BILL ANALYSIS �
AB 366
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ASSEMBLY THIRD READING
AB 366 (Allen and Achadjian)
As Amended April 25, 2011
Majority vote
PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0
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|Ayes:|Ammiano, Knight, Cedillo, |Ayes:|Fuentes, Harkey, |
| |Hagman, Hill, Mitchell, | |Blumenfield, Bradford, |
| |Skinner | |Charles Calderon, Campos, |
| | | |Davis, Donnelly, Gatto, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
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SUMMARY : Modifies the process by which individuals who are
declared incompetent to stand trial can be involuntarily
medicated. Specifically, this bill :
1)States when a court finds a defendant incompetent to stand
trial, the court shall also determine if the defendant lacks
capacity to make decisions regarding antipsychotic medications.
a) If the court finds that the defendant has capacity to make
decisions regarding antipsychotic medications, and if the
defendant, with advice of his or her counsel, consents to the
medication, the court order of commitment shall include
confirmation that antipsychotic medication may be given to
the defendant as prescribed by a treating psychiatrist
pursuant to the defendant's consent.
b) If the court finds that the defendant has capacity to make
decisions regarding antipsychotic medications, and the
defendant does not consent, or the court determines that the
defendant does not have capacity to make decisions regarding
antipsychotic medication, the court shall hear and determine
if the defendant is not medicated with antipsychotic
medications, it is probable that the defendant will cause
harm to his or her physical or mental health, the defendant
is a danger to others, or the defendant is charged with a
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violent felony, as specified. If the court finds any of the
above to be true, the court shall issue an involuntary
medication order to be included in the commitment order.
2)States that if a defendant who consented to antipsychotic
medications revokes his or her consent, and the treating
psychiatrist determines that antipsychotic medications have
become medically necessary and appropriate, and it is probable
that the defendant will cause harm to his or her physical or
mental health or the defendant is a danger to others, the
psychiatrist shall certify that the above conditions exist.
3)States that if a defendant whose commitment order did not
include an involuntary medication order, and the treating
psychiatrist determines that antipsychotic medications have
become medically necessary and appropriate, and it is probable
that the defendant will cause harm to his or her physical or
mental health or the defendant is a danger to others, the
psychiatrist shall certify that the above conditions exist.
Before making the certification, the psychiatrist shall attempt
to obtain informed consent from the defendant.
4)States that if the treating psychiatrist certifies that
antipsychotic medication has become medically necessary, and the
defendant either revoke his or her consent, or whose commitment
papers did not include an involuntary medication order,
antipsychotic medications may be administered to the defendant
for not more than 21 days.
a) Within 72 hours of the certification, a two-person panel
comprised of a psychiatrist not involved in the defendant's
treatment and a patient representative shall review the
treating psychiatrist's certification. If both panelists
concur with the certification, involuntary administration of
antipsychotic medications may continue for the remainder of
the 21 days.
b) The treating psychiatrist shall file a copy of the
certification and a petition for the issuance of an order for
involuntary medication beyond the 21 day period with the
court. The court is required to hold the hearing within 18
days of the certification, and shall provide notice to the
prosecuting attorney and the attorney for the defendant. If
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as a result of the hearing, the court finds that
antipsychotic medication should be administered beyond the 21
day period, the court shall issue an order authorizing the
administration of that medication. The order shall be
within three calendar days from the hearing, and in no case
be beyond the 21 day certification period.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Moderate annual General Fund costs to the Department of Mental
Health, likely in the range of $125,000, primarily for the
two-person involuntary medication panels. Assuming about 2,000
annual IST commitments, if half of the commitments do not have
involuntary medication orders, and 15% of them refuse
medication, that would result in about 150 two-person panels.
2)Unknown, potentially significant state trial court costs, likely
in the hundreds of thousands of dollars, to the extent the court
complies with holding a hearing within 18 days of the treating
psychiatrist's certification that the patient needs involuntary
medication.
3)Annual savings, potentially in excess of $1 million, to the
extent the proposed changes reduce violent patient-on-staff
incidents that result in significant amounts of overtime to
backup injured staff, as well as disability payments.
For example, based on DMH data, workers compensation claims at
Napa State Hospital alone in 2009 and 2010 resulted in more than
20,000 missed work days, many of which are attributed to
patient-on-staff incidents. In 2009 and 2010 combined, DMH
reported 266 patient-on-staff assaults at Napa.
COMMENTS : According to the author, "AB 366 makes state hospitals
safer for patients and staff by improving the current involuntary
medication process to eliminate any significant gap in the
necessary treatment for patients deemed incompetent to stand trial
(IST) and committed to a state hospital (Penal Code 1370) who have
demonstrated that they are a danger to themselves or others.
Specifically, AB 366 does the following:
"�First, r]equires a judge to determine if the defendant lacks the
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capacity to make decisions regarding antipsychotic medication in
the initial trial where the defendant is deemed incompetent to
stand trial and consented to the administration of antipsychotic
drugs. The problem with existing law is that a defendant, at the
advice of counsel, may consent to the administration of
antipsychotic drugs yet may not be competent to make that
decision. Therefore, the state hospital may receive a defendant
who has initially consented to antipsychotic medication yet does
not have the capacity to make that decision. As a result, the
defendant may subsequently withdraw that consent and even though
they clearly do not have the capacity to make that decision, the
state hospital must obtain a new court order authorizing the
medication using the existing standard that the defendant lacks
the capacity to make decisions regarding antipsychotic medication.
