BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 938|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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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:
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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.
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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;
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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
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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.
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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
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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
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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
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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
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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
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