BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    SB 955    
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          |AUTHOR:        |Beall                                          |
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          |VERSION:       |March 28, 2016                                 |
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          |HEARING DATE:  |March 30, 2016 |               |               |
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          |CONSULTANT:    |Reyes Diaz                                     |
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           SUBJECT  :  State hospital commitment: compassionate release

           SUMMARY  :  Requires the Director of the Department of State Hospitals  
          (DSH) to release a patient from confinement, parole, or  
          outpatient status if a physician employed by DSH makes a  
          determination, and the court agrees, that the patient meets the  
          same criteria of being terminally ill or permanently medically  
          incapacitated that currently permits the compassionate release  
          of state prisoners.

          Existing law:
          1)Requires a court to commit a person to a state hospital,  
            public or private treatment facility, or place him or her on  
            outpatient status if he or she is found to be not guilty by  
            reason of insanity.

          2)Requires the Director of DSH to notify the Board of Parole  
            Hearings (BPH) within the Department of Corrections and  
            Rehabilitation (CDCR), and requires DSH to discontinue  
            treating a parolee, if a prisoner's severe mental health  
            disorder is put into remission during the parole period and  
            can be kept in remission.
          
          3)Authorizes the release of a prisoner from state prison, known  
            as "compassionate release," if the court finds that the  
            prisoner is terminally ill with an incurable condition caused  
            by an illness or disease that would result in death within six  
            months or is permanently medically incapacitated, as  
            determined by a physician employed by CDCR, and the prisoner's  
            release does not pose a threat to public safety.
          
          This bill:
          1)Extends compassionate release, which currently permits the  







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            release of state prisoners who are terminally ill or  
            permanently medically incapacitated, to DSH patients. Gives  
            the court sole discretion to dismiss a DSH patient's  
            commitment for compassionate release when specified criteria  
            are met.

          2)Requires a physician employed by DSH to notify the DSH medical  
            director and the patient advocate when a prognosis is made of  
            a patient being eligible for compassionate release. Requires  
            the medical director to notify the DSH Director if he or she  
            concurs with the prognosis. Requires the DSH Director or a  
            designee to notify the patient of the discharge procedures and  
            to obtain the patient's consent for discharge. Requires the  
            DSH Director or designee to arrange for a patient to designate  
            a family member, other outside agent, an emergency contact, or  
            the patient advocate to be notified of the patient's medical  
            condition, prognosis, and release procedures, and to provide  
            those individuals with updated information throughout the  
            release process.

          3)Allows a patient or his or her family member or designee to  
            contact the DSH medical director or director of the state  
            hospital where the patient is located, or the DSH Director, to  
            request consideration for a recommendation from the DSH  
            Director to the court that the patient's commitment be  
            dismissed for compassionate release.

          4)Requires the court to hold a noticed hearing within 10 days of  
            receiving a recommendation to consider whether a patient's  
            commitment should be dismissed and the patient released.  
            Requires a recommendation to the court to include at least the  
            following: one medical evaluation, a discharge plan, a  
            post-release plan for the relocation and treatment of the  
            patient, and the findings by the court that the patient's  
            release does not pose a threat to public safety. Requires the  
            hearing to be held before the same court that originally  
            committed the patient, if possible.

          5)Requires the court to order the DSH medical director to send  
            copies of all medical records reviewed in developing the  
            recommendation to the district attorney of the county from  
            which the patient was committed and to the public defender of  
            the county from which the patient was committed, or the  
            patient's private attorney, if available.









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          6)Requires the DSH Director to release a patient from  
            confinement, parole, or outpatient status if a physician  
            employed by DSH makes a determination, and the court agrees,  
            that the patient meets the following criteria:

                  a)        The patient is terminally ill with an  
                    incurable condition caused by an illness or disease  
                    that would likely produce death within six months; or
                  b)        The patient is permanently medically  
                    incapacitated and requires 24-hour total care, and the  
                    medical director responsible for the patient's care  
                    and the DSH Director both certify that the patient is  
                    incapable of receiving mental health treatment.
                  c)        The release conditions in a) or b) above under  
                    which the patient would be released or receive  
                    treatment do not pose a threat to public safety.

          7)Requires DSH to release a patient, if the court, pursuant to  
            4) above, approves the recommendation for dismissal and  
            release, within 72 hours of receipt of the court's order  
            unless a longer time period is requested by the director and  
            approved by the court.

