BILL ANALYSIS
SB 743
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Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 743 (Committee on Health) - As Amended: June 1, 2009
PROPOSED CONSENT
SENATE VOTE : 37-0
SUBJECT : HEALTH FACILITIES: PSYCHIATRIC PATIENT RELEASE
KEY ISSUE : SHOULD CLARIFYING CHANGES TO EXISTING LAW GRANTING
IMMUNITY TO HOSPITALS AND STAFF REGARDING THE DETENTION AND
RELEASE OF SPECIFIED PERSONS BE ENACTED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill is a technical clean-up measure to
SB 916 (Yee, Ch. 308, Stats. 2007), which 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 discharge or transfer for any type of
appropriate evaluation or treatment is delayed. The bill has no
known opposition.
SUMMARY : Makes clarifying non-controversial 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 :
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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 :
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;
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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
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
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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
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.
COMMENTS : This non-controversial bill seeks 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
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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 author, 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 discharge or transfer for any
type of appropriate evaluation or treatment is delayed.
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 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.
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
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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.
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.
This bill would extend the immunity from civil and criminal
liability to the specified facilities and staff for the
detention of any person who meets specified criteria, whether or
not they qualify for a 72-hour evaluation, and for the actions
after release of a person who was detained up to 24 hours and
who meets specified criteria.
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ARGUMENTS IN 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.
REGISTERED SUPPORT / OPPOSITION :
Support
American College of Emergency Physicians, California Chapter
California Association of Psychiatric Technicians
California Hospital Association
California Psychiatric Association
Civil Justice Association of California
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334