BILL ANALYSIS �
AB 1693
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Date of Hearing: March 20, 2012
Consultant: Jesse Stout
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1693 (Hagman) - As Introduced: February 15, 2012
SUMMARY : Authorizes the Department of Mental Health (DMH) to
expand a pilot program by establishing competency restoration
programs in Los Angeles County, San Diego County, and Kern
County jails to inmates who have been found incompetent to stand
trial (IST) but not committed to a state hospital. Specifically,
this bill :
1)Authorizes DMH to expand a pilot program which provides
appropriate treatment to individuals found IST but not
committed to a state hospital, to Los Angeles, San Diego, and
Kern Counties, and any other county that opts to participate.
2)Requires the three specified counties to cooperate with DMH if
DMH expands the program.
3)Requires that admissions criteria for competency restoration
programs be coordinated through DMH, prioritizing ISTs most
likely to be restored to competency.
4)Specifies that competency-restoration programs shall include
at least: (a) objective competency assessment upon admission;
(b) individualized treatment programs; (c) multimodal,
experiential competency education experiences; (d) education
addressing the criminal justice system; (e) education for
individuals with lacking specific knowledge; (f) periodic
reassessment of competency; (g) medication treatment; and, (h)
capacity and involuntary treatment assessment.
5)Declares that a special law is needed because of the
historically long waiting lists of ISTs in the three specified
counties, which expose the State to potential future court
involvement from delays in the treatment of ISTs held in
county jail longer than recommended by the courts.
EXISTING LAW :
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1)Provides that a person cannot be tried or sentenced while
mentally incompetent. �Penal Code Section 1367(a).]
2)Defines "mentally incompetent" as being unable to understand
the nature of criminal proceedings or rationally assist
counsel in conducting a defense. �Penal Code Section
1367(a).]
3)Provides that if a doubt arises in the mind of the judge or
counsel as to a defendant's mental competence, the judge shall
appoint counsel and order a mental competence hearing to be
held in Superior Court. (Penal Code Section 1368.)
4)Provides the procedure for conducting a mental competence
hearing. (Penal Code Section 1369.)
5)Provides that if the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense
and judgment may be pronounced. �Penal Code Section
1370(a)(1)(A).]
6)States that if the defendant is found to be mentally
incompetent, the trial or judgment shall be suspended until
the person becomes mentally competent. �Penal Code Section
1370(a)(1)(B).]
7)States that in the meantime, the court shall order the
mentally incompetent defendant to be delivered by the sheriff
to a state hospital for the care and treatment of the mentally
disordered, or to any other specified treatment center that
will promote the defendant's speedy restoration to mental
competence, or placed on outpatient status, as specified.
�Penal Code Section 1370(a)(1)(B)(i).]
8)Requires state hospitals to report to courts on whether a
patient has recovered, or is likely to recover, their mental
competence, within 90 days. �Penal Code Section 1370(b)(1).]
9)Requires that ISTs be transferred to a state hospital within a
reasonable amount of time to comply with this 90-day
requirement. �In re Mille (2010) 182 Cal.App.4th 635, 650
(2010).]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "With such a
severe budget situation and backlog in transferring defendants
who are incompetent to stand trial to state hospitals for
treatment, AB 1693 will provide monetary relief to all while
making sure that these defendants are restored to competency."
2)" Mental Competency" Legally Defined : The due process clause
of the U.S. Constitution, "�N]or person shall any State
deprive any person of life, liberty, or property, without due
process of law," has been interpreted as entitling a defendant
to a hearing on the issue of his competence to stand trial if
counsel or the judge expresses doubt as to his mental
competency. �U.S. Const., 14th Amend.; Pate v. Robinson
(1966) 383 U.S. 375.] To be competent to stand trial, a
defendant must have "sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding" and "a rational as well as factual
understanding of the proceedings against him." �Dusky v.
United States (1960) 362 U.S. 402, 402.] Specifically, under
California law, due process requires the court to initiate
Penal Code Section 1368 proceedings if substantial evidence
exists that a defendant is incompetent, even in the face of
contrary evidence. �People v. Ary (2011) 51 Cal.4th 510.] If
an offender has been charged with a crime and is not able to
understand the nature of the criminal proceedings and/or is
not able to assist counsel in his or her defense, the court
may determine that the offender is not competent to proceed.
(Penal Code Section 1370.) When that occurs, the court will
require the defendant to be examined by three doctors. If two
out of three doctors agree the offender cannot understand the
charges against him or her or cannot assist in his or her own
defense, the defendant is referred to DMH and the criminal
proceedings are suspended. �Penal Code Section 1368(c).] The
treating agency shall submit reports to the court periodically
on the offender's status. The initial report must be made
within 90 days of the offender's commitment. �Penal Code
Section 1370(b)(1).] The report shall specify what, if any,
progress the treating agency has made in restoring the
offender's competency. If the report states that the offender
is not likely to regain competency, then the offender is
ordered to remain the custody of the treating agency and a
subsequent report must be filed every six months. However,
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after a period of three years has passed, if the offender
still has not regained competence to proceed with the criminal
case, the offender must be returned to the committing court
where a subsequent civil commitment may be ordered. �Penal
Code Section 1370(c)(2).]
3)Background : According to background information provided by
the author, "Under the current system county jails are
required to house those who are found to be IST until they may
be transferred to a state hospital; on average this takes 68
days, double the recommended time. During this time the
county spends around $98 a day to house an IST, once
transferred the hospital system, the state spends roughly $450
per day per patient.
