BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 1693
A
AUTHOR: Hagman
B
VERSION: March 26, 2012
HEARING DATE: June 26, 2012
1
FISCAL: Yes
6
9
CONSULTANT: Mareva Brown
3
SUBJECT
Mental health: persons incompetent to stand trial: pilot
program expansion
SUMMARY
This bill permits the Department of Mental Health (DMH) to
expand an existing pilot program designed to restore
competency for defendants who are found incompetent to
stand trial (IST) while those defendants are in county
jail, and in lieu of a state hospital placement, as
specified. The pilot would be expanded from San Bernardino
to L.A. and Kern Counties, as well as any county that
chooses to participate.
ABSTRACT
Existing law
1.Prohibits a person from being tried or sentenced while
mentally incompetent. (PC 1367)
2.Defines mentally incompetent as being unable to
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understand the nature of the criminal proceedings or to
assist counsel in the conduct of a defense in a rational
manner as the result of a mental disorder or
developmental disability. (PC 1367)
3.Establishes a court process for declaring a person
legally incompetent (PC 1369) and requires that a
defendant be delivered by the sheriff to a state mental
hospital or other specified treatment facility that will
promote the defendant's speedy restoration to mental
competence, as specified. (PC 1370 (a)(1)(B)(i))
4.Provides that if, after treatment, a defendant is found
to be restored to competence, the criminal proceeding
shall resume, and if the defendant is found mentally
incompetent, the trial shall be suspended until the
person becomes mentally competent. (PC 1370 (a) (1)
5.Requires that within 90 days of a commitment for
evaluation of competency, the state hospital must report
to the court whether the defendant is competent or is
likely to become competent to stand trial, as specified.
(PC 1370 (b))
6.Requires that defendants declared IST be transferred to a
state hospital within a reasonable amount of time to
comply with the 90-day requirement. (In re Mille (2010)
182 Cal.App.4th 635, 650 (2010))
This bill
1.Permits the state Department of Mental Health to expand
an existing pilot program creating an IST treatment and
evaluation program in a county jail in lieu of in a state
hospital IST program.
2.Requires Kern and Los Angeles counties to cooperate with
DMH to establish competency restoration programs, if the
department chooses to expand the pilot program.
3.Requires that competency restoration programs shall
include but not be limited to:
a. Objective competency assessment upon admission
b. Individualized treatment programs
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c. Multimodal, experiential competency educational
experiences
d. An educational component addressing the
criminal justice system, including but not limited
to:
i. Various charges and their severity
ii. Sentencing pleas
iii. Roles of courtroom personnel
iv. Adversarial nature of the trial
process
v. Evaluating evidence
e. Additional educational components for
individuals with specific knowledge deficits.
f. Periodic reassessment of competency
g. Medication treatment
h. Capacity and involuntary treatment assessment
4.Requires that admissions criteria for competency
restoration programs be coordinated through the
department with initial priority given to ISTs most
likely to be restored to competency.
5.Makes a legislative declaration that a special law is
necessary to address a local issue because of
historically long waiting lists for IST treatment
programs in Los Angeles and Kern counties, which expose
the state and counties to potential court involvement due
to delays beyond court-recommended times.
FISCAL IMPACT
An Assembly Appropriations Committee analysis of the bill
noted that precise costs and savings are unknown, but based
on the San Bernardino pilot program, startup costs for the
two counties specified in the bill would be in the range of
$1 million (GF), offset within about one year by GF savings
in the range of $4 million and local savings in the range
of $700,000.
BACKGROUND AND DISCUSSION
Purpose of the bill
The author states that a backlog in transferring defendants
who are IST to state hospitals prevents defendants from
receiving treatment and leaves them waiting in the county
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jail. "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 to the
hospital system, the state spends roughly $450 per day per
patient."
Based on results from the San Bernardino pilot program,
allowing immediate treatment of IST defendants in jail,
rather than delaying treatment until a state hospital bed
opens "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." Defendants who may not be incompetent
to stand trial but prefer placement in a state hospital to
time in a jail or prison are considered malingerers by law
enforcement.
IST
About one in five of California's state hospital patients
was committed based on a finding of incompetency to stand
trial, or about 1,000 patients at any given time. State law
sets out a process for individuals who have been declared
by a judge to be incompetent based on results of
psychiatric evaluations.
A defendant then must be transferred to a state hospital
for evaluation, and a report to the court must be issued
within 90 days, assessing the defendant's likelihood of
being restored to competency for purposes of facing trial.
The 90-day window reflects U.S. Supreme court decisions
which found that a person could not be held for more than a
reasonable period of time necessary to determine whether a
restoration of competency is likely in the foreseeable
future. Treatment may include training in courtroom
procedures, medication, education groups, structured
therapy, group therapy and other therapy.
Backlog
If a bed is available in a state hospital for a defendant
who has committed a violent or sexually violent felony,
they are transferred from the jail to the state hospital.
However, California operates a running wait list of between
200 and 300 IST patients, leaving those defendants to wait
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in county jails for open state hospital beds, according to
a Legislative Analyst's Office report released in January,
An Alternative Approach: Treating the Incompetent to Stand
Trial."
Wait lists vary by institution, ranging from 33 days at
Napa State Hospital to 87 days at Patton State Hospital in
San Bernardino County. Some transfers to Patton have taken
as long as 197 days. Specific counties feed into each
hospital, based on the hospital's location. Patton, the
most impacted, receives patients from Los Angeles, Kern,
San Bernardino, Orange, Riverside, Santa Barbara, San
Diego, Stanislaus, Ventura and other counties, according to
the LAO report.
