BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  June 28, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          938 (Jackson) - As Amended May 31, 2016


                              As Proposed to be Amended


          SENATE VOTE:  39-0


          SUBJECT:  Conservatorships:  psychotropic medications


          KEY ISSUE:  IN ORDER TO BETTER PROTECT VULNERABLE CONSERVATEES  
          FROM INAPPROPRIATELY BEING PRESCRIBED POTENT PSYCHOTROPIC DRUGS  
          WITH POTENTIALLY SIGNIFICANT AND EVEN DEADLY HEALTH  
          CONSEQUENCES, SHOULD THE LIMITED COURT OVERSIGHT of prescribing  
          practices today BE IMPROVED? 

                                      SYNOPSIS


          If a person is unable to adequately provide for his or her  
          personal needs or incapable of managing his or her assets, a  
          probate court can establish a conservatorship.  Because of  
          concerns of mistreatment and misuse of potent psychotropic  
          medication, the Legislature created special judicial oversight  
          to protect conservatees with dementia from being unnecessarily  
          overmedicated.  Psychotropic medications, including  
          antipsychotics, antidepressants and psychostimulants, alter  








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          chemical levels in the brain which impact mood and behavior.  SB  
          1481 (Mello), Chapter 910, Statutes of 1996, established  
          protections to provide, within the scheme of a probate  
          conservatorship, the authority to place a person with dementia  
          in a secure perimeter facility and to authorize the  
          administration of dementia medications.  This bill, sponsored by  
          California Advocates for Nursing Home Reform, seeks to update  
          those 20-year old rules and provide better guidance to courts  
          when determining whether to authorize a conservator to give  
          psychotropic medication to a conservatee with dementia.  To  
          provide better guidance on whether psychotropic medication  
          should be administered to dementia conservatees, the bill  
          requires additional information to be provided in a physician  
          declaration filed in support of the conservator's petition to  
          authorize the administration of psychotropic medication, and  
          requires Judicial Council to update rules and forms to better  
          assist with the reporting.  The bill also revises existing law  
          to reflect the various dementia disorders that fall under the  
          new, broader diagnostic category of major neurocognitive  
          disorders and make various conforming changes.


          This bill is supported by groups and individuals, including the  
          Judicial Council, the Trusts & Estates Section of the State Bar,  
          Disability Rights California, and the California Long-Term Care  
          Ombudsman Association, who argue that the clarifications and  
          updates provided by this bill will better protect vulnerable  
          elderly individuals with dementia from being improperly  
          prescribed strong psychotropic medication without proper court  
          oversight.  The bill, as in print, is opposed by a coalition of  
          hospitals, health facilities and assisted living facilities, as  
          well the Alzheimer's Association and the Public Guardian, who  
          are concerned that the additional requirements in the bill could  
          result in harm to the very individuals the bill is trying to  
          protect by making it more difficult for them to get the  
          medication they need and will increase costs for courts,  
          families and conservatees.  The author has agreed to amend the  
          bill to, among other things, specifically provide that if a  
          court has granted a conservator the power to administer  








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          psychotropic medication to a conservatee, the conservator may,  
          consistent with the authority granted by the court, change or  
          adjust the psychotropic medications without further notice or  
          approval by the court, as provided.  This should significantly  
          reduce concerns about having to go back to court for each dose  
          or medication change, thus easing concerns about timely access  
          to medication, clogged courts and higher costs for conservatees.  
           It is unclear if these amendments change opponents' position on  
          the bill.


          SUMMARY:  Requires additional oversight before psychotropic  
          medication can be prescribed to a conservatee with a major  
          neurocognitive disorder (MNCD, generally dementia).   
          Specifically, this bill:  


          1)Defines MNCDs as defined in the latest edition of the  
            diagnostic and Statistics Manual of Mental Disorders.   
            Legislative findings define MNCDs to include Alzheimer's  
            disease, vascular dementia, dementia with Lewy bodies, and  
            Parkinson dementia.
          2)Defines psychotropic medication, for purposes of this bill, as  
            including, but not limited to, anxiolytic agents,  
            antidepressants, mood stabilizers, antipsychotic medications,  
            hypnotics and psychostimulants. "Psychotropic medications"  
            does not include medications approved by the Food and Drug  
            Administration for the treatment of MNCDs or anti-Parkinson  
            agents.


