BILL ANALYSIS
SB 743
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Date of Hearing: June 9, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
SB 743 (Committee on Health) - As Amended: June 1, 2009
SENATE VOTE : 37-0
SUBJECT : Health facilities: psychiatric patient release.
SUMMARY : Makes clarifying changes to existing law granting
civil and criminal immunity to specified hospitals and staff
regarding the detention and release of a person who is a danger
to themselves, or others, or is gravely disabled, as defined.
Specifically, this bill :
1)Clarifies that immunity from civil and criminal liability that
is currently provided to licensed general acute care hospitals
and acute psychiatric hospitals, which are not designated by a
county to provide inpatient psychiatric services, and to
specified staff of the hospital, subject to certain
conditions, relative to the detention and release of a person
who is a danger to themselves, or others, or is gravely
disabled, as defined, applies regardless of whether the person
qualifies for 72-hour treatment and evaluation.
2)Specifies, with regard to the conditions under which immunity
is granted pursuant to 1) above, that the requirement for
specified staff to find appropriate mental health treatment
for the person via telephone calls or other contacts must
commence at the earliest possible time when the treating
physician has determined the time at which the person will be
medically stable for transfer.
3)Prohibits the contacts in 2) above from beginning after the
time when the person becomes medically stable for transfer.
4)Modifies the list of conditions under which a hospital may
detain a person for more than eight hours but less than 24
hours to include when a discharge or transfer for appropriate
evaluation or treatment for the person has been delayed, as
specified.
EXISTING LAW :
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1)Establishes the Lanterman-Petris-Short (LPS) Act, which
authorizes a peace officer, or a member of the attending
staff, or members of a mobile crisis team or other
professional designated by a county, to take a person into
custody for up to a 72-hour evaluation and treatment period,
upon demonstration of probable cause that the person, as a
result of a mental disorder, is a danger to others or him/her
self, or is gravely disabled.
2)Specifies, under the LPS Act, conditions governing the
detention, assessment and treatment of the detained person as
follows:
a) Initial 72-hour hold. Initial evaluation and treatment
of persons who, as a result of a mental disorder, are
dangerous to themselves or others, or are gravely disabled;
b) Additional 14-day hold. A person detained for a 72-hour
hold may be certified for an additional 14 days of
involuntary detention and treatment if: i) the person has
been advised of the need for, but has failed to accept,
voluntary treatment; and, ii) the medical staff finds that
the person continues to be a danger to self or others, or
is gravely disabled;
c) Renewed 14-day hold if suicidal. A person detained as
dangerous to self may be certified for an additional 14
days of involuntary detention and treatment, for a total of
31 days, if the person continues to be suicidal;
d) Additional, renewable 6 months hold if "dangerous to
others." After the initial 72-hour and 14-day holds, an
additional 180-day detention may be imposed on a person who
is imminently dangerous to others, based on recent threats,
or attempted or actual infliction of harm. The person may
be placed on an undefined "outpatient status" if the
director of the inpatient facility determines the person no
longer will be a threat to others and will benefit from
outpatient status; and,
e) Additional 30-day to one-year conservatorship if still
"gravely disabled," but not dangerous to self or others.
After the initial 72-hour and 14-day holds, an individual
who continues to be gravely disabled and fails to accept
voluntary treatment may be placed under a 30-day
conservatorship and then a renewable, one-year
conservatorship.
3)Grants the peace officer and the medical director of the
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facility, as well as the professional staff responsible for
the evaluation and treatment of the person, 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, provided that conditions
pursuant to 2) above are followed.
4)Grants civil and criminal immunity to 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. Permits
such individuals to 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.
Specifies conditions that must be met for the immunity to be
granted.
5)Permits a hospital to detain an individual beyond eight hours
but less than 24 hours if the following conditions are met:
a) A transfer for appropriate mental health treatment for
the person has been delayed because of the need for
continuous and ongoing care, observation, or treatment that
the hospital is providing; and,
b) In the opinion of the treating physician and surgeon, or
other specified licensed mental health professional, the
person, as a result of a mental disorder, is still a danger
to himself or herself, or others, or is gravely disabled.
6)Defines "gravely disabled" as an inability to provide for
one's basic personal needs for food, clothing, and shelter.
7)Establishes, under federal law, the Emergency Medical
Treatment and Active Labor Act (EMTALA), which requires a
hospital with an emergency department (ED) to treat any
individual who comes through the ED with an emergency medical
condition, whether or not the individual has medical
insurance, and governs when and how a patient may be: a)
Refused treatment; or, b) Transferred from one hospital to
another when he is in an unstable medical condition.
8)Specifies, under EMTALA, that an emergency medical condition
includes psychiatric disturbances and/or symptoms of substance
abuse. Defines a psychiatric emergency medical condition as a
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patient that is a danger to self or others or there is risk of
danger to self or others.
9)Defines an acute psychiatric hospital as a health facility
that has a duly constituted governing body with overall
administrative and professional responsibility and an
organized medical staff that provides 24-hour inpatient care
for mentally disordered, incompetent, or other patients, as
specified, including the following basic services: medical,
nursing, rehabilitative, pharmacy, and dietary services.
FISCAL EFFECT : None
COMMENTS :
1)PURPOSE OF THIS BILL . This bill is authored by the Senate
Committee on Health (Committee) to clarify current law
governing immunity from civil and criminal liability that is
granted to certain hospitals and treating staff for the
detention of individuals who cannot be safely released from
the hospital because they are a danger to themselves, or
others, or are gravely disabled. Under current law, an
individual who is a danger to self or others, or gravely
disabled, can be held in a hospital for psychiatric treatment
and evaluation for up to 24 hours without civil or criminal
liability to the facility or treating personnel. However,
according to the Committee, an oversight in the law implies
that the patient must be brought into the hospital on a
72-hour psychiatric hold by law enforcement in order for the
immunities to apply. Often individuals who are a danger to
themselves or others or who are gravely disabled are brought
in by family members or friends rather than law enforcement.
