BILL ANALYSIS �
SB 678
Page 1
Date of Hearing: July 5, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 678 (Negrete McLeod) - As Amended: June 29, 2011
SUMMARY : Authorizes counties to form community corrections
multi- disciplinary teams for the purpose of providing
evidence-based rehabilitation programs, and allows the members
of those teams to share privileged information of probationers.
1)Authorizes counties to convene "community corrections
multidisciplinary teams" for purposes of providing
evidence-based practices and supervision.
2)Provides that every member of a community corrections
multidisciplinary team who receives non-privileged information
or writings shall be under the same privacy and
confidentiality obligations and subject to the same penalties
for violating those obligations as the person disclosing or
providing the information or writings. The information
obtained shall be maintained in a manner that ensures the
protection of confidentiality.
3)Requires that each community corrections multidisciplinary
team maintain an informed consent policy in order to authorize
the sharing of confidential, privileged, or protected
information among members of the team. The policy shall be
developed and implemented by the county probation officer with
the advice of the local Community Corrections Partnership.
The informed consent procedures shall be in compliance with
state and federal laws protecting the confidentiality of the
types of information and writings that may be in the files
maintained by the community corrections multidisciplinary
team. The informed consent procedures shall provide the
probationer with an opportunity to consult with an attorney
prior to consenting to the release of information, have an
attorney present at the intake process and contain provisions
to inform the probationer of the types of information and
writings that may be shared between members of the community
corrections multidisciplinary team and the types of
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information and writings the probation officer will report to
the court granting probation. Pursuant to this section, a
probationer who does not provide their written consent to
participate in the multidisciplinary team shall not be subject
to revocation solely on these grounds.
4)Defines "community corrections" as the placement of persons
convicted of a felony offense under probation supervision,
with conditions imposed by a court for a specified period.
5)Defines a "multidisciplinary team" as any team of three or
more persons, the members of which are engaged in providing
community corrections supervision, and evidence-based
rehabilitation programs. The team may include, but is not
limited to:
a) Probation officers.
b) Police officers, sheriffs' deputies, and other law
enforcement officers.
c) Social workers.
d) Health and mental health providers.
e) Substance abuse treatment providers.
f) Education professionals.
g) Employment coordinators.
h) Representatives from community-based organizations with
experience in successfully providing rehabilitative
services.
6)Defines "evidence-based practices" as supervision policies,
procedures, programs, and practices demonstrated by scientific
research to reduce recidