BILL ANALYSIS �
AB 1907
Page 1
Date of Hearing: April 10, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1907 (Lowenthal) - As Amended: April 9, 2012
SUMMARY : Provides that no individual sentenced to imprisonment
in county jail for specified felonies shall be administered any
psychiatric medication without his or her prior informed
consent, unless specified circumstances are met. Additionally,
makes conforming changes to the process by which inmates of the
California Department of Corrections and Rehabilitation (CDCR)
can be involuntarily medicated. Specifically, this bill :
1)States that a county department of mental health may seek to
initiate the involuntary psychiatric medication of an
individual sentenced to imprisonment in county jail for
specified felonies if all of the following conditions have
been met:
a) A psychiatrist or psychologist has determined that the
inmate has a serious mental disorder.
b) A psychiatrist or psychologist has determined that, as a
result of that mental disorder, the inmate is gravely
disabled and does not have the capacity to refuse treatment
with psychiatric medication, or is a danger to self or
others.
c) A psychiatrist has prescribed one or more psychiatric
medications for the treatment of the inmate's disorder, has
considered the risks, benefits, and treatment alternatives
to involuntary medication, and has determined that the
treatment alternatives to involuntary medication are
unlikely to meet the needs of the patient.
d) The inmate has been advised of the risks and benefits
of, and treatment alternatives to the psychiatric
medication and refuses, or is unable to consent to, the
administration of the medication.
AB 1907
Page 2
e) The inmate is provided a hearing before a
court-appointed hearing officer.
f) The inmate is provided counsel at least 21 days prior to
the hearing, unless emergency medication is being
administered, as specified, in which case the inmate would
receive expedited access to counsel. The hearing shall be
held not more than 30 days after the filing of the notice
with the superior court unless counsel for the inmate
agrees to extend the date of the hearing.
g) The inmate and counsel are provided with written notice
of the hearing at least 21 days prior to the hearing,
unless emergency medication is being administered, as
specified, in which case the inmate would receive an
expedited hearing. The written notice shall do all the
following:
i) Set forth the diagnosis, the factual basis for the
diagnosis, the basis upon which psychiatric medication is
recommended, the expected benefits of the medication, any
potential side effects and risks to the inmate from the
medication, and any alternatives to treatment with the
medication.
ii) Advise the inmate of his or her the right to be
present at the hearing, the right to be represented by
counsel at all stages of the proceedings, the right to
present evidence, and the right to cross-examine
witnesses. Counsel for the inmate shall have access to
all medical records and files of the inmate, but shall
not have access to confidential sections of the inmate's
central file which contain materials unrelated to medical
treatment.
iii) Inform the inmate of his or her right to contest the
finding of the court-appointed hearing officer
authorizing treatment with involuntary medication by
filing a writ of administrative mandamus, as specified,
and his or her right to file a petition for writ of
habeas corpus with respect to any decision of the county
department of mental health to continue treatment with
involuntary medication after the court-appointed hearing
officer has authorized treatment.
AB 1907
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h) A court-appointed hearing officer determines by clear
and convincing evidence that the inmate has a mental
illness or disorder, that as a result of that illness, the
inmate is gravely disabled and lacks the capacity to
consent to or refuse treatment with psychiatric medications
or is a danger to self or others if not medicated, that
there is no less intrusive alternative to involuntary
medication, and that the medication is in the inmate's best
medical interest. In the event of any statutory notice
issues with either initial or renewal filings by the county
department of mental health, the court-appointed hearing
officer shall hear arguments as to why the case should be
heard, and shall consider factors such as the ability of
the inmate's counsel to adequately prepare the case and to
confer with the inmate, the continuity of care, and if
applicable, the need for protection of the inmate or
institutional staff that would be compromised by a
procedural default.
i) The historical course of the inmate's mental disorder,
as determined by available relevant information about the
course of the inmate's mental disorder, shall be considered
when it has direct bearing on the determination of whether
the inmate is a danger to self or others, or is gravely
disabled and incompetent to refuse medication as a result
of the mental disorder.
j) An inmate is entitled to file one motion for
reconsideration following a determination that he or she
may receive involuntary medication, and may seek a hearing
to present new evidence, upon good cause shown.
