conservatee in order for the court to better
evaluate whether to approve a petition to administer
psychotropic medication to the conservatee.
This bill also updates existing law on dementia care of
conservatees to reflect our current understanding of dementia
disorders. Finally, following a national and state movement
to limit the administration of psychotropic medications to
dementia patients, this bill updates the codified intent
language of existing law to provide better instruction to
conservators and courts on the dangers of psychotropic
medication uses on dementia conservatees.
2. Additional physician or psychologist declaration requirements
Existing law requires a conservator's petition for authorization
to place a conservatee with dementia in a residential care
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facility for the elderly or to authorize the administration of
medications to be supported by a physician's or psychologist's
declaration. (Prob. Code Sec. 2356.5.) In order to obtain
authorization for the administration of psychotropic
medications, the Judicial Council's Form GC-335A, Dementia
Attachment to Capacity Declaration - Conservatorship, requires
the conservatee's physician or psychologist to list the
psychotropic medications to be administered, describe the
conservatee's mental function deficits, determine whether the
conservatee has capacity to give informed consent to the
administration of psychotropic medications appropriate to the
care of dementia, and state the reasons the conservatee needs or
would benefit from the administration of the psychotropic
medications. This bill would expand those requirements to also
require the physician or psychologist to provide:
a description of the conservatee's diagnosis and behavior;
the recommended course of medication;
a description of the pharmacological and nonpharmacological
treatments and medications that have been previously used or
proposed, the less invasive treatments or medications
previously used or proposed, and why these treatments and
medications have not been or would not be effective in
treating the conservatee's symptoms;
the expected results of the recommended medication on the
conservatee's overall mental health and treatment plan,
including how the medication is expected to improve the
conservatee's symptoms;
a description of the potential side effects of the recommended
medication; and
whether the conservatee and his or her attorney have had an
opportunity to provide input on the recommended medications.
The author states that home health care is rapidly expanding due
to the Baby Boomer generation reaching retirement age and the
high cost of and increasing lack of space in nursing homes and
hospitals that would otherwise care for seniors with serious
medical concerns. The author further states that, as a result,
more and more family and alternative caregivers are providing
health care to seniors outside of a residential or medical
facility. In accordance with the original intent of existing
law to protect conservatees with dementia from overmedication by
caregivers, the author argues that this bill better defines the
criteria upon which a court would determine whether a
conservator should have the ability to authorize the
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administration of psychotropic medications to a conservatee with
dementia.
California Advocates for Nursing Home Reform (CANHR), sponsor,
notes that "[a]bout one in seven Medicare beneficiaries with
dementia who do not live in a nursing home receive an
antipsychotic drug. [U.S. Government Accountability Office,
Report to Congressional Requesters, ANTIPSYCHOTIC DRUG USE: HHS
Has Initiatives to Reduce Use among Older Adults in Nursing
Homes, but Should Expand Efforts to Other Settings (GAO-15-211)
(Jan. 2015) [as of
Mar. 9, 2016] p. 15.]"
Notably, even when an individual with dementia is living in a
care facility, the use of psychotropic medication to treat
dementia patients is high, and these medications are reportedly
being administered "off-label" to treat medical issues or
symptoms for which the medication had not been approved.
According to a report on the CMS National Partnership to Improve
Dementia Care:
The prevalence of antipsychotic medication use in nursing
homes is high; approximately one-quarter to one-third of
nursing home residents were prescribed antipsychotic therapy
in 2011. In one study, 22 [percent] of residents with
dementia who were prescribed an antipsychotic for an off-label
use did not have behavioral symptoms and 29.5 [percent] had
non-aggressive behavioral symptoms. In some cases, patients
may have a clinical indication or psychiatric diagnosis. In
other situations these medications were used off-label to
treat mild behavioral symptoms such as wandering, or as a
sedative or chemical restraint for non-approved uses such as
"crying" or "resisting care."
Antipsychotic drug therapy is not approved for treatment of
behavioral and psychological symptoms of dementia. Based on
evidence of serious side effects, including an increased risk
of death, in 2005 and 2008 the FDA issued a Black Box warning
for antipsychotic use in people with dementia. Despite these
warnings, and a lack of efficacy noted in several studies,
these agents continue to be used commonly to treat behavioral
or psychological symptoms of dementia.