          8)Requires the DSH Director or a designee to ensure that upon  
            release the patient or the patient's representative has the  
            following in his or her possession: a discharge plan,  
            discharge medical summary, medical records, identification,  
            all necessary medications, and any property belonging to the  
            patient. Requires any additional records to be sent to the  
            patient's forwarding address after discharge.

          9)Provides that these provisions do not preclude a patient who  
            is granted compassionate release from being committed to a  
            state hospital under the same commitment or another  
            commitment.

           FISCAL  
          EFFECT  :  This bill has not been analyzed by a fiscal committee.

           COMMENTS  :
          1)Author's statement. According to the author, current law  
            provides for a compassionate release program for state prison  
            inmates. The program allows inmates who have six months left  
            to live, including those receiving treatment at a state  
            hospital, to be discharged to spend their remaining time with  








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            family. However, other DSH patients, such as those who are Not  
            Guilty by Reason of Insanity or Incompetent to Stand Trial,  
            are not eligible for such compassionate release. This creates  
            a situation in which a patient can be in a coma and unable to  
            receive treatment but cannot be released to a more palliative  
            care setting closer to their loved ones. These patients also  
            keep state hospital beds from being used to treat patients  
            that could benefit from treatment. Additionally, patients  
            released from DSH facilities are eligible for federal matching  
            funds for their treatment. SB 955 would create a compassionate  
            release program for all DSH patients regardless of commitment  
            reason. Patients would be required to meet specific criteria,  
            and petitions for compassionate release would be  
            court-approved. SB 955 will provide a humane, less restrictive  
            environment for terminally ill and medically incapacitated  
            patients and free up much-needed state hospital beds for  
            patients who are currently waiting for placement and could  
            benefit from treatment.
            
          2)DSH. DSH oversees five state hospitals (Atascadero, Coalinga,  
            Metropolitan [in Los Angeles County], Napa, and Patton) and  
            three psychiatric programs located in state prisons. Through  
            an interagency agreement with the CDCR, DSH also treats  
            inmates at prisons in Vacaville, Salinas Valley, and Stockton.  
            According to DSH's Web site, as of 2015, DSH serves nearly  
            7,000 patients who are mandated for treatment by either a  
            criminal or civil court judge. These patients are sent to DSH  
            through the criminal court system and have committed or have  
            been accused of committing crimes linked to their mental  
            illness. (According to a 2015 Legislative Analyst's Office  
            [LAO] budget report, 92% of current DSH patients are forensic  
            commitments.) In addition to forensic commitments, DSH treats  
            patients who have been classified by a judge or jury as  
            sexually violent predators. They are committed to DSH for  
            treatment until a judge deems they are no longer a threat to  
            the community. The remainder of the DSH's population has been  
            committed in civil court for being a danger to themselves or  
            others. These patients are commonly referred to as  
            Lanterman-Petris-Short (LPS) commitments. DSH also works with  
            city and county government on a variety of public safety  
            issues. Several county mental health departments purchase beds  
            at state hospitals for LPS patients. 

            According to the LAO report, DSH's population has increased  
            over recent years, with a growth rate of about 14% since  








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            Fiscal Year 2010-11. Even though the state provided additional  
            resources to DSH, and the department was able to add nearly  
            250 additional beds, DSH still had a patient waitlist of  
            nearly 550 individuals as of January 2015. According to the  
            LAO, having such a long waitlist for placement in a DSH  
            facility delays access to care, and poses other legal issues.

            The federal Substance Abuse and Mental Health Services  
            Administration's Web site states that adults who had a mental  
            illness in the past year have higher rates of certain physical  
            illnesses than those not experiencing mental illness,  
            including increased rates of high blood pressure, asthma,  
            diabetes, heart disease, and stroke. The National Institute of  
            Health's Web site states that the lifespan of people with  
            severe mental illness is shorter compared to the general  
            population. This excess mortality is mainly due to physical  
            illness as a result of individual lifestyle choices, side  
            effects of psychotropic medications, and disparities in health  
            care access, utilization, and provision, which contribute to  
            poor physical health outcomes.

          3)Concerns over the aging and infirm. A May 2015 article  
            published on The Marshall Project's Web site states that the  
            costs of holding elderly and infirm inmates, who often have  
            multiple health problems, is extraordinarily high and getting  
            higher, and prison officials don't or can't adequately care  
            for them. The article cites interviews with inmates who state  
            they have had heart attacks, surgeries, rely on multiple daily  
            medications, and have a number of chronic diseases, some of  
            which require high-cost medications. The Office of the  
            Inspector General argues that prisons are not only caring for  
            an expensive population but also one that will more than  
            likely not commit more crimes if they were to be released,  
            given their medical conditions. Also cited in the article are  
            cases in which inmates can no longer perform daily activities  
            on their own; are unable to navigate prison quarters; and are  
            forced to leave wheelchairs outside of their small cells.  