2)States that nothing in this section is intended to prohibit a
physician from taking appropriate action in an emergency.
3)Defines "emergency" as when there is a sudden and marked
change in an inmate's mental condition so that action is
immediately necessary for the preservation of life or the
prevention of serious bodily harm to the inmate or others, and
it is impractical, due to the seriousness of the emergency, to
first obtain informed consent.
4)States that if psychiatric medication is administered in an
emergency, the medication shall only be that which is required
to treat the emergency condition and shall be administered for
AB 1907
Page 4
only so long as the emergency continues to exist.
5)Requires that, if the county department of mental health's
clinicians identify a situation that jeopardizes the inmate's
health or well-being as the result of a serious mental
illness, and necessitates the continuation of emergency
medication beyond the initial 72 hours pending the full mental
health hearing, the county department give notice to the
inmate and his or her counsel of its intention to seek an ex
parte order to allow the continuance of medication pending the
full hearing. The notice must be served upon the inmate and
counsel at the same time the inmate is given written notice
that the involuntary medication proceedings are being
initiated and is appointed counsel.
6)Allows an ex parte order for the continued involuntary
medication of the inmate to be issued upon a showing that, in
the absence of the medication, there is a reasonable
likelihood that the emergency conditions are likely to
reoccur.
7)Requires the ex parte order for the continued involuntary
medication of the inmate be supported by an affidavit from the
psychiatrist or psychologist showing specific facts.
8)Gives the inmate and the inmate's counsel two business days to
respond to the county department's ex parte request to
continue interim medication, and may present facts supported
by an affidavit in opposition to the department's request.
9)Requires a court-appointed hearing officer to review the ex
parte request and shall have three business days to determine
the merits of the department's request.
10)If the ex parte order for the continued involuntary
medication of the inmate is issued, the psychiatrist may
continue the administration of the medication until a hearing
before a court- appointed hearing officer.
11)Requires that, if an inmate is being involuntarily
administered psychiatric medication on an emergency basis, the
county department of mental health file with the superior
court, and serve on the inmate and his or her counsel, written
notice unless the inmate gives informed consent to continue
the medication or a psychiatrist determines that the
AB 1907
Page 5
psychiatric medication is not necessary and administration of
the medication is discontinued. If written notice is given,
it must do the following:
a) Set forth the diagnosis, the factual basis for the
diagnosis, the basis upon which psychiatric medication is
recommended, the expected benefits of the medication, any
potential side effects and risks to the inmate from the
medication, and any alternatives to treatment with the
medication.
b) Advise the inmate of the right to be present at the
hearing, the right to be represented by counsel at all
stages of the proceedings, the right to present evidence,
and the right to cross-examine witnesses. Counsel for the
inmate shall have access to all medical records and files
of the inmate, but shall not have access to confidential
sections of the inmate's central file which contain
materials unrelated to medical treatment.
c) Inform the inmate of his or her right to contest the
finding of the court-appointed hearing officer authorizing
treatment with involuntary medication by filing a writ of
administrative mandamus, as specified, and his or her right
to file a petition for writ of habeas corpus with respect
to any decision of the county department of mental health
to continue treatment with involuntary medication after the
court-appointed hearing officer has authorized treatment
with involuntary medication.
12)Requires that, if an inmate is being involuntarily
administered psychiatric medication on an emergency basis, a
hearing before a court-appointed hearing officer commence
within 21 days of the filing and service of notice, unless
counsel for the inmate agrees to a different time.
13)Specifies that an inmate being involuntarily administered
psychiatric medication on an emergency basis has the same due
process protections as an inmate being involuntarily medicated
under a court order, the county department of mental health
must prove the same elements supporting involuntary
medication, and the court-ordered hearing officers is required
to make the same findings related to involuntary medication.
14)States that the determination that an inmate may receive
AB 1907
Page 6
involuntary medication shall be valid for one year from the
date of the determination, regardless of whether the inmate
subsequently gives his or her informed consent.
15)States that the involuntary medication must be discontinued
one year after the date of determination unless the inmate
gives his or her informed consent to the administration of the
medication or the county department of mental health files
with the superior court, no less than 21 days prior to the
expiration of the current order, a written notice indicating
the department's intent to renew the involuntary medication
order. The notice must also be served on the inmate and his
or her counsel.
