BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
AB 366 (Allen)
Hearing Date: 8/25/2011 Amended: 7/12/2011
Consultant: Katie Johnson Policy Vote: Public Safety 7-0
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BILL SUMMARY: AB 366 would revise the procedures governing the
involuntary administration of antipsychotic medication to state
hospital patients.
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Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
ALJ Hearings $600 $1,200 $1,200 General
DMH court proceedings $125 $250 $250 General
Court cost pressure likely in the hundreds of thousands
General*
and lost fee revenue of dollars annually
Potential workers' potentially in the low millions of
dollars General**
compensation and dollars annually, commencing after
staff backfill cost avoidance implementation
*Trial Court Trust Fund
**See Staff Comments
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STAFF COMMENTS: SUSPENSE FILE.
Existing law requires a court to hear and determine whether the
defendant, with advice from his or her counsel, consents to the
administration of antipsychotic medication. Instead, this bill
would require the court to hear and determine whether the
defendant lacks capacity to make decisions regarding the
administration of antipsychotic medication and would revise the
process for the involuntary administration of antipsychotic
medication.
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Specifically, this bill would:
1) Require the court to determine upfront, instead of upon
return to court, whether or not the defendant has capacity
to make decisions regarding the administration of
antipsychotic medication. The court would issue an order
authorizing the treatment facility to involuntarily
administer antipsychotic medication to the defendant if he
or she was incapable of making decisions regarding
antipsychotic medication and specified conditions relating
to a defendant's risk for committing violence were met.
Instead of completing this process only if the defendant
does not consent to the administration of the medication,
this bill would require this process to be completed as
part of the court determining whether or not a defendant
lacks capacity to make decisions regarding antipsychotic
medication.
2) Require that, if a court determines that the defendant
has the capacity to make decisions regarding antipsychotic
medication and if the defendant does not consent, the court
order for commitment would indicate that after the treating
psychiatrist determines that the antipsychotic medication
has become medically necessary, attempts to obtain informed
consent, and certifies whether or not lack of capacity
exists, a specified risk to commit violence is met, and
that involuntary administration of antipsychotic medication
is likely to render the person competent to stand trial,
the defendant would be returned to court to determine
whether or not antipsychotic medication should be
administered involuntarily.
3) Provide that if the psychiatrist certifies that
antipsychotic medication has become medically necessary,
antipsychotic medication may be administered to the
defendant for not more than 21 days, provided that within
72 hours of the certification, the defendant is provided a
medication review hearing before an administrative law
judge (ALJ) to be conducted at the facility where the
defendant is receiving treatment.
4) Require the certifying psychiatrist to be present and
the defendant to be represented by an attorney or a
patient's rights advocate. If an ALJ determines that the
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defendant meets specified criteria, then antipsychotic
medication may continue to be administered to the defendant
for the 21-day certification period. Concurrently with the
treating psychiatrist's certification, the psychiatrist
would be required to file a copy of the certification and a
petition with the court for issuance of an order to
administer antipsychotic medication beyond the 21-day
certification period. The psychiatrist would not be a
required to pay or deposit any filing fee.
5) Require that, if the ALJ disagrees with the
certification, medication may not be administered
involuntarily until the court determines that it should be
administered. The court would be required to provide notice
to the prosecuting attorney and to the attorney
representing the defendant and to hold a hearing no later
than 18 days from the date of the certification to
determine whether or not antipsychotic medication should be
ordered beyond the certification period.
6) Require that, if the court determines that antipsychotic
medication should be administered, the court would be
required to issue an order authorizing its administration.
The court would be required to render its decision on the
petition and issue its order no later than three calendar
days after the hearing and no later than the expiration of
the 21-day certification period.
7) Specify that an order by the court authorizing
involuntary medication of a defendant would be valid for no
more than one year. The court would be required to review
the order six months after the order was made to determine
if the grounds for the authorization remain. Upon review,
the court would be permitted to either continue the
involuntary medication for six months, vacate the order, or
to make any other appropriate order.
ALJ Process
There would be approximately 1,000 - 1,100 cases annually that
would require a hearing with an ALJ at a cost of approximately
$1.2 million annually General Fund. The costs would include 2
legal secretary or clerk positions, funding for ALJ services,
inmate counsel/patient advocates, and DMH legal counsel. Either
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the Department of General Services or the Office of
Administrative Hearings would supply or contract for the ALJs.
While the bill specifies an ALJ process, it is unclear whether
the Department of General Services or the Office of
Administrative Hearings would supply the ALJs. Staff recommends
that the bill be amended to specify the ALJ source. There could
be additional cost pressure to staff and ALJs to meet the
"hearing within 72 hours" requirement.
Court Cost Pressure
While these court cases would be conducted now, this bill would
require them to happen within 18 days. There would be
significant cost pressure on the courts in the hundreds of
thousands of dollars to comply with these provisions.
Additionally, there would be a loss of fee revenue due to this
bill's provision that psychiatrists would not be required to pay
court fees to file petitions. DMH clinicians would be required
to be present at these court proceedings and would require
resources of approximately $250,000 annually to travel to the
location of the court.
The recently enacted Budget Act of 2011 reduced ongoing funding
to the Judicial Branch budget by $350 million, which will result
in reductions in existing court staff and court room closures in
various counties across the state. In the absence of additional
funding to comply with the provisions of this bill, courts would
be required to divert existing resources from other court
obligations, resulting in prolonged delays or the inability to
complete the courts' other constitutional and statutory
responsibilities.
Potential DMH Cost Avoidance
To the extent that this bill's revision of the procedures
governing the involuntary administration of antipsychotic
medication were to reduce violence against staff at state
hospitals, there could be significant workers compensation and
staff backfill cost avoidance, likely in the low millions of
dollars annually General Fund. Additionally, overall court
hearings could decrease since there would be no need to
automatically return an individual to the court for a
determination of capacity, as under current law.
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