BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: SB 743
S
AUTHOR: Senate Committee on Health
B
AMENDED: As Introduced
HEARING DATE: April 1, 2009
7
CONSULTANT:
4
Tadeo/
3
SUBJECT
Health facilities: psychiatric patient release
SUMMARY
Clarifies the immunities from civil and criminal liability
that are granted to specified hospitals and their staff
related to the detention of persons who cannot be safely
released from the hospital because they are a danger to
themselves, to others, or are gravely disabled, as defined.
CHANGES TO EXISTING LAW
Existing federal law:
The Emergency Medical Treatment and Active Labor Act
(EMTALA) governs when and how a patient may be refused
treatment or transferred from one hospital to another when
he or she is in an unstable medical condition. Under
EMTALA, a psychiatric patient is considered stable for
discharge if the patient is no longer considered a threat
to him/herself or others. Stabilization does not require
resolution of an emergency psychiatric condition; rather a
patient must be sufficiently evaluated and treated to the
point that the discharging professional reasonably believes
that the patient is unlikely to harm him/herself or others.
Existing federal law provides that psychiatric emergencies
include, but are not limited to, depression with feelings
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STAFF ANALYSIS OF SENATE BILL SB 743 (Committee on Health)
Page 2
of suicidal hopelessness, delusions, severe insomnia,
helplessness, history of recent suicidal attempt or
suicidal ideation, recent assault, self-mutilation, or
destructive behavior, and psychotic behavior.
Existing state law:
The Lanterman-Petris-Short (LPS) Act governs the
involuntary detention of persons who exhibit behavior that
makes them a danger to themselves or to others or who are
so gravely disabled that they cannot take care of
themselves. The LPS Act allows a peace officer or a member
of the attending staff or members of a mobile crisis team
or other professional designated by the county to take that
person into custody and place him or her in a
county-designated facility (hospital facilities with
inpatient psychiatric services) for up to 72 hours for
treatment and psychiatric evaluation. Further, the LPS Act
imposes strict rules on the detention, assessment and
treatment of the detained person. Provided all the rules
are adhered to, the peace officer and the medical director
of the facility, as well as the professional staff
responsible for the evaluation and treatment of the person,
are granted immunity from civil and criminal liability for
detaining the person, releasing the detained person at any
time prior to the end of the 72-hour hold, or for any
actions of that person released before or after the 72-hour
hold.
Existing law also grants civil and criminal immunity to
non-county designated hospitals (hospitals with no
inpatient psychiatric services) related to the detention
and release of individuals who are a harm to themselves or
others, or are gravely disabled and meet certain criteria.
Such individuals may be detained for up to 24 hours,
generally, to allow time to arrange for the placement of an
individual in a 72-hour hold for further treatment and
evaluation. Specified conditions must be met for the
immunity to be granted.
Current law lists certain conditions under which a hospital
may detain an individual beyond eight hours, one of which
is that a transfer has been delayed for appropriate mental
health evaluation or treatment.
This bill:
STAFF ANALYSIS OF SENATE BILL SB 743 (Committee on Health)
Page 3
This bill would clarify that the immunity from civil and
criminal liability that is granted to the specified
hospitals and staff for the detention of any person that
cannot be safely released from the hospital because they
are a danger to themselves, or others, or are gravely
disabled, as defined, applies whether or not they qualify
for a 72-hour evaluation. This bill would clarify that
these immunities also apply for the actions after release
of a person who was detained up to 24 hours and who meets
specified criteria.
This bill would clarify the conditions under which a
hospital may detain a patient beyond eight hours to include
when a transfer for any type of evaluation or treatment
(mental health or physical health) is delayed.
This bill would also make another related technical change.
FISCAL IMPACT
Unknown. This bill is keyed non-fiscal.
BACKGROUND AND DISCUSSION
The LPS Act was enacted to protect patients in the mental
health care system as well as the surrounding community.
The California Hospital Association (CHA) states that at
the time the LPS Act was enacted, no one anticipated
patients would need to be detained in hospitals without
psychiatric inpatient beds, because there was an adequate
supply of psychiatric beds in most communities. SB 916
(Chapter 308, Statutes of 2007) changed the law to allow
hospitals to detain individuals who are a danger to
themselves or others, or are gravely disabled up to 24
hours. These changes were needed to give hospitals time to
assess a patient's physical and mental health needs and to
secure psychiatric treatment, when necessary. After
enactment of the law, technical issues were identified,
which this bill seeks to address, primarily that
individuals may be brought into hospitals by family members
or friends and do not come in detained under a Section
5150, therefore, this clause that was put into law by SB
916 would be deleted.
STAFF ANALYSIS OF SENATE BILL SB 743 (Committee on Health)
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According to the California Psychiatric Association (CPA),
after SB 916 took effect, it became clear that the statute
could be interpreted in such a way that emergency room
physicians were authorized to break 72-hour holds. CPA
argues that this was not the intent of SB 916, instead, SB
916 was intended to be silent on 72-hour holds and neither
change current law or practice in regard to these
involuntary detentions under the LPS Act (WIC 5150).
Prior legislation
SB 916 (Yee) Chapter 308, Statutes of 2007 extends to acute
psychiatric hospitals, civil and criminal immunity related
to the detention and release of individuals who are a harm
to themselves or others or are gravely disabled, and
extends from 8 to 24 hours the period of time that
individuals can be detained in such hospitals, providing
the hospital has not been designated by a county to conduct
psychiatric evaluations pursuant to Section 5150 of the LPS
Act, and specifies the conditions that must be met for the
immunity to be granted.
SB 2003 (Costa) Chapter 716, Statutes of 1996 prohibits a
general acute care hospital, its licensed professional
staff, or any physician and surgeon providing emergency
medical services at the hospital, from being civilly or
criminally liable for detaining a person, or for the
actions of the person following release from the hospital,
if certain conditions exist, including, that the detainment
not exceed eight hours.
SB 1111 (Costa) Chapter 547, Statutes of 1997 amends SB
2003 to include specified clinical psychologists in the
list of persons exempt from civil or criminal liability for
detaining a person, or for the actions of the person
following release from the hospital, if certain conditions
exist, including that the detainment does not exceed eight
hours. This bill also requires that the specified hospital
personnel must make and document repeated unsuccessful
efforts to find appropriate mental health treatment for the
person as an additional condition of exemption from
liability.
Arguments in support
The California Hospital Association states that this bill
will provide clarity and uniform application of the law
STAFF ANALYSIS OF SENATE BILL SB 743 (Committee on Health)
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regarding individuals who are a danger to themselves or
others or are gravely disabled and present themselves at
hospitals that have no inpatient psychiatric services. The
California Psychiatric Association contends that this bill
offers small, simple changes in policy that will be
valuable to the patients that will increase access to
services.
COMMENTS
1. Additional clarification of duty to find appropriate
treatment may be needed. The California Chapter of the
American College of Emergency Physicians (CAL/ACEP) states
that under current statute, the hospital staff, treating
physician and surgeon, or appropriate licensed mental
health professional, must have made, and documented,
repeated unsuccessful efforts to find appropriate mental
health treatment for the person. CAL/ACEP states that
patients must first be medically stable before they are
transferred. CAL/ACEP argues that this language can be
interpreted to require emergency staff to spend time making
calls when a patient has not been medically stabilized yet.
The author has agreed to work further on this issue.
POSITIONS
Support: California Hospital Association
California Psychiatric Association
Civil Justice Association of California
Oppose: None received
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