          4)Double referral. Should this bill pass out of this Committee,  
            it will be referred to the Committee on Public Safety. 

          5)Related legislation. SB 6 (Galgiani), would exempt from  
            medical parole eligibility and compassionate release  
            eligibility a prisoner who was convicted of the first degree  
            murder of a peace officer or a person who had been a peace  








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            officer, as provided. SB 6 is pending in the Assembly.

          6)Prior legislation. SB 1462 (Leno, Chapter 837, Statutes of  
            2012), authorized a sheriff to release a prisoner from a  
            county jail after conferring with a jail physician if the  
            sheriff determines the prisoner would not reasonably pose a  
            threat to public safety and the prisoner is deemed to have a  
            life expectancy of six months or less. Authorized the court,  
            at the request of a sheriff, to grant medical probation to any  
            prisoner sentenced to a county jail who is physically  
            incapacitated, as specified, if that incapacitation did not  
            exist at the time of sentencing, or to a prisoner who requires  
            acute long-term inpatient rehabilitation services. Before a  
            prisoner's compassionate release or release to medical  
            probation, the sheriff is required to secure a placement  
            option for the prisoner, as specified. 

            SB 1399 (Leno, Chapter 405, Statutes of 2010), provided that  
            any prisoner determined to be medically incapacitated with a  
            medical condition that renders the prisoner permanently unable  
            to perform activities of basic daily living, and results in  
            the prisoner requiring 24-hour care, and that incapacitation  
            did not exist at the time of sentencing, is granted medical  
            parole, if BPH determines that the conditions under which the  
            prisoner would be released would not reasonably pose a threat  
            to public safety.

            AB 1539 (Krekorian, Chapter 740, Statutes of 2007), extended  
            the criteria for compassionate release to a state prisoner if  
            he or she is permanently medically incapacitated and the  
            release is deemed not to threaten public safety.

            AB 29 (Villaraigosa, Chapter 751, Statutes of 1997),  
            established a procedure, known as "compassionate release,"  
            whereby the Director of Corrections (now CDCR) or the Board of  
            Prison Terms (now BPH), or both, could recommend to the court  
            that a prisoner's sentence be recalled, and the court may  
            recall the sentence if the court finds that the prisoner is  
            terminally ill and the conditions under which the prisoner  
            would be released or receive treatment do not pose a threat to  
            public safety.

          7)Support. Supporters argue that keeping terminally ill or  
            permanently medically incapacitated patients in state  
            hospitals prevents health care workers from providing  








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            assistance to patients who could benefit from treatment.  
            Supporters state that patients that meet the criteria for  
            compassionate release do not pose a threat to public safety,  
            can no longer benefit from mental health treatment, and should  
            live out the rest of their lives in a less restrictive  
            environment. Disability Rights California states that  
            compassionate release allows a person to live out their final  
            days in the community, and provisions in this bill, such as  
            patient consent and an adequate discharge plan, are critical.

          8)Technical amendments. One of the provisions of this bill  
            delineates what is required to be submitted to the court as  
            part of the compassionate release process. However, the way  
            this provision is drafted suggests that the court's own  
            findings must be submitted to the court, when the court has  
            yet to make a finding. The author may wish to accept the  
            following amendments to clarify that it is the physician's and  
            medical director's determination that is required as part of  
            the recommendation to the court:
          
            In SEC. 3, Section 4146:

            (c) A recommendation for dismissal submitted to the court  
            shall include at least one medical evaluation, a discharge  
            plan, a postrelease plan for the relocation and treatment of  
            the patient, and the   findings listed in  physician's and  
            medical director's determination that the patient meets the  
            criteria set forth in (A) or (C) of  paragraph (5) of  
            subdivision (a). The court shall order the medical director to  
            send copies of all medical records reviewed in developing the  
            recommendation to both of the following parties:
          
           SUPPORT AND OPPOSITION  :
          Support:  Union of American Physicians and Dentists (sponsor)
                    American Federation of State, County and Municipal  
                    Employees, AFL-CIO 
                    American Federation of State, County and Municipal  
               Employees, Local 2620
                    California Association of Psychiatric Technicians
                    California Psychiatric Association
                    Disability Rights California
                    National Association of Social Workers, California  
                    Chapter
                    
          Oppose:   None received  








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