This bill allows these facilities to hold these patients
regardless of how they are brought to the facility and
clarifies that existing immunity protections provided to these
facilities and their personnel apply whether or not the
patient qualifies for a 72-hour period of treatment and
evaluation. Additionally, this bill permits qualified
hospitals to detain a patient for more than 8 hours but less
than 24 hours in the event that a transfer for any type of
appropriate evaluation or treatment is delayed.
2)BACKGROUND . The LPS Act was enacted to protect patients in
the mental health system as well as the surrounding community.
The LPS Act governs the involuntary detention of persons who
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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 a county to take that
person into custody and place him or her in a
county-designated facility for up to 72 hours of treatment and
psychiatric evaluation. Further, the LPS Act imposes strict
conditions relating to the detention, assessment and treatment
of the detainee. Provided that specified conditions are met,
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 releasing the detainee 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.
3)EMTALA . EMTALA governs when and how a patient may be: a)
refused treatment; or, b) transferred from one hospital to
another when he or she is in an unstable medical condition.
Generally, EMTALA applies to virtually all hospitals in the
U.S., with the exception of the Shriners' Hospital for
Crippled Children and many military hospitals. The provisions
of EMTALA apply to all patients, and not just to Medicare
patients. Under EMTALA, any patient who "comes to the
emergency department" requesting "examination or treatment for
a medical condition" must be provided with "an appropriate
medical screening examination" to determine if the patient is
suffering from an "emergency medical condition." If he or she
is in an emergency, then the hospital is obligated to either
provide the patient with treatment until the patient is stable
or to transfer the patient to another hospital in conformance
with the statute's directives. A transfer to another facility
before the patient has become stable can only take place if it
is an "appropriate transfer." A transfer after the patient
has become stable is permitted and is not restricted by EMTALA
in any way. The statute's restrictions apply only to
transfers before the patient has become stable, either on his
or her own or as a result of medical treatment. EMTALA also
provides that a pre-authorization requirement imposed by a
managed care organization or a health insurer may not be
allowed to prevent or delay the performance of a medical
screening evaluation, or the institution of necessary
stabilizing treatment, once it is determined that an emergency
medical condition exists.
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4)CURRENT IMMUNITIES . Under current law, general acute care
hospitals, acute psychiatric hospitals, and their professional
staff, and doctors providing emergency care medical services
in these hospitals, are granted immunity from civil and
criminal liability for: a) detaining a person for up to 24
hours for the purpose of attempting to secure appropriate
treatment for the person; and, b) actions taken by a person
after their release from the facility because the facility
could not find appropriate mental health treatment for the
person. This immunity ensures that hospital emergency rooms
have adequate time of 24 hours to find appropriate placement
of the mentally disordered person and to hold hospital
personnel harmless for releasing the mentally disordered
person if the search for a psychiatric placement is not
successful by the end of the 24-hour hold.
5)RELATED LEGISLATION . AB 235 (Hayashi) defines a "psychiatric
emergency medical condition" for purposes of the obligation of
hospitals with emergency departments to provide emergency care
and services for psychiatric emergency medical conditions, and
the obligations of health plans in such cases, and by
reference, makes changes to provisions in the Knox-Keene
Health Care Service Plan Act of 1975 (Knox-Keene) requiring
health plans to reimburse for emergency services under
specified conditions. AB 235 is scheduled to be heard in the
Senate Health Committee on June 17, 2009.
6)PRIOR LEGISLATION .
a) SB 916 (Yee), Chapter 308, Statutes of 2007, extends to
acute psychiatric hospitals, civil and criminal immunity
relating to the detention and release of individuals who
are a harm to themselves, or others, or are gravely
disabled, and extends from eight to 24 hours the period of
time that patients can be detained in such hospitals,
providing the hospital has not been designated by a county
to conduct psychiatric evaluations under the LPS Act, and
specifies the criteria that must be met for the immunity to
be granted.
b) SB 1111 (Costa), Chapter 547, Statutes of 1997, includes
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
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from a specified hospital, if certain conditions exist,
including that the detainment must not exceed eight hours.
SB 1111 also requires that specified facility personnel
make and document repeated unsuccessful efforts to find
appropriate mental health treatment for the person as an
additional condition of exemption from liability.
c) 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 must not exceed eight hours.
7)SUPPORT . The California Hospital Association (CHA) writes in
support 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; but
that is no longer the case. CHA states that this bill will
provide clarity and uniform application of the law 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 Chapter of
the American College of Emergency Physicians states that this
bill will strengthen existing law and help ensure emergency
physicians will not be placed in a position to pursue mental
health treatment at a separate facility before they know the
patient is physically stable for transfer. The Civil Justice
Association of California asserts in support that mental
health workers and staff should not be faced with the
possibility of a lawsuit for simply doing their jobs. The
California Association of Psychiatric Technicians notes that
this bill protects psychiatric technicians and other allied
staff who provide professional level-of-care mental health
nursing services to Californians in a range of locations and
facilities.
8)DOUBLE-REFERRAL . This bill is double-referred. Should this
bill pass this committee, it will be referred to the Assembly
Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
American College of Emergency Physicians, California Chapter
California Association of Psychiatric Technicians
California Psychiatric Association (prior version)
California Hospital Association
Civil Justice Association of California
Opposition
None on file.
Analysis Prepared by : Cassie Rafanan / HEALTH / (916)
319-2097