16)Specifies that the county department of mental health must
provide the same due process protection as those given for the
initial order.
17)States that renewal orders are valid for one year from the
date of the hearing.
18)Requires that an order renewing an existing order be granted
based on clear and convincing evidence that the inmate has a
serious mental disorder that requires treatment with
psychiatric medication, and that, but for the medication, the
inmate would revert to the behavior that was the basis for the
prior order authorizing involuntary medication, coupled with
evidence that the inmate lacks insight regarding his or her
need for the medication, such that it is unlikely that the
inmate would be able to manage his or her own medication and
treatment regimen. No new acts need to be alleged or proven.
19)Requires that if the county department of mental health
wishes to add a basis to an existing order, the department
must give the inmate and the inmate's counsel notice in
advance of the hearing, specifying what additional basis is
being alleged and what qualifying conduct within the past year
supports the additional basis. This additional basis must be
proved by the department by clear and convincing evidence to a
hearing by a court-appointed hearing officer.
20)Requires the renewal hearing be conducted prior to the
expiration of the current order.
21)Specifies that in the event of a conflict between this
AB 1907
Page 7
section and provisions of the Administrative Procedures Act,
as specified, this section controls.
22)Defines "counsel," for purposes of this section, to include a
county patient rights advocate.
23)Clarifies that the process for involuntarily medicating an
inmate of CDCR also applies to inmates housed within a state
prison.
24)Clarifies that if an inmate of CDCR is administered
psychiatric medication involuntarily on an emergency basis, he
or she would receive an expedited hearing and must receive
expedited access to counsel.
25)States that in the event of any statutory notice issues with
either initial or renewal filings by the CDCR, the
administrative law judge (ALJ) shall hear arguments as to why
the case should be heard, and shall consider factors such as
the ability of the inmate's counsel to adequately prepare the
case and to confer with the inmate, the continuity of care,
and if applicable, the need for protection of the inmate or
institutional staff that would be compromised by a procedural
default.
26)Removes the requirement that an inmate of CDCR who is
involuntarily administered psychiatric medication on an
emergency basis only be medicated for five days unless an ALJ
issues an order authorizing the continuing involuntary
medication of the inmate.
27) Requires that, if CDCR's clinicians identify a situation
that jeopardizes the inmate's health or well-being as the
result and a serious mental illness, and necessitates the
continuation of emergency beyond the initial 72 hours pending
the full mental health hearing, CDCR will give notice to the
inmate and his or her counsel of its intention to seek an ex
parte order to allow the continuance of medication pending the
full hearing. The notice must be served upon the inmate and
counsel at the same time the inmate is given written notice
that the involuntary medication proceedings are being
initiated and is appointed counsel.
28)Specifies that an ex parte order for emergency involuntary
medication of an inmate of CDCR may be issued if there is a
AB 1907
Page 8
showing that in the absence of medication, there is a
reasonable likelihood that the emergency conditions are likely
to reoccur and must be supported by an affidavit from the
psychiatrist showing specific facts.
29)Specifies that once CDCR has requested an ex parte order for
emergency involuntary medication of an inmate of CDCR, that
inmate and his or her counsel have two business days to
respond to the request and may present facts supported by an
affidavit in opposition to the request.
30)Requires an ALJ to review the ex parte request and shall have
three business days to determine the merits of the CDCR's
request.
31)Clarifies that in order to renew an existing involuntary
medication order, CDCR may file with the Superior Court of the
Office of Administrative Hearings a written notice indicating
the department's intent to new the existing order.
32)Specifies that an order to renew an existing involuntary
medication order for an inmate of CDCR, there must clear and
convincing evidence that the inmate has a serious mental
disorder that requires treatment with psychiatric medication,
along with other specified findings.
33)Requires that if CDCR wishes to add a basis to an existing
order, the department must give the inmate and the inmate's
counsel notice in advance of the hearing, specifying what
additional basis is being alleged and what qualifying conduct
within the past year supports the additional basis. This
additional basis must be proved by the department by clear and
convincing evidence by a hearing by an ALJ.
