BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 743
Committee on Health
As Introduced
Hearing Date: April 21, 2009
Health & Safety Code
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SUBJECT
Health Facilities: Psychiatric Patient Detention and Release
DESCRIPTION
SB 743 is a technical clean-up bill to SB 916 (Yee, Ch. 308,
Stats. 2007), that established new rules for the release of
patients from specified licensed general acute care hospitals,
licensed acute psychiatric hospitals, and provided immunity to
the facilities and facility health care providers (emergency
rooms and specified mental health facilities) for releasing
those patients after 24-hours' detention and for actions of such
persons released from detention after 24 hours.
The bill would clarify that: (1) the immunity from civil and
criminal liability granted to these hospitals and personnel
applies whether the detained person qualifies for a 72-hour hold
(under Welfare & Institutions Code Section 5150) or not; and (2)
that a qualified facility or hospital may detain an individual
beyond 8 hours but not more than 24 hours when a transfer for
any type of appropriate evaluation or treatment is delayed.
BACKGROUND
SB 916 was enacted in 2007 to provide relief to hospitals and
county facilities without inpatient psychiatric beds for
individuals that, even after 8 hours, still posed risks to
themselves or to others or are gravely disabled under Welfare &
Institutions Code Section 5150. SB 916 allowed these
facilities, which had been holding patients for up to 72 hours
under Section 5150 while they looked for appropriate facilities
for a transfer, to release patients after an 8-hour hold under
(more)
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specified conditions, and provided immunity from civil and
criminal liability to the facilities and their mental health
staff for any post-release injury that the released individuals
may suffer or may cause to others, and to detain patients for up
to 24 hours, under specified conditions, with corresponding
immunities granted to the hospitals and their professional
mental heath staff.
According to the author, the implementation of SB 916 posed some
technical problems with the language referring to which
individuals may be detained under SB 916, and with the
interpretation of when a hospital or facility or staff qualifies
for the immunity for civil and criminal liability. This bill is
intended to clarify and resolve these issues.
SB 743 was heard in the Senate Health Committee on April 1,
2009.
CHANGES TO EXISTING LAW
Existing law allows county designated facilities (hospital
facilities with inpatient psychiatric services) and licensed
acute psychiatric hospitals to place 72-hour holds on patients
who, as a result of either a permanent or temporary mental
disorder, are a danger to themselves or to others or are gravely
disabled. Existing law also allows designated facilities to
release the 72-hour hold if specified criteria are met. (Welf. &
Inst. Code Sec. 5150 et seq. All references are to the Welf. &
Inst. Code unless otherwise indicated.) These assessments are
made by psychiatric professionals and are specified under
Sections 5152 and 5170.7.
Existing law exempts from civil and criminal liability a general
acute care hospital, an acute care psychiatric hospital,
licensed professional staff at those hospitals, or any emergency
medical services physician in any department of those hospitals,
for detaining a person who is subject to a 72-hour evaluation,
or for the post-release actions of a person who was detained for
up to 24 hours pursuant to their qualification for a 72-hour
hold. (Health & Saf. Code Sec. 1799.111.)
Existing law also allows hospitals without inpatient psychiatric
services to detain a patient beyond 8 hours, for up to 24 hours,
provided certain conditions are met. (Health & Saf. Code Sec.
1799.11.) Existing law also provides immunity from civil and
criminal liability these hospitals and facilities and their
licensed mental health professionals for detaining a person for
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up to 24 hours, and for actions of the person after release from
the facility.
This bill would:
(1) remove the reference to Section 5150 holds when determining
whether or not a general acute care hospital, a licensed acute
psychiatric care hospital, or licensed professional staff
providing emergency medical services to a person is immune
from civil or criminal liability for detaining a person for up
to 24 hours, under the specified criteria;
(2) clarify that a person may be detained for more than 8 hours,
but not beyond 24 hours, for appropriate evaluation or
treatment (deleting the reference to mental health treatment);
and
(3) make a conforming change regarding the immunity provided to
hospitals and personnel for the actions of a person detained
up to 24 hours but released pursuant to the criteria specified
in existing law.
COMMENT
1. Need for the bill
The author writes:
The LPS [Lanterman-Petris-Short 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... .
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
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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 (under Sec.
5150) and neither change current law or practice in regard
to these involuntary detentions under the LPS Act.
