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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