34)Requires CDCR to adopt regulations to fully implement this
section.
35)Replaces references to "psychotropic" medications with
"psychiatric" medications.
EXISTING LAW :
1)States that, except for where allowed by law, no person
sentenced to imprisonment in a state prison shall be
administered any psychotropic medication without his or her
AB 1907
Page 9
prior informed consent. �Penal Code Section 2602(a).]
2)States that if a psychiatrist determines that an inmate should
be treated with psychotropic medication, but the inmate does
not consent, the inmate may be involuntarily treated with the
medication. Treatment may be given on either an emergency or
nonemergency basis, as specified. �Penal Code Section
2602(b).]
3)Allows CDCR to seek to initiate involuntary medication on a
nonemergency basis only if all of the following conditions
have been met �Penal Code Section 2602(c)]:
a) A psychiatrist has determined that the inmate has a
serious mental disorder.
b) A psychiatrist has determined that, as a result of that
mental disorder, the inmate is gravely disabled or a danger
to self or others and does not have the capacity to refuse
treatment with psychotropic medications.
c) A psychiatrist has prescribed one or more psychotropic
medications for the treatment of the inmate's disorder, has
considered the risks, benefits, and treatment alternatives
to involuntary medication, and has determined that the
treatment alternatives to involuntary medication are
unlikely to meet the needs of the patient.
d) The inmate has been advised of the risks and benefits
of, and treatment alternatives to, the psychotropic
medication and refuses or is unable to consent to the
administration of the medication.
e) The inmate is provided a hearing before an ALJ.
f) The inmate is provided counsel at least 21 days prior to
the hearing. The hearing shall be held not more than 30
days after the filing of the notice with the Office of
Administrative Hearings, unless counsel for the inmate
agrees to extend the date of the hearing.
g) The inmate and counsel are provided with written notice
of the hearing at least 21 days prior to the hearing. The
written notice shall do all of the following:
AB 1907
Page 10
i) Set forth the diagnosis, the factual basis for the
diagnosis, the basis upon which psychotropic medication
is recommended, the expected benefits of the medication,
any potential side effects and risks to the inmate from
the medication, and any alternatives to treatment with
the medication.
ii) Advise the inmate of the right to be present at the
hearing, the right to be represented by counsel at all
stages of the proceedings, the right to present evidence,
and the right to cross-examine witnesses. Counsel for the
inmate shall have access to all medical records and files
of the inmate, but shall not have access to the
confidential sections of the inmate's central file which
contain materials unrelated to medical treatment.
iii) Inform the prisoner of his or her right to contest
the finding of an ALJ authorizing treatment with
involuntary medication by filing a petition for writ of
administrative mandamus, as specified, and his or her
right to file a petition for writ of habeas corpus with
respect to any decision of the CDCR to continue treatment
with involuntary medication after the ALJ has authorized
treatment with involuntary medication.
h) The ALJ determines by clear and convincing evidence that
the inmate has a mental illness or disorder, that as a
result of that illness the inmate is gravely disabled and
lacks the capacity to consent to or refuse treatment with
psychotropic medications or is a danger to self or others
if not medicated, that there is no less intrusive
alternative to involuntary medication, and that the
medication is in the inmate's best medical interest.
i) The historical course of the inmate's mental disorder,
as determined by available relevant information about the
course of the inmate's mental disorder, shall be considered
when it has direct bearing on the determination of whether
the inmate is a danger to themselves or others, or is
gravely disabled and incompetent to refuse medication as
the result of a mental disorder.
j) An inmate is entitled to file one motion for
reconsideration following a determination that he or she
may receive involuntary medication, and may seek a hearing
AB 1907
Page 11
to present new evidence, upon good cause shown.
4)States that nothing in this section is intended to prohibit a
physician from taking appropriate action in an emergency.
�Penal Code Section 2602(d).]
5)Defines an "emergency" as a sudden and marked change in an
inmate's mental condition so that action is immediately
necessary for the preservation of life or the prevention of
serious bodily harm to the inmate or others, and it is
impractical, due to the seriousness of the emergency, to first
obtain informed consent. �Penal Code Section 2602(d).]