          3)Clarifies a conservator's authority to place a conservatee  
            with a MNCD in a secured perimeter residential facility for  
            the elderly (as opposed to a locked facility), provided it is  
            the least restrictive placement appropriate for the  
            conservatee's needs.  Deletes the prohibition against  
            placement of a conservatee in a mental health rehabilitation  
            center or institution for mental disease, as specified.









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          4)Requires that before a conservator can authorize the  
            administration of psychotropic medication to a conservatee, a  
            court must make certain specified findings, already in  
            existing law, by clear and convincing evidence.  Requires that  
            the physician's supporting declaration, required for the  
            conservator's petition requesting authority to administer  
            psychotropic medication in existing law, must additionally  
            contain:


             a)   A description of the conservatee's diagnosis and  
               behavior;
             b)   The recommended course of medication;


             c)   A description of the treatments and medications that  
               have been used or proposed, less invasive treatments or  
               medications used or proposed, and why these treatments or  
               medications have not or would not be effective in treating  
               the conservatee;


             d)   The expected effects of the proposed medication on the  
               conservatee's health and treatment plan, including how the  
               medication is expected to improve the conservatee's  
               symptoms;


             e)   The potential side effects of the proposed medication,  
               include any black box warnings; and


             f)   Whether the conservatee and his or her attorney have had  
               an opportunity to provide input on the proposed  
               medications.


          5)Provides that, if a court has granted a conservator the power  








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            to administer psychotropic medication to a conservatee, the  
            conservator may, consistent with the authority granted by the  
            court, change or adjust the psychotropic medications without  
            further notice or approval by the court, provided the  
            conservator has received information about the risks, benefits  
            and alternatives before making the change.
          6)Provides that, if a court has granted a conservator the power  
            to administer psychotropic medication to a conservatee, the  
            court shall review the authority when periodically reviewing  
            the conservatorship as required by law.


          7)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 to 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.


          8)Provides that the requirements of this legislation do not  
            apply to conservatees who are prescribed psychotropic  
            medication by a physician in an acute care hospital or for  
            purposes of diagnostic or therapeutic treatment not directly  
            related to the MNCD, including, but not limited to, sedation  
            prior to an invasive procedure or nausea prevention or relief,  
            and instead, the conservator may make medical decisions if the  
            conservatee lacks capacity, as provided.   


          9)Revises legislative findings and declarations regarding MNCDs.


          EXISTING LAW: 


          1)Allows the court to appoint a conservator to act on behalf of  
            a person who is unable to adequately provide for his or her  








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            personal needs (a conservator of the person) or incapable of  
            managing his or her property or other financial assets (a  
            conservator of the estate).  (Probate Code Section 1800 et  
            seq.  Unless stated otherwise, all further statutory  
            references are to that code.)


          2)Specifies the powers and duties of a conservator and the  
            powers and rights retained by a conservatee subject to a  
            conservatorship.  (Section 2350 et seq.)


          3)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.  (Section 2352  
            (b).)  
          4)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.  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.  (Section 2354.)


          5)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.  (Section 2355.) 










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          6)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, 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, as provided.  (Section  
            2357.)  


          7)Makes legislative findings that, among other things 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.  (Section 2356.5 (a).)


          8)Allows a conservator to place a conservatee in a secured  
            perimeter residential care facility for the elderly, upon a  
            court making specified findings, by clear and convincing  
            evidence, as provided.  (Section 2356.5 (b).)


