BILL ANALYSIS �
AB 1907
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1907 (Bonnie Lowenthal)
As Amended August 6, 2012
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |78-0 |(May 30, 2012) |SENATE: |37-0 |(August 23, |
| | | | | |2012) |
-----------------------------------------------------------------
Original Committee Reference: PUB. S.
SUMMARY : Provides that no individual sentenced to imprisonment
in county jail 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.
The Senate amendments :
1)State that when CDCR seeks a nonemergency involuntary
medication order for an inmate, failure of the department to
provide timely or adequate notice pursuant to this section
shall be excused only upon a showing of good cause and the
absence of prejudice to the inmate. In making this
determination, the administrative law judge may consider
factors including, but not limited to 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.
2)State that in a hearing for the renewal of an involuntary
medication order, an inmate of CDCR is entitled to the same
due process rights as when the order was initially granted.
3)State that an inmate of a county jail may be involuntarily
medicated if the inmate and his and her counsel and informed
of in writing, of the right to appeal the determination to the
superior court or the court of appeal, as specified.
4)Specify that a superior court judge, a court-appointed
commissioner or referee, or a court-appointed hearing officer
AB 1907
Page 2
may conduct the hearing regarding involuntary medication
orders.
5)State that treatment of the inmate in a facility is not
required in order to continue medication under this
subdivision unless the treatment is otherwise medically
necessary.
6)State that in a hearing for the renewal of an involuntary
medication order, an inmate of a county jail is entitled to
the same due process rights as when the order was initially
granted.
7)Remove the provision which added a county patient rights
advocate to the definition of counsel for purposes of this
section.
8)Allow a county department, other than the county department of
mental health, to administer the involuntary medication
program in county jails, as specified.
AS PASSED BY THE ASSEMBLY , this bill provided that no individual
sentenced to imprisonment in county jail 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 CDCR
can be involuntarily medicated. Specifically, this bill :
1)Stated 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
AB 1907
Page 3
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;
e) The inmate is provided a hearing before a superior court
judge, a court-appointed commissioner or referee, or
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; and,
AB 1907
Page 4
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.
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; and,
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)Stated that nothing in this section is intended to prohibit a
physician from taking appropriate action in an emergency.
AB 1907
Page 5
3)Defined "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)Stated 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
only so long as the emergency continues to exist.
5)Stated 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 may, in lieu of taking
the inmate to a facility for treatment, seek to continue
medication by giving 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)Allowed 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)Required 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)Gave 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)Required a court-appointed hearing officer to review the ex
parte request and shall have three business days to determine
AB 1907
Page 6
the merits of the department's request.
10)Stated that 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)Required that, if an inmate is being involuntarily
administered psychiatric medication on an emergency basis and
the county elects to seek an ex parte order pursuant to this
subdivision, 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 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; and,
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)Required that, if an inmate is being involuntarily
AB 1907
Page 7
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)Specified 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)Stated 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
subsequently gives his or her informed consent.
15)Stated 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)Specified that the county department of mental health must
provide the same due process protection as those given for the
initial order.
17)Stated that renewal orders are valid for one year from the
date of the hearing.
18)Required 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.
AB 1907
Page 8
19)Required 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)Required the renewal hearing be conducted prior to the
expiration of the current order.
21)Specified that in the event of a conflict between this
section and provisions of the Administrative Procedures Act,
as specified, this section controls.
22)Defined "counsel," for purposes of this section, to include a
county patient rights advocate.
23)Clarified that the process for involuntarily medicating an
inmate of CDCR also applies to inmates housed within a state
prison.
24)Clarified 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)Stated 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)Removed 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.
AB 1907
Page 9
27) Required 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)Specified that an ex parte order for emergency involuntary
medication of an inmate of CDCR may be issued if there is a
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)Specified 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)Required an ALJ to review the ex parte request and shall have
three business days to determine the merits of the CDCR's
request.
31)Clarified that in order to renew an existing involuntary
medication order, CDCR must file with the Office of
Administrative Hearings a written notice indicating the
department's intent to new the existing order.
32)Specified 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)Required 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
AB 1907
Page 10
additional basis must be proved by the department by clear and
convincing evidence by a hearing by an ALJ.
34)Required CDCR to adopt regulations to fully implement this
section.
35)Replaced references to "psychotropic" medications with
"psychiatric" medications.
36)Stated that it is the intent of the Legislature with this
bill and AB 1114 (Bonnie Lowenthal), Chapter 665, Statutes of
2011, to terminate the injunction stemming from the decision
in Keyhea v. Rushen (1986) 178 Cal. App. 3d 536, as specified,
and to replace the provisions of the injunction with the
provisions contained in Penal Code Section 2602.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : 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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
FN: 0004529
AB 1907
Page 11