6)States that if psychotropic medication is administered during
an emergency, the medication shall only be that which is
required to treat the emergency condition and shall be
administered for only so long as the emergency continues to
exist, but in no event longer than five days after the written
notice and counsel are provided, as specified, unless the
department first obtains an order from an ALJ authorizing the
continuance of medication beyond five days. �Penal Code
Section 2602(d).]
7)Allows the order for involuntarily medicating an inmate to be
issued ex parte upon a showing that in the absence of the
medication the emergency is likely to recur, supported by an
affidavit showing specific facts. �Penal Code Section
2602(d).]
8)States that the inmate may present facts supported by an
affidavit in opposition to the request for an ex parte
involuntary medication order. �Penal Code Section 2602(d).]
9)Allows for the continued administration of psychotropic
medications on an emergency basis until a hearing before an
ALJ, as specified. �Penal Code Section 2602(d).]
10)Requires CDCR, if an inmate is being involuntarily
administered psychiatric medication on an emergency basis,
file with Office of Administrative Hearings, and serve the
inmate and his or her counsel, written notice within 72 hours
unless the inmate gives informed consent to continue the
medication or a psychiatrist determines that the psychiatric
mediation is not necessary and administration of the
medication is discontinued. If written notice is given, it
AB 1907
Page 12
must do the following �Penal Code Section 2602(d)(1)]:
a) Set forth the diagnosis, the factual basis for the
diagnosis, the basis upon which psychotropic medication is
recommended, the expected benefits of the medication, any
potential side effects and risks to the inmate from the
medication, and any alternatives to treatment with the
medication.
b) Advise the inmate of the right to be present at the
hearing, the right to be represented by counsel at all
stages of the proceedings, the right to present evidence,
and the right to cross-examine witnesses. Counsel for the
inmate shall have access to all medical records and files
of the inmate, but shall not have access to the
confidential sections of the inmate's central file which
contain materials unrelated to medical treatment.
c) Inform the prisoner of his or her right to contest the
finding of an ALJ authorizing treatment with involuntary
medication by filing a petition for writ of administrative
mandamus pursuant, as specified, and his or her right to
file a petition for writ of habeas corpus with respect to
any decision of the Department of Corrections and
Rehabilitation to continue treatment with involuntary
medication after the ALJ has authorized treatment with
involuntary medication.
11)Specifies that if an inmate is being involuntarily medicated
on an emergency basis, the hearing before an ALJ shall
commence within 21 days of the filing and service of the
notice, unless counsel for an inmate agrees to a longer period
of time. �Penal Code Section 2602(d)(2).]
12)Specifies that an inmate being involuntarily administered
psychiatric medication on an emergency basis has the same due
process protections as an inmate being involuntarily medicated
under a court order, CDCR must prove the same elements
supporting involuntary medication, and the ALJ is required to
make the same findings related to involuntary medication.
�Penal Code Section 2602(d)(3).]
13)States that the determination that an inmate may receive
involuntary medication shall be valid for one year from the
date of the determination, regardless of whether the inmate
AB 1907
Page 13
subsequently gives his or her informed consent. �Penal Code
Section 2602(e).]
14)States that if a determination has been made to involuntarily
medicate an inmate, the medication shall be discontinued one
year after the date of that determination, unless the inmate
gives his or her informed consent to the administration of the
medication, or unless a new determination is made, as
specified. �Penal Code Section 2602(f).]
15)States that to renew an existing order allowing involuntary
medication, CDCR shall file with the Office of Administrative
Hearings, and shall serve the inmate and his or her counsel,
the written notice, as specified, and shall state that the
request is for a renewal. �Penal Code Section 2602(g).]
16)Requires that the request to renew the order shall be filed
and served no later than 21 days prior to the expiration of
the current order authorizing involuntary medication. �Penal
Code Section 2602(g)(1).]
17)Requires that, to obtain a renewal order, CDCR must provide
the same due process protection as given during the initial
certification, prove the same elements supporting involuntary
medication, and the ALJ is required to make the same findings
related to involuntary medication. �Penal Code Section
2602(g)(2).]
18)States that renewal orders are valid for one year from the
date of the hearing. �Penal Code Section 2602(g)(3).]