          9)Allows a conservator to authorize the administration of  
            medications appropriate for the care and treatment of  
            dementia, upon a court making specified findings, by clear and  
            convincing evidence, as provided.  (Section 2356.5 (c).)


          10)Prohibits placement of a conservatee in a mental health  
            rehabilitation center or in an institution for mental disease,  
            as specified.  (Section 2356.5 (e).)


          11)Requires the conservatee, at a hearing to either place the  
            conservatee in a secured perimeter residential care facility  
            or allow for the administration of medication appropriate for  
            the care and treatment of dementia, to be represented by an  
            attorney, as specified.  (Section 2356.5 (f).)









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          12)Requires the court investigator annually to investigate and  
            report to the court every two years, as specified, if the  
            conservator is authorized to place the conservatee in a  
            secured perimeter residential care facility or administer  
            medication appropriate for the care and treatment of dementia,  
            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.  (Section 2356.5  
            (g).)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  If a person is unable to adequately provide for his  
          or her personal needs or incapable of managing his or her  
          assets, a probate court can establish a conservatorship.   
          Because of concerns of mistreatment and misuse of potent  
          psychotropic medication on those with dementia, the Legislature  
          created special judicial oversight to protect conservatees with  
          dementia from being unnecessarily overmedicated.  Psychotropic  
          medications, including antipsychotics, antidepressants and  
          psychostimulants, alter chemical levels in the brain which  
          impact mood and behavior.  SB 1481 (Mello), Chapter 910,  
          Statutes of 1996, established protections to provide, within the  
          scheme of a probate conservatorship, the authority to place a  
          person with dementia in a secure facility and to authorize the  
          administration of dementia medications.  This bill seeks to  
          update those 20-year old rules and provide better guidance to  
          courts when determining whether to authorize a conservator to  
          give psychotropic medication to a conservatee with dementia.  To  
          provide better guidance on whether psychotropic medication  
          should be administered to dementia conservatees, the bill  
          requires additional information to be provided in a physician  
          declaration filed in support of the conservator's petition to  
          authorize the administration of psychotropic medication, and  
          requires Judicial Council to update rules and forms to better  








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          assist with the reporting.  The bill also revises existing law  
          to reflect the various dementia disorders that fall under the  
          new, broader diagnostic category of MNCDs and make various  
          conforming changes.


          In support of the bill, the sponsor, California Advocates for  
          Nursing Home Reform (CANHR), writes:


            The purpose of enacting [SB 1481] was to address the  
            involuntary administration of medication (and locked door  
            residential placement) for people with dementia by  
            establishing a protective review and authorization process  
            within the context of a conservatorship.  At the time,  
            psychotropic drugs were known to be used inappropriately,  
            particularly in institutional residential settings like  
            nursing homes, but stood as the primary "treatment" option for  
            people with dementia who presented behavioral challenges.


            Since the law was created, studies have shown that  
            psychotropic drugs are a particularly poor treatment option  
            for people with dementia.  They often exacerbate rather than  
            ameliorate symptoms, have disabling side effects, and in some  
            cases substantially increase mortality rates.  Most notably,  
            psychotropic drugs for people with dementia do not resolve an  
            underlying mental health condition; instead, they mask the  
            real problems such as distress, pain, or discomfort that have  
            been expressed through behaviors.  In short, psychotropic  
            drugs for people with dementia typically cause more problems  
            than they solve.


          The Judicial Council writes of its support for this bill, which  
          "seeks to strengthen the law governing the use of psychotropic  
          medications for persons subject to dementia conservatorships.   
          The council recognizes that conservatees with dementia are very  
          vulnerable individuals and we are mindful of the important role  








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          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."   



          Adds the National Association of Social Workers, California  
          Chapter: "It has been shown that psychotropic drugs can be very  
          dangerous for elderly patients with dementia.  Unfortunately,  
          these drugs are widely used and it has alerted advocates to the  
          need for reform. . . .  This bill will help to protect seniors  
          from being wrongly or over[-]medicated."


