BILL ANALYSIS Ó
SB 938
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SENATE THIRD READING
SB
938 (Jackson)
As Amended August 4, 2016
Majority vote
SENATE VOTE: 39-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |18-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
| | |Chang, Daly, Eggman, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
SB 938
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| | |Holden, Obernolte, | |
| | |Quirk, Santiago, | |
| | |Wagner, Weber, Wood, | |
| | |Chau | |
| | | | |
| | | | |
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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. States that the secured setting is the
choice of the conservator, as specified. 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 (PROB) 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. (PROB 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. (PROB 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. (PROB 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. (PROB 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. (PROB
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. (PROB 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. (PROB 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. (PROB 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. (PROB 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. (PROB 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. (PROB Section
2356.5 (g).)
FISCAL EFFECT: According to the Assembly Appropriation
Committee:
1)Minor one-time costs to the Judicial Council for additional
workload likely in the range of $50,000 to $70,000 General
Fund (GF) to adopt rules of court, develop appropriate forms,
and provide the specified guidance on how to evaluate requests
for authorization.
2)Unknown potential increase in court workload (GF) 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.
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
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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
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.
Analysis Prepared by:
Leora Gershenzon / JUD. / (916) 319-2334 FN:
0003818