19)Requires that an order renewing a prior order may be granted
based on clear and convincing evidence that, but for the
medication, the inmate would revert to the behavior that was
the basis for the prior order authorizing involuntary
medication, coupled with evidence that the inmate lacks
insight regarding his or her need for the medication, such
that it is unlikely that the inmate would be able to manage
his or her own medication and treatment regimen. No new acts
need be alleged or proven. �Penal Code Section 2602(g)(4).]
20)Requires the hearing on any petition to renew an order for
involuntary medication shall be conducted prior to the
expiration of the current order. �Penal Code Section
2602(g)(5).]
AB 1907
Page 14
21)Specifies that in the event of a conflict between this
section and provisions of the Administrative Procedures Act,
as specified, this section controls. �Penal Code Section
2602(h).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1907 extends
the streamlined process that currently applies only to inmates
in state prison to inmates sentenced to county jails, thereby
shortening the time frame from 45 days to no more than 30 days
for an inmate in a county jail to receive long-term medication
to improve their mental health if they are either gravely
disabled or a danger to themselves or others.
"In addition, AB 1907 unifies the renewal timeline for
involuntary treatment orders and simplifies the process and
terminology to ensure that the inmate is provided with
appropriate mental health treatment consistent with his or her
due process rights, and ensured that officials take into
account the inmate's mental health history when determining
whether or not the prisoner is gravely disabled or a danger to
themselves or others."
2)Background : According to information provided by the author,
"AB 1907 is follow-up legislation to AB 1114 (B. Lowenthal)
Chapter 665, Statutes of 2011 which streamlined the process
for inmates sentenced to state prisons. While AB 1114
originally included inmates sentenced to state prison OR
county jails, an amendment taken in Senate Public Safety
limited the bill to only state prisons.
"AB 1114 changed the procedure for the involuntary
administration of psychotropic medication pursuant to the
Keyhea v. Rushen court decision of 1986 by removing the
certification review hearing that precedes the formal
adversarial hearing and simplifying that process, along with
the terminology used, to ensure that the prisoner is provided
with appropriate, necessary, and beneficial mental health
treatment that is also consistent with his or her due process
rights.
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Page 15
"The Keyhea court held that equal protection required that
prisoners subject to involuntary psychotropic medication be
afforded the same rights as non-prisoners. At the time of the
Keyhea decision, however, there were no statutes defining the
rights of non-prisoners subject to involuntary medication.
Therefore, the court adopted the procedures used when a court
civilly commits a person as gravely disabled or a danger to
self or others. These procedures include an increasingly
stringent set of reviews and hearings depending on the length
of the commitment sought. The Keyhea injunction also adopted
statutes that define terms utilized to determine whether a
person should be removed from society for commitment to a
mental hospital.
"Prior to AB 1114, California Penal Code (PC) Section 2600
incorporated the Keyhea permanent injunction, which sets forth
the requirements and procedures the California Department of
Corrections and Rehabilitation (CDCR) must comply with prior
to involuntarily medicating mentally disordered inmates with
psychotropic medication.
"The Keyhea injunction essentially required that a prisoner
being treated for a serious mental illness must meet the
standard for a long term civil commitment in order to be
provided with long term involuntary psychotropic medication.
This required, for example, that a prisoner must be gravely
disabled to obtain an order for one year of treatment with
involuntary medication.
"In addition, Keyhea required a certification review hearing to
provide a prisoner with involuntary medication for up to 47
days. It then required an adversarial hearing with
representation by counsel before an Administrative Law Judge
(ALJ) to provide the prisoner with long term medication. The
certification review hearing meets the constitutional due
process standard established by the United States Supreme
Court in Washington v. Harper. However, because California
provided the prisoner with an ALJ hearing that far exceeded
basic due process requirements; the certification review
hearing was viewed as unnecessary.
"Due to a prior court decision in 1982, De Lancie v. Superior
Court �31 Cal. 3d 865], which determined that county jails are
also subject to PC Section 2600, county jails are also, or had
been prior to AB 1114, subject to the protocols in the Keyhea
AB 1907
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injunction. While AB 1114 incorporated the new process into
the Penal Code, it also eliminated the reference to the Keyhea
injunction, leaving state law silent on the appropriate
involuntary treatment process for inmates sentenced to county
jails.