          Types of Conservatorships:  A probate judge may appoint a  
          conservator to act on behalf of a person who is unable to  
          adequately provide for his or her personal needs (a "conservator  
          of the person") or incapable of managing his or her property or  
          other financial assets (a "conservator of the estate").   
          (Section 1800 et seq.)  The Probate Code also offers a "limited  
          conservatorship" for "developmentally disabled adults," under  
          which the court limits the conservator's power so as to preserve  
          the maximum amount of independence and self-sufficiency for the  
          conservatee.  (Section 1801 (d).)  In addition, the  
          Lanterman-Petris-Short (LPS) Act created a special adult  
          conservatorship for persons who were considered "gravely  
          disabled" by reason of mental illness or chronic alcoholism and  
          subject to confinement in a locked psychiatric facility and  
          administration of psychotropic medication, subject to more  
          extensive oversight than a probate conservatorship.  (Welfare &  
          Institutions Code Section 5330 et seq.)  


          Conservatorship with Special Dementia Powers:  In 1996, the  
          Legislature created an alternative to the LPS conservatorship  
          for people with dementia.  AB 1481 (Mellow), 1996, allows a  
          conservator under a Probate Code conservatorship to seek special  








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          powers to confine a conservatee with dementia in a "secured  
          perimeter" residential care facility and to administer  
          medication for dementia if various conditions, designed to  
          protect the conservatee, are met.  These conditions include the  
          appointment of an attorney to represent the conservatee during  
          the court's consideration of the conservator's petition for the  
          dementia powers.  While the legislative intent language to the  
          statute discusses psychotropic medication and notes that these  
          drugs have 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" (Section 2356.5 (a)(3)),  
          the statutory mandate for court oversight uses the term  
          "medications appropriate for the care and treatment of  
          dementia."


          There are significant risks to treating dementia patients with  
          certain psychotropic medication.  Beginning in 2005 and expanded  
          in 2008, 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.  A typical black box warning looks like  
          this:





          The FDA website warns health care professionals against  
          prescribing antipsychotics to patients with dementia:


             "    Elderly patients with dementia-related psychosis treated  
               with conventional or atypical antipsychotic drugs are at an  
               increased risk of death.
             "    Antipsychotic drugs are not approved for the treatment  
               of dementia-related psychosis.  Furthermore, there is no  








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               approved drug for the treatment of dementia-related  
               psychosis.  Healthcare professionals should consider other  
               management options.
             "    Physicians who prescribe antipsychotics to elderly  
               patients with dementia-related psychosis should discuss  
               this risk of increased mortality with their patients,  
               patients' families, and caregivers.  (FDA, Information for  
               Healthcare Professionals:  Conventional Antipsychotics  
               (http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInf 
               ormationforPatientsandProviders/ucm124830.htm).)


          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).)  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  








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          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.)


          According to the sponsor, other types of psychotropic  
          medication, beyond antipsychotics, also pose significant risk  
          for those with dementia:  "Antianxiety and hypnotic drugs have  
          proven quite dangerous for elderly people with dementia and  
          often exacerbate, rather than alleviate, anxiety and dementia."   
          (Footnote omitted.)  CANHR states that even antidepressants have  
          risks of harm to people with dementia.  And, even assuming the  
          risks are reasonable, CAHNR finds that the benefits of these  
          drugs on those with dementia are minimal:


               The benefits -- if they can be called benefits -- in using  
               psychotropic drugs for people with dementia are sedation  
               and submission.  The drugs increase fatigue and decrease  
               activity, thereby rendering a patient more "manageable"  
               while often incapacitating them.  The subsequent incapacity  
               and decline in physical activity increases the patient's  
               suseptibility to devastating falls, pressure sores, weight,  
               and infection.  These results are the main reason why  
               psychotropic drugs lead to such negative clinical outcomes  
               for elderly people with dementia.