2. Immunity for civil or criminal liability applicable whether
or not a person is detained or detainable under Section 5150
The 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 a mobile crisis team or other
designated official of the county to take that person into
custody and place him or her in a county-designated facility
(which are 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, and
grants that person certain rights in the process. Provided all
these rules are adhered to, the peace officer and the
professional staff responsible for the evaluation and treatment
of that person are granted immunity from civil and criminal
liability for detaining the person, releasing the person at any
time prior to the end of the 72-hour hold, and for the actions
of that person subsequent to the release before or after the
72-hour hold.
Non-county designated hospitals (hospitals with no inpatient
psychiatric services) and licensed professionals providing
emergency medical services are also immune from civil and
criminal liability for the detention and release of persons who
exhibit behavior that can harm themselves or others or are
gravely disabled, and meet certain criteria. These persons may
be detained for 8 hours, or up to 24 hours under certain
criteria, to allow time to arrange for the placement of the
person in a 72-hour hold for further evaluation and treatment,
if necessary. (Health & Saf. Code Sec. 1799.111.)
According to proponents of SB 743, the language in current
Health & Safety Code Section 1799.111 severely limits the relief
SB 916 was supposed to create for these non-designated hospitals
and their professional personnel. Because the description of
the persons detained under the section contains a specific
reference to a Section 5150 hold, persons who are brought in by
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families and friends who could otherwise be released after an 8
or 24 hour hold, are being held for 72-hour holds because the
facility and the professionals do not clearly qualify for the
immunity granted under Section 1799.111.
This bill would remove the limiting reference to a Section 5150
hold on these detained persons, thus expanding coverage of the
immunity granted by Section 1799.111 to those non-Sec. 5150
detentions. Thus, a person brought in by a family member or
friend may be detained for 8 hours, then released with immunity
granted to the facility and the physician, or detained for up to
a total of 24 hours, for additional evaluation or treatment, or
while arranging a transfer to an appropriate facility, also with
the corresponding immunity for the hospital or facility and the
professionals treating the detained person.
The bill also would clarify the conditions under which a
hospital may detain a patient beyond 8 hours to include when a
transfer for any type of evaluation or treatment is delayed.
The bill would simply remove the reference to "mental health"
evaluation or treatment, allowing for continued detention for
evaluation and/or treatment of a physical, as well as a mental,
health condition. Therefore, a person who may have been brought
in by a relative or friend for a physical as well as a mental
condition, may be detained for longer than 8 hours to allow for
the stabilization of the person's physical condition rather than
the mental health assessment and treatment of that person.
While this bill clarifies the immunity granted to non-designated
facilities and their licensed mental health professionals for
detention or release of any person brought in under the LPS Act,
with or without a Section 5150 order, it should be noted that
more persons would be eligible for the 24-hour detention and
release provisions of the law. This, in the end, was the goal
of SB 916, according to proponents, as it would reflect current
practice by these non-designated facilities without psychiatric
beds and their personnel. What would be clear is the grant of
immunity for the actions of these persons after their release
from detention.
3. Outstanding issues for possible amendments
According to the Senate Committee on Health, there is an
outstanding issue brought by the California Chapter of the
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American College of Emergency Physicians (CAL/ACEP) that may
lead to further amendments. The CAL/ACEP states that under the
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. They state
that the patient must first be medically stable before they are
transferred, and that under the present language of the statute,
emergency staff may be required to spend time making calls
(looking for a placement for mental health evaluation and
treatment) when a patient has not been medically stabilized yet.
Under the federal Emergency Medical Treatment and Active Labor
Act (EMTALA), 42 U.S.C. Section 1395dd, a psychiatric patient is
considered stable for discharge if the patient is no longer
considered a threat to himself or herself or to others.
Stabilization does not require resolution of an emergency
psychiatric condition, but 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 himself or herself or others. Current federal
law provides that psychiatric emergencies include, among others,
delusions, severe insomnia, depression with feelings of suicidal
hopelessness, attempt or suicidal ideation, recent assault,
self-mutilation, destructive behavior, or psychotic behavior.
The suggested amendments make sense, and should be pursued. The
author has agreed to work on this issue and to bring the bill
back to the Committee if necessary when amendments are drafted
to address the problem.
Support : Civil Justice Association of California (CJAC);
California Hospital Association (CHA); California Association of
Psychiatric Technicians; California Psychiatric Association
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : SB 916 (Yee, Ch. 308, Stats. 2007) See
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Background.
Prior Vote: Senate Committee on Health (Ayes 11, Noes 0)
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