"Rather than allowing a defendant to consent to a court order that
they don't have the capacity to consent to, the court should
establish that capacity up front rather than having to immediately
send the defendant back to court to get the order. This would not
eliminate any due process rights of the defendant and would save
precious time and resources of our courts and state hospital
systems. In addition, it would ensure that defendants are not
left untreated and allowed to mentally deteriorate while awaiting
the new court order.
"�Second, c]reates an independent internal process to provide
temporary involuntary medication if the defendant withdraws their
consent to be medicated after admittance to the hospital until a
court decides whether the defendant should be medicated which must
occur within 21 days from the start of the involuntary medication.
The internal process for temporary involuntary medication would
only be permissible if the hospital follows the procedures that
protect independent medical decision-making and due process rights
as provided for in various U.S. Supreme Court decisions, most
notably, Washington v. Harper.
"The problem with existing law is that when defendants withdraw
their consent to be medicated, a new court order for medication
may take weeks and sometimes months. For most patients, the lack
of medication causes further deterioration of their mental disease
making it harder to restore the defendant to competency, sometimes
to the point where they may never be restored to competency.
Additionally, patients who are not only a danger to themselves,
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but a danger to others, compromise the recovery of other patients
and create a very dangerous environment putting the lives of all
patients and staff at risk.
"By providing a temporary process for involuntary medication, one
that is upheld by the U.S. Supreme Court, patients in need of
medication will no longer go untreated and patients will be
restored to competency so that they can stand trial.
Additionally, by establishing a timeline for when the committing
court must hear and decide on the request for long-term
medication, the existing standard for long-term involuntary
medication is upheld while the courts are provided a firm but
reasonable time limit to make a decision. Most importantly,
eliminating the gap in treatment will greatly improve patient
recovery as well as greatly improve the safety for all patients
and staff.
"Recent reports by the Los Angeles Times, New York Times, and
other papers highlighted by the recent tragic death of an employee
just last October at Napa State Hospital and the brutal beating of
another employee just six week later at the same facility, have
highlighted the inherent danger for both patients and staff at our
state hospitals. Data provided by the Department of Mental Health
at the request of various media outlet as well as the Select
Committee on State Hospital Safety have also helped document the
increasingly unsafe conditions.
"For example a study performed jointly by the University of
California, Davis and Napa State Hospital showed that in 2010
there were over 8,300 incidents at the five state hospitals where
an aggressor was identified. In approximately 6,700 of these
incidents, a victim was identified. Out of these incidents, there
were over 5,100 injuries, over 1,000 of them staff injuries
including one death. These numbers amounts 23 aggressive acts per
day, 18 victims per day, 14 injuries per day, and 3 staff injuries
per day. The Los Angeles Times also recently reported that the
number of attacks doubled in the second quarter of 2010 compared
to 2009 and that patient on patient attacks increased six-fold.
"There is little debate that the primary cause in the increase in
violent incidents is due to the increasing forensic population
combined with facilities and safety infrastructure that were not
designed or maintained for this patient population. For example,
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Napa State Hospital currently houses a forensic population around
85 percent whereas 15 years ago the forensic population hovered
around 20 percent. As of December 31, 2010 most of the 9,061
patients at the five state hospitals were forensic commitments.
About 10 percent, or roughly 900 of the patients at the five
hospitals are Penal Code 1370 commitments or those deemed
incompetent to stand trial - the population that AB 366 attempts
to address.
"Addressing the treatment gap for PC1370 commitments will have
profound effects. For example, a Department of Mental Health
Quality Control analysis that examined PC 1370 commitments from
January 31, 2010 to December 22, 2010 found that individuals who
consent to take medications but who are not ordered to do so are
more aggressive and take longer to recover. This is because those
without a court order can refuse medication, even if they are not
competent to make that decision, causing medication and treatment
to be inconsistent and therefore much less effective. Addressing
this issue prior to commitment through a determination of
competency when the patient initially consents as proposed in AB
366 will significantly reduce violent incidents and improve
patient recovery as well as improve the safety of patients and
workers.
"Creating a safer environment will also have significant financial
benefits. Since the 2003-04 fiscal year, overtime expenditures
from the five state hospitals and the two state psychiatric
facilities went from $40 million to $101 million. The mandatory
staffing ratios during the recent furloughs from 2008 to 2010
contributed to this increase as did the addition of Coalinga State
Hospital in 2005. However, the spike in overtime is also
attributed to the time missed due to workers' compensation claims
which have increased sharply over this same timeframe. At Napa
State Hospital there were 396 staff injuries in 2009 resulting in
278 workers' compensation claims and 9,473 missed work days and in
2010 there were 384 staff injuries resulting in 289 workers'
compensation claims and 10,724 missed work days. While it is
difficult to determine exactly how much the state will save if the
treatment gap is fixed as proposed in AB 366, the workers'
compensation savings will certainly be in the millions of dollars.
"Leaving patients untreated is bad for the patient in need of
treatment, damaging to the other patients receiving treatment, and
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puts the lives of all patients and staff at risk. It is
unconscionable to leave some patients untreated for months while
they deteriorate in our state hospitals. AB 366 proposed minor
changes in our system that will provide significant safety
improvements that patients, patient families, and workers expect
and deserve."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Milena Nelson / PUB. S. / (916) 319-3744
FN: 0000892