This situation is legally perilous for the state - a judge
ruled in 2010 that the state must act more quickly than is
current practice and the LAO projected that an order
requiring the immediate vacation of the wait list could
cost the state $20 million annually. In the 2010 case,
Freddy Mille v Los Angeles County, an appellate court ruled
that a person determined to be IST must be transferred to a
state hospital within a "reasonable amount of time" to
comply with the 90-day statutory window to report back to
the court. The court specifically noted that Mille's
treatment with antipsychotic medication while housed in a
jail did not legally constitute appropriate treatment
efforts for the restoration of mental competency.
"Here, following the commitment order, Mille was kept
in the county jail for 84 days before the sheriff
transferred him to Patton for evaluation and
treatment. The fact the county jail administered
antipsychotic medication to Mille while he was housed
there, pursuant to section 1369.1, was not a
substitute for a timely transfer to Patton for
evaluation and treatment to restore Mille's competence
to stand trial." <1>
As a result of that and other rulings, the courts
recommended that the transfer of IST defendants from jail
-------------------------
<1> In re Mille (2010) 182 Cal.App.4th 635, 650).
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to a state hospital be completed in no more than 35 days.
San Bernardino County pilot
The 2007 annual Budget Act permitted DMH to pilot an IST
program in county jails. A single pilot ultimately was
launched by San Bernardino County in January 2011 using 20
jail beds and contracted staff with a company that provides
IST treatment in other states. Under the contract, Liberty
Healthcare Corp. provides intensive psychiatric treatment,
acute stabilization services and court-mandated services
for IST patients. San Bernardino County jail officials
provide security and management of the jail's IST
population as well as food and medication, for which
Liberty pays the county.
Liberty's contract pays $278 per day, per patient, of which
it pays $68 per day to the jail. By comparison, a state
hospital IST program costs $450 per patient per day. After
70 days, if competency has not been restored, patients are
transferred to the state hospital system, where their
treatment continues. Initial outcomes show nearly half of
patients treated in the pilot were restored to competency
and the average treatment time was 54 days, according to
the LAO.
Legislative Analysis Office
The LAO's report concludes that the San Bernardino pilot
program saved approximately $70,000 per patient and that it
is reasonable to project that savings to other counties,
should the pilot be expanded. It recommended expanding the
program first to the feeder counties for Patton and
Atascadero state hospitals and specifically to Los Angeles
and Kern and San Diego counties, which have larger IST
populations. This bill reflects those recommendations.
The LAO also suggested that holding IST training in the
county jail decreases incentives for malingerers, who feign
mental illness before the court to achieve placement in a
state hospital rather than in jail or prison.
Arguments in support
The California State Sheriff's Association writes that the
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pilot program in San Bernardino County 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 San Bernardino County Sheriff-Coroner writes that their
pilot program has dramatically improved patient outcomes
and permits the county to receive reimbursement for the
cost of incarceration during treatment. Wait times for
those patients who do need treatment at Patton State
hospital have dropped to 15 days.
Arguments in opposition
The California Department of Finance writes that the bill
is inconsistent with the Administration's proposal to
expand IST treatment in county jails and could result in a
reimbursable state mandate (by specifying that programs be
initiated in Los Angeles and Kern counties), thereby
reducing anticipated savings.
The California Public Defenders Association writes that
mentally ill persons held in custody should be treated by
trained medical professionals in a hospital setting, where
their medical needs will be prioritized. ? "(A) county jail
is not a facility that is set up to provide meaningful
treatment, especially to mentally ill clients, and least of
all to mentally ill individuals who are found incompetent
to stand trial."
Related legislation
AB 1470 (2012) a mental health trailer bill, expands the
existing pilot program in San Bernardino County statewide.
It was passed by the Senate and Assembly on June 15.
SB 78, (Ducheney) Chapter 172, Budget Act of 2007, provided
$4.3 million in funding to the Department of Mental Health
to begin pilot programs to examine alternative approaches
to IST treatment.
C omments
This year's 213-page state hospital budget trailer bill, AB
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1470, expands the existing pilot program in a number of
ways, including deleting the requirement that treatment in
county jails be limited to provision of medication,
specifying that IST treatment may take place in a county
jail and requiring the state Department of State Hospitals
(formerly called DMH) to provide guidelines for evaluating
whether to send a defendant to a county jail IST program or
one within a state hospital.
The author states that the department-sponsored trailer
bill puts oversight and authority of the jail IST programs
with the state, while this bill authorizes a contractor to
provide appropriate IST treatment.
Committee members may want to discuss with the author how
this bill would materially change what has been supported
in the TBL and why this is necessary.
Additionally, staff recommends changing "Department of
Mental Health" to "state Department of State Hospitals"
throughout the bill to reflect the re-named department. As
this bill is double-referred to the Senate Public Safety
committee, these amendments can be taken there.
PRIOR VOTES
Assembly Floor: 76 - 0
Assembly Appropriations:17 - 0
Assembly Human Services: 6 - 0
POSITIONS
Support: California State Sheriff's Association
County of Los Angeles
Liberty Healthcare Corp.
San Bernardino County Sheriff-Coroner
Oppose: California Department of Finance
California Public Defenders Association
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