(Centers for Medicare & Medicaid Services, Report on the CMS
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National Partnership to Improve Dementia Care in Nursing Homes:
Q4 2011 - Q1 2014 (Apr. 1, 2014)
[as of Mar. 9, 2016] p. 11.)
According to the United States Government Accountability Office,
nursing home leadership, such as administrators and medical
directors, and nursing home culture were cited by half of the
experts and two of the research articles to explain the decision
to prescribe antipsychotic drugs to older adults. (U.S.
Government Accountability Office, Report to Congressional
Requesters, ANTIPSYCHOTIC DRUG USE: HHS Has Initiatives to
Reduce Use among Older Adults in Nursing Homes, but Should
Expand Efforts to Other Settings (GAO-15-211) (Jan. 2015)
[as of Mar. 9, 2016]
p. 23.) That report further states that "[i]n addition to
nursing home culture and leadership, many experts and two
research articles identified staff or prescriber education and
training on antipsychotic prescribing for individuals with
dementia as affecting antipsychotic drug prescribing. One
industry group we spoke with indicated that physician training
specifically regarding older adults with dementia in nursing
homes and knowledge of related federal regulations are often
lacking." (Id.)
As noted above (see Background), national and state efforts to
decrease the use of psychotropic medications to treat dementia
patients continues as the rates of psychotropic medication
administered to dementia patients remains high, despite the
FDA's black box warning that psychotropic medication may make a
dementia patient's symptoms worse and could result in death.
According to CANHR, "[u]nfortunately, many of our institutions
have yet to reflect the evolution of dementia care and misuse
continues to be a major problem. One of those institutions is
conservatorship court." CANHR argues that existing law does not
give a conservatorship court much information about the reasons
for proposing a psychotropic drug for a conservatee with
dementia, and the "paucity of information to justify
psychotropic drug use often results in courts unwittingly
enabling very bad health care practices by authorizing the use
of mind-altering drugs when non-drug interventions would have
yielded much better and healthier results. In addition, the
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lack of meaningful review means that California law provides
more protection to people with mental illness when psychotropic
drugs are FDA-approved than for people with dementia when
psychotropic drugs are being used 'off-label' as treatments that
are not FDA-approved."
To address the dangers of psychotropic medications used to treat
dementia, this bill would require additional information to be
provided to the court for its determination of whether to
authorize the conservator to have psychotropic medications
administered to the conservatee with dementia. Notably, this
list of additional information required to be provided in the
physician's or psychologist's declaration incorporates similar
provisions from the petition for conservator authorization to
administer medical treatment to a non-dementia conservatee (see
Probate Code Section 2357(c)), as well as similar provisions
enacted last year in SB 238 (Mitchell, Chapter 534, Statutes of
2015) which, among other things, revised the existing
requirement for court authorization for the administration of
psychotropic medication to a minor placed in foster care (see
Welfare and Institutions Code Section 369.5(a)).
In addition to that list, the bill would also require the
Judicial Council to adopt rules of court and develop appropriate
forms for the implementation of the bill, and provide guidance
to the court on how to evaluate the request for authorization,
including how to proceed if information, otherwise required to
be included in a request for authorization, is not included in a
request for authorization submitted to the court. This
requirement also mirrors the language enacted in SB 238.
3. Updating terminology and intent language
Existing law provides enhanced due process protections for
conservatees who suffer from "dementia," as defined in the last
published edition of the "Diagnostic and Statistical Manual of
Mental Disorders." The current edition is volume 5, commonly
known as the "DSM-5," which incorporates dementia along with
Alzheimer's disease, vascular dementia, dementia with Lewy
bodies, Parkinson dementia, frontotemporal dementia, and mixed
dementia, under a new, broader diagnostic category called major
neurocognitive disorders (MNCDs).