          This bill is similar to legislation last year that protected  
          foster children from overmedication with psychotropic  
          medication.  In response to growing concerns that psychotropic  
          medications have been relied on by California's child welfare  
          and children's mental health systems as a means of controlling,  
          instead of treating, youth who suffer from trauma-related  
          behavioral health challenges, the Legislature last year passed a  
          package of bills designed to reduce the use of psychotropic  
          medication in this most vulnerable population.  One bill in that  
          package, SB 238 (Mitchell and Beall), Chapter 534, Statutes of  
          2015, provides, very similarly to this bill, protections and  








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          oversight over psychotropic medication by requiring the Judicial  
          Council to update forms and rules to ensure improved and  
          regularly updated information is solicited from, and received  
          by, appropriate individuals and entities regarding use of  
          psychotropic medication.  While conservatees with dementia are  
          very different from foster children suffering trauma, both are  
          extremely vulnerable and under the watchful oversight of the  
          court. 


          Additional physician declaration requirements.  Existing law  
          requires a conservator's petition for authorization to place a  
          conservatee with dementia in a secure residential care facility  
          for the elderly or to authorize the administration of  
          medications for dementia to be supported by a physician's or  
          psychologist's declaration.  In order to obtain authorization  
          for the administration of psychotropic medications, the  
          mandatory Judicial Council 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 first requires that a declaration on medication can  
          only be provided by a physician (this corrects an ambiguity in  
          current law and is necessary for scope of practice issues, since  
          psychologists cannot prescribe medication).  This bill then  
          expands the information to be provided by the physician to  
          include:


           A description of the conservatee's diagnosis and behavior; 
           The recommended course of medication;
           A description of the pharmacological and nonpharmacological  








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            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.


          In accordance with the original intent of existing law to  
          protect conservatees with dementia from overmedication by  
          caregivers, the author argues that these new reporting  
          requirements, better defines the criteria upon which a court  
          would determine whether a conservator should have the ability to  
          authorize the administration of psychotropic medications to a  
          conservatee with dementia.


          In addition to that list, the bill also requires 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.  Revised forms  
          should help simplify the process and reduce workload for both  
          physicians and the court.


          Placement of conservatees with dementia in facilities.  This  
          bill strikes 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.  It  








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          appears that when the original law was drafted in 1996, this  
          prohibition was included 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.  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).  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.  Further, the removal  
          of the prohibition on placing a conservatee with dementia in a  
          mental health rehabilitation 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.


          This bill also cleans-up the incorrect statutory reference to  
          "locked facility," and instead refers to the placement of  
          dementia patients in "secured perimeter" facilities, as opposed  
          to locked facilities.  


          Opposition to bill in print concerned that it could jeopardize  
          patient access to appropriate medical care, clog courts and  
          result in higher costs.  The California Assisted Living  
          Association, the California Association of Health Facilities,  
          the California Council of the Alzheimer's Association, the  
          California Hospital Association, the California Psychiatric  
          Association and LeadingAge California jointly oppose the bill in  
          print because they are concerned that the bill, while  
          well-intentioned, will "jeopardize patients' access to timely  
          and appropriate medical care, clog the court system, and result  








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          in higher medical and legal costs for these patients and their  
          families."  The opponents add:


            SB 938 (Jackson) places a huge new burden on patients with a  
            MNCD who have a conservator, their families, their physicians  
            and nurses, and the court system.  This bill would require  
            such patients to go to court for judicial approval each time a  
            physician orders a new or different antidepressant, sleeping  
            pill, anti-anxiety medication, antipsychotic, or other  
            psychotherapeutic drug.  The patient's medical treatment would  
            be delayed for the time needed to prepare the extensive  
            paperwork for the judge that is required by this bill, get on  
            the judge's calendar, and obtain a judicial decision.   
            Consider the situation where a woman with Alzheimer's disease  
            learns that her husband has passed away, and she is so  
            distraught she cannot sleep.  Her physician could not order a  
            sleeping pill or anti-anxiety medication - even with the  
            conservator's approval - without going to court first.  This  
            is simply bad patient care.


