BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 938


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          SENATE THIRD READING


          SB  
          938 (Jackson)


          As Amended  August 19, 2016


          Majority vote


          SENATE VOTE:  39-0


           -------------------------------------------------------------------- 
          |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, Holden,        |                     |
          |                |     |Obernolte, Quirk,      |                     |
          |                |     |Santiago, Wagner,      |                     |








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          |                |     |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.


          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  








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            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  
            to administer psychotropic medication to a conservatee, the  
            conservator may, consistent with the authority granted by the  
            court to administer psychotropic medications for purposes of  
            therapeutic treatment directly related to a MNCD, change or  
            adjust the psychotropic medications without further notice or  
            approval by the court, provided the conservator has received  








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            information about the risks, benefits and nonpharmacological  
            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  
            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  








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            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.) 


          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  








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            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).


          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  








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            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  
          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  








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          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, this 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.  This 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:  
          0004537