This bill would update the law to properly reflect today's
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understanding of dementia disorders. In order to provide
appropriate protection for conservatees with varying levels of
dementia disorders, this bill would specify that the conservatee
with either a major or mild neurocognitive disorder would
qualify for the additional protections in this bill. It is
important to note that existing law, which is continued in this
bill, protects the due process rights of an individual with a
dementia disorder by requiring that a conservatorship is
necessary and has been established, as well as clear and
convincing evidence that the conservatee lacks capacity to give
informed consent to placement in a facility or the
administration of psychotropic medication.
Additionally, this bill would make numerous updates to the
legislative findings and declarations codified in the statute to
better reflect the current unique and special needs of
conservatees with dementia.
4. Placement of conservatees with dementia in facilities
This bill would strike from existing law the prohibition on
placing a conservatee with an MNCD in a mental health
rehabilitation center or institution for mental disease, as
specified. (See Prob. Code Sec. 2356.5(e).) It appears that
when the original law was drafted in 1996, this prohibition was
included in the bill to make certain that conservatees with
dementia were not placed in a facility that may not provide
appropriate dementia care, as opposed to care appropriate for
treating other mental disorders. (See SB 1481 (Mello, Ch. 910,
Stats. 1996).)
However, existing law and this bill only authorize placement of
the conservatee with dementia in a secured perimeter residential
care facility for the elderly (RCFE). (See Prob. Code Sec.
2356.5(b).) Additionally, subject to the provisions of a valid
and effective advance health care directive, existing law
otherwise prohibits placing a conservatee, regardless of whether
the conservatee has been diagnosed with dementia, in a mental
health treatment facility against his or her will, and
involuntary civil placement of a conservatee in a mental health
treatment facility may only be obtained pursuant to the
Lanterman-Petris-Short Act, as specified. (See Prob. Code Sec.
2356(a).) Further, the removal of the prohibition on placing a
conservatee with dementia in a mental health rehabilitation
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center or institution for mental disease is arguably
inconsequential since existing law, and this bill, only
authorize placement of conservatees with dementia in RCFEs,
which are not licensed as mental health or psychiatric
facilities.
5. Concerns raised
The Alzheimer's Association (AA) has raised several issues for
discussion about the intersection of health care needs of
complex patients and the shared desire to safeguard the basic
rights and dignity of conservatees. Staff notes that almost all
of AA's issues raised pertain to existing law, which was enacted
by SB 1481 (Mello, Chapter 910, Statutes of 1996) and sponsored
by AA.
First, AA states that the bill would include 78 medications
under the broad category of psychotropic medications, including
at least two of the three Federal Drug Administration (FDA)
approved dementia medications - Aricept and Namenda. AA
suggests the bill should limit the list of medications to which
it applies to include only medications such as those with FDA
black box warnings known as antipsychotics. AA also notes that
sudden changes in condition or challenging behaviors that become
unmanageable, causing serious distress or danger to the person
with MNCD, family members, fellow residents, and care providers,
make these incidents overwhelming and, with a lengthy petition
and declaration process with the court, force them to call 9-1-1
and go to the emergency room where psychotropic medications are
then administered.
Further, AA ponders whether we are creating a system that forces
more ER visits and costly hospitalizations and whether we are
further disrupting the lives of individuals who are already
disturbed by being transferred by ambulance, held in an ER,
admitted to the hospital, or discharged to a new facility. AA
also raises concerns that conservators and conservatees will be
subject to court schedules and medical appointments in order to
pursue and file a declaration, taking between three and six
months to complete, making it difficult to respond to patient
needs in the interim period or when there is a sudden change of
condition.
AA also states that enhanced scrutiny required by physicians and
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psychologists may necessitate placement in a higher level of
care with 24/7 access to medical personnel such as a skilled
nursing facility, which runs counter to the Olmstead decision,
the closure of California's state developmental centers, and the
intention of the state's Medicaid Section 1115 waiver to
maintain seniors and persons with disabilities in the least
restrictive environment. AA also wonders whether the
conservator would have to resume the petition process each time
the clinician wants to prescribe a new medicine or change the
dosage, and notes that a "whole person care" environment is
necessary to assure that the conservator and court understand
and integrate the complex physical, mental, and emotional needs
of the patient. AA also asks if psychologists should be given
the role of filling out a declaration pertaining to the
administration of medication to a conservatee with dementia, why
not also add in social workers, nurses, nurse practitioners,
physician assistants and other extenders. AA also wonders who
covers the cost for conserved individuals with MNCD who rely on
SSI/SSP and Medi-Cal as their sole sources of support, and who
will pay for court costs, physician assessments and
declarations, and court filings. AA notes that the rigor
required in the declaration by the physician or psychologist is
not routine and will likely not be reimbursed by Medicare or
Medi-Cal with the consumer bearing the brunt of the costs.
