BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 938| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 938 Author: Jackson (D), et al. Amended: 5/31/16 Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 3/29/16 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16 AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen SUBJECT: Conservatorships: psychotropic drugs SOURCE: California Advocates for Nursing Home Reform DIGEST: This bill requires 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 requires 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 updates the term "dementia" to refer instead to major or mild neurocognitive disorders and make various revisions to the codified legislative intent language associated with conservator powers regarding conservatees with dementia. ANALYSIS: SB 938 Page 2 Existing law: 1) Specifies the powers and duties of a conservator and the powers and rights retained by a conservatee subject to a conservatorship. 2) 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. 3) 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. 4) Establishes that after obtaining a court order specifically authorizing medical treatment, the conservator is authorized to require the conservatee to receive medical treatment, whether or not the conservatee consents to the treatment. 5) Authorizes, in an emergency case in which medical treatment is required, 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 (a) the treatment is required for the alleviation of severe pain or (b) the conservatee has a medical condition which, if not immediately diagnosed and treated, will lead to serious disability or death. SB 938 Page 3 6) 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 if the conservatee has been adjudicated to lack the capacity to make health care decisions. The conservator is required 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. 7) Prohibits, subject to the provisions of a valid and effective advance health care directive, 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. 8) Authorizes the conservator to petition the court for an order authorizing medical treatment and authorizing the conservator to consent on behalf of the conservatee to medical treatment 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. That petition is required 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: 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; SB 938 Page 4 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. 1) 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 upon the filing of that petition unless an attorney is already appointed. 2) 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. 3) 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. 4) 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 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 SB 938 Page 5 the recommended course of treatment. 1) 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. 1) Requires the conservatee to be represented by an attorney, as specified, and, upon granting or denying authority to a conservator 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. 2) Requires the conservatee to be produced at the hearing unless excused, as specified, and requires the petition for authorization 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 findings required to be made for any power requested, except that the psychologist has at least two years of experience in diagnosing dementia. 3) Authorizes the petition 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. SB 938 Page 6 4) 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. 5) 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. And, 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. 6) 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. This bill: 1) Codifies legislative findings and declarations that: Replaces the term "dementia" with "major or mild neurocognitive disorders (MNCDs)," and lists common forms of MNCDs as Alzheimer's disease, vascular dementia, dementia with Lewy bodies, Parkinson dementia, frontotemporal dementia, and mixed dementia; Psychotropic medications can be misused for people with SB 938 Page 7 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 (FDA) 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. 1) Deletes the provision prohibiting placement of a conservatee in a mental health rehabilitation center or institution for mental disease, as specified. 2) Requires 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, including whether the conservatee has a major neurocognitive disorder or a mild neurocognitive disorder, and a description of the conservatee's 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 conservatee's symptoms; A description of the potential side effects of the recommended medication, including any black box warning issued by the FDA as defined in Section 201.57(c)(1) of Title 21 of The Code of Federal Regulations; and Whether the conservatee and his or her attorney have had an opportunity to provide input on the recommended SB 938 Page 8 medications. 1) Requires, on or before July 1, 2017, the Judicial Council to adopt rules of court and develop appropriate forms for the implementation of this 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. 2) Specifies that for purposes of this section, "psychotropic medications" includes, but is not limited to, anxiolytic agents, antidepressants, mood stabilizers, antipsychotic medications, anti-Parkinson agents, hypnotics, and psychostimulants. This bill further specifies that "psychotropic medications" does not include medications approved by the FDA for the treatment of an MNCD. 3) Makes other technical or conforming revisions. Background 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. 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. 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 SB 938 Page 9 physician and staff training and education, and the number of staff at the nursing home. 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. 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 with Lewy bodies, Parkinson dementia, frontotemporal dementia, and mixed dementia. Comments 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. FISCAL EFFECT: Appropriation: No Fiscal SB 938 Page 10 Com.:YesLocal: No According to the Senate Appropriations Committee, there are one-time costs to the Judicial Council for additional workload potentially in excess of $50,000 (General Fund) to adopt rules of court, develop appropriate forms, and provide the specified guidance on how to evaluate requests for authorization. There are also potentially significant increases in court workload (General Fund) for additional petitions to the court requesting authorization for the administration of medications under the category of "psychotropic medications" for the expanded population of conservatees with MNCDs. SUPPORT: (Verified5/30/16) California Advocates for Nursing Home Reform (source) 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: (Verified5/30/16) None received Prepared by:Margie Estrada / JUD. / (916) 651-4113 5/31/16 21:58:32 SB 938 Page 11 **** END ****