"AB 1907 ensures that the streamlined process the currently
applies to state prisons as a result of AB 1114 will also
apply to an inmate in need of involuntary treatment in a
county jail."
3)Involuntary Medication and Inmates : The United States Supreme
Court has held that a state department of prisons has the
authority to involuntarily administer psychiatric medications
to inmates who are gravely disabled or a danger to self or
others because of mental illness. �Washington v. Harper, 494
U.S. 210 (1990).] The plaintiff in that case, an inmate in
the Washington State Penitentiary, was diagnosed with
manic-depressive disorder and was sent to the Special Offender
Center, a correctional institute to diagnose and treat
convicted felons with serious mental disorders. While there,
he was involuntarily medicated with psychiatric medications,
and challenged the state's authority to medicate him without
his consent, arguing that such involuntary medication violated
both substantive and procedural due process.
Addressing the substantive due process claim first, the court
held that while the plaintiff did have a right to refuse
medication, that right must be balanced with the state's
legitimate penological interests. (494 U.S. at 224-5.) The
state had a legitimate interest in protecting that inmate and
other inmates from harm, and involuntarily medicating the
plaintiff was reasonably related to that interest. (494 U.S.
at 225.)
The court also held that the hearing process implemented by the
state department of corrections satisfied procedural due
process requirements. (Id. at 228.) The procedure for
involuntarily administering psychiatric medications to an
inmate had four parts. First, a psychiatrist must determine
that the inmate should be treated with psychiatric medication
if the inmate suffers from a mental disorder or is gravely
disabled and is a danger to self or others. (Id. at 215.)
Second, the inmate is entitled to a hearing before a committee
of health professionals not involved in his or her treatment,
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in which the committee determines by a majority vote that the
inmate suffers from a mental disorder and is gravely disabled
or dangerous. (Id.) Third, the inmate is given certain
procedural rights, including at least 24-hour notice of the
hearing, notice of the tentative diagnosis, notice of the
factual basis for the diagnosis, and explanation by the staff
as to why they believe the medication is necessary. (Id. at
216.) At the hearing, the inmate is entitled to attend,
present evidence and witnesses, cross-examine staff witnesses,
and to the assistance of a lay advisor who has not been
involved in the inmate's case, but understands the psychiatric
issues. (Id.) Fourth, there must be periodic review of the
involuntary medication order. (Id.)
The procedures set forth in this bill meet, and in some case
exceed, the requirements in Washington v. Harper. The initial
order for involuntary medication is made by a psychiatrist
upon a determination that the inmate is gravely disabled or is
a danger to self or others because of mental illness. The
inmate is entitled to a hearing, but with greater due process
protections, including an ALJ or court-appointed hearing
officer presiding over the hearing. The inmate is entitled to
all the procedural rights, in addition to counsel, which the
Court specifically stated was not required. (Id. at 228.)
Finally, the involuntary medication order is subject to review
every year by an ALJ or court-appointed hearing officer.
4)Related Legislation :
a) AB 1114 (Lowenthal), Chapter 665, Statutes of 2011,
changed the procedures for involuntarily medicating inmates
of CDCR.
b) SB 795 (Blakeslee) would have changed the process for
involuntary medication of defendants found mentally
incompetent during the criminal process. SB 795 heard by
the Senate Public Safety Committee.
5)Previous Legislation :
a) AB 2380 (Dymally), of the 2005-06 Legislative Session,
would have clarified that "treatment" for medically
disordered offenders paroled to other facilities for
treatment includes involuntary medication. AB 2380 failed
passage in this Committee.
AB 1907
Page 18
b) AB 1424 (Thompson), Chapter 506, Statutes of 2001,
related to the involuntary medication for individuals under
the Lanterman-Petris-Short Act.
c) AB 2798 (Thompson), of the 1999-2000 Legislative
Session, would have authorized a judicially committed
forensic patient in a state hospital to be medicated
involuntarily with antipsychotic mediation in accordance
with specified procedures. AB 2798 was never heard by this
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
National Association of Social Workers
California Psychiatric Association
California Council of Community Mental Health Agencies
Opposition
None
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744