"While awaiting transport to a state mental hospital ISTs do not
receive treatment to restore competency. Currently, there are
backlogs in the system which prevent many defendants from
receiving treatment to restore competency, and are they are
left waiting in the county jail.
"The Department of Mental Health (DMH) received a $4.3 million
appropriation in 2007-08 to begin pilot programs to examine
alternative approaches to addressing the IST waitlist problem.
The department, working with a private vendor, established a
pilot program in San Bernardino County to treat ISTs in the
county jail instead of at a state hospital. The pilot program
provides less incentive for potential malingerers, has greater
flexibility to hold down costs, and is able to restore ISTs to
competency in a shorter amount of time than the state
hospitals."
4)The Challenge and Expense of Restoring Mental Competency :
According to the Legislative Analyst's Office, currently
California's state hospitals have an average daily population
of 1,000 ISTs at a cost of about $450 per day per patient, or
about $170 million annually. State law requires that state
hospitals report on the prospects for restoring competence
within 90 days, but also recommends the transfer of ISTs from
jails to state hospitals within 35 days for this purpose. The
three counties aided by this bill usually send ISTs to Patton
State Hospital in San Bernardino County. Patton treats about
1,500 patients. State hospitals usually take about six to
seven months to restore competency. Shortages of beds and
staffs have resulted in long waitlists to be admitted to state
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hospitals. In 2009-10, ISTs waited an average of 87 days to
be transferred from county jail to Patton, almost three times
the court-recommended 35 days. In 2009-10, counties spent at
least $2.5 million housing inmates waiting to be transferred
to Patton due to its waitlist, much more than Atascadero or
Napa State Hospital. �An Alternative Approach: Treating the
Incompetent to Stand Trial (January 3, 2012);
.]
5)Preliminary Results of Pilot Program : The 2007 Budget Act
approved a $4.3 million request from DMH for a pilot program
to test restoring competency at the county level in San
Bernardino. The State ultimately entered into a $300,000
contract with Liberty Healthcare Corporation for 20 beds at
the county jail. Of 42 patient-inmates admitted in the first
nine months of the program starting in January 2011, 19 were
fully restored to competency and 10 were transferred to
Patton. Treatment was started and completed more quickly,
treatment was more effective, and the county's total IST
referrals decreased. The county saved about $200,000 and the
state saved about $1.2 million, for total savings of
approximately $1.4 million, or over $70,000 per IST. (Id.)
6)Are Counties Adequately Capable of Providing Adequate Mental
Health Services ? An original underlying rationale for
treating some patients in specialized state mental hospitals
instead of in county jails is that jails are not equipped to
provide mental health treatment to inmates who are especially
violent or suffer especially severe mental illness. The
November 2011 DMH Transition Team Report quotes the medical
director of Patton State Hospital: "A large majority of
patients in state hospitals are ordered into treatment either
because they have been found to be too complex or dangerous to
be managed by their counties (LPS �Lanterman-Petris-Short]
patients) or are deemed by courts and clinicians to be too
unstable and/or dangerous to be discharged into community
placements (mentally disordered offenders and patients found
not guilty by reason of insanity). These are not the type of
patients that researchers include in clinical trials and the
literature guiding their treatment is very thin . . . . A
high percentage have been given most of the treatments found
on published algorithms and remain unstable and/or dangerous,
leading to the use of higher doses and medication
combinations." �Transition Team Report: California Department
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of Mental Health (November 28, 2011); <
http://www.dmh.ca.gov/News/docs/Transition_Plan/
DMH_TransitionTeam_Report_11-28-2011%28final_sec6%29ch.pdf>.]
Thus, it is possible that some patients may be better served
in the state-hospital system than in county jails. However,
in the pilot program, county-jail IST inmates received
treatment from an outside contractor with specialized
experience, instead of from regular jail staff.
7)Arguments in Support : According to the San Bernardino County
Sheriff's Department , "This pilot program in San Bernardino
County has dramatically improved patient outcome as there is
no delay in treatment. Additionally the long wait list in the
past represented continued expense for the county while the
inmate awaited transfer. Since Restoration of Competency
(ROC) continues retreatment during any wait time, the cost of
incarceration is reimbursed. ROC has proven to lower the
number of ISTs for San Bernardino County Sheriff's Department
that are treated or waiting Patton State Hospital (PSH)
admission, thereby benefitting regional demand and competition
for state hospital bed space. Now when a ROC patient is
requested to transfer to PSH, the average wait time is
currently 15 days."
According to the California State Sheriffs' Association , "The
pilot program provides less incentive for potential
malingerers, has greater flexibility to hold down costs, and
is able to restore ISTs to competency in a shorter amount of
time than the state hospitals. The CSSA supports the
expansion of this pilot program where many IST's were
successfully restored to competency, eliminating the need to
transfer them to a state hospital, providing further savings
to the state."
According to Liberty Healthcare , "Since January of 2011, the
Restoration of Competency (ROC) program has admitted 33
defendants and discharged 21. The average length of treatment
until restored to competency was 58 days-the typical amount of
time a patient would have been on the waiting list for a state
hospital bed. The ROC program promises to be a very cost
effective way to provide high quality restoration of
competency that will free up state hospital beds, reduce jail
waiting lists, speed court processing of incompetency cases
and save the state significant amounts of state budget money."
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8)Prior Legislation : SB 78 (Ducheny), Chapter 172, Statutes of
2007, provides funds for appropriate treatment to individuals
found IST who have not been committed to a state hospital.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
San Bernardino County Sheriff's Department
Liberty Healthcare
Opposition
None
Analysis Prepared by : Jesse Stout / PUB. S. / (916) 319-3744