          The State Association of Public Administrators, Public Guardian,  
          and Public Conservators concurs with the other opponents and  
          believes that this bill will make it more difficult for the  
          government's conservators of last resort to do their job and  
          could result in people who legitimately need psychotropic  
          medication being "denied proper treatment."


          In response to these concerns, the author has agreed to amend  
          the bill to specifically provide that if a court has granted a  
          conservator the power to administer psychotropic medication to a  
          conservatee, the conservator may, consistent with the authority  
          granted by the court, change or adjust the psychotropic  
          medications without further notice or approval by the court,  
          provided the conservator has received information about the  
          risks, benefits and alternatives before making the change.  This  
          should significantly reduce concerns about having to go back to  








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          court for each dose or medication change, thus easing issues  
          about timely access to medication, clogged courts and higher  
          costs for conservatees.  


          The author's amendments also address concerns raised by  
          hospitals of the need to prescribe drugs both in emergency and  
          nonemergency settings by specifically exempting psychotropic  
          medication given in an acute care hospital and for purposes of  
          diagnostic or therapeutic treatment not directly relates to a  
          MNCD, such as sedation prior to an invasive treatment or nausea  
          relief.  The amendments also clean-up a scope of practice  
          problems with existing law that seemed to imply that  
          psychologists could prescribe psychotropic medication, and  
          clarifies that courts, in their annual or bi-annual review of  
          conservatorships, should review the powers given to conservators  
          to place a conservatee with dementia in a secure perimeter  
          facility or authorize the administration of psychotropic  
          medication.  


          What the amendments do not do is limit the bill's application to  
          just antipsychotic drugs that come with the FDA's black box,  
          risk of death, warning.  The opponents argue that antipsychotic  
          drugs are the riskiest drugs for those with dementia and thus  
          increased court oversight may be warranted for them, but not  
          necessarily for the broader list of psychotropic drugs.  The  
          sponsor counters that existing law already applies to all  
          psychotropic medication and that limiting this bill to just  
          antipsychotic drugs would actually reduce the protections  
          provided by existing law.  While existing law contains  
          legislative intent on the dangers of psychotropic medication,  
          the actual language used in the regulating provision is  
          "medications appropriate for the care and treatment of  
          dementia."  The Judicial Council, in its required court form  
          (GC-335), combines both language and requires conservators today  
          to seek court approval for administration of "psychotropic  
          medications appropriate to the care of dementia."  Moreover, the  
          Trusts & Estates Section of the Bar, a supporter, confirms its  








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          understanding that psychotropic medication is already included  
          in existing law and this bill simply clarifies that fact and  
          "provides a mechanism for the court to ensure that an  
          'evaluation of the risks,' a considerations of the 'reasonable  
          alternative treatment and risks, and why the health professional  
          is recommending the particular treatment' have in fact been  
          considered by the conservator prior to the grant of authority to  
          authorize the use of such psychotropic medications."  Thus, this  
          bill helps clears up any possible ambiguity in existing law,  
          consistent with legislative intent, and provides clear direction  
          of the need to have court oversight of psychotropic medication  
          for this very vulnerable population.  


          It is unclear if these latest amendments change the opponents'  
          position on the bill, but they do go a long way to addressing  
          the issues set forth in their letters of opposition.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Advocates for Nursing Home Reform (sponsor)


          California Long-Term Care Ombudsman Association


          Consumer Attorneys of California


          Disability Rights California










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          Judicial Council of California


          National Association of Social Workers - California Chapter


          Trusts and Estates Section of the State Bar of California


          Some individuals





          Opposition (to the bill in print)


          California Assisted Living Association


          California Association of Health Facilities


          California Council of the Alzheimer's Association


          California Hospital Association


          California Psychiatric Association


          LeadingAge California


          State Association of Public Administrators, Public Guardian, and  
          Public Conservators









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          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334