In response, the author appreciates the discussion raised by AA.
The author also notes that existing law currently would apply
to all medications administered to a conservatee with dementia
as long as the medications are "appropriate for the care and
treatment of dementia." Yet, this bill would clarify existing
law by placing limits on the application of judicial oversight
to only psychotropic medications. Although there may be
psychotropic medications approved for use on dementia patients,
the author argues that psychotropic medications, which include
sedatives, such as Lorazepam, Alprazolam, and Temazepam, that
may increase confusion, aggression, paranoia, falls, and may be
habit forming and extremely dangerous for dementia patients, and
potentially misused by caretakers, should continue to be
authorized through the petition process.
Further, the author argues that this bill will provide a more
informed court process by providing more information to judges
than they currently receive when deciding whether to authorize
the administration of medication to a conservatee with dementia.
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As for the new requirement to provide the course of recommended
medication and whether it could be read to require multiple
petitions if a dosage or medication is changed to meet the needs
of the patient, the author has committed to working with AA and
other stakeholders to find an appropriate resolution of this
issue if clarification is necessary.
The Executive Committee of the Trusts and Estates Section of the
State Bar of California, in support, notes that "[t]his bill is
consistent with the policy that protections for the conservatee
are needed since 'the administration of psychotropic medications
has been, and can be, abused by caregivers, and, therefore,
granting powers to a conservator to authorize these medications
for the treatment of dementia requires the protections specified
in this section.' [Prob. Code Sec. 2356.5(a)(3).)]"
Further, the Judicial Council of California, in support, states
that "the council recognizes that conservatees with dementia are
very vulnerable individuals and we are mindful of the important
role that probate courts perform in helping to ensure their
proper care and treatment. Providing more complete information
regarding the proposed use of psychotropic medications for these
conservatees should help avoid abuse, thereby improving the
court's oversight and administration of these important cases."
Support : California Long-Term Care Ombudsman Association;
Consumer Attorneys of California; Executive Committee of the
Trusts and Estates Section of the State Bar of California;
Judicial Council of California; Law Office of Sally Bergman; Law
Offices of John S. Torii; National Association of Social Workers
- California Chapter; Office of the State Long-Term Care
Ombudsman; Tree of Life Health Advocates; 15 individuals
Opposition : None Known
HISTORY
Source : California Advocates for Nursing Home Reform
Related Pending Legislation : None Known
Prior Legislation :
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SB 238 (Mitchell, Chapter 534, Statutes of 2015) See Comment 2.
AB 436 (Jones, Chapter 197, Statutes of 2015) required the
court, upon granting or denying placement or medication
authority to a conservator, to either discharge the attorney
representing the conservatee or order continuation of the
representation, as specified.
AB 2747 (Committee on Judiciary, Chapter 913, Statutes of 2014),
among other things, deleted the placement of a dementia
conservatee in a locked and secured nursing facility which
specializes in the care and treatment of people with dementia
pursuant to Health and Safety Code Section 1569.691(c) to
reflect the repeal of that statute in 1998. AB 2747 also
corrected the cross-references to the California Code of
Regulations.
AB 167 (Harman, Chapter 32, Statutes of 2003), among other
things, provided the appropriate cross-reference for the
definition of a mental function deficit suffered by the
conservatee who lacks the capacity to give informed consent to
placement or medication.
AB 1172 (Kaloogian, Chapter 724, Statutes of 1997), among other
things, authorized a petition by the conservator for
authorization for placement of the conservatee or administration
of medication to be supported by a declaration of a licensed
psychologist within the scope of his or her licensure.
SB 1481 (Mello, Chapter 910, Statutes of 1996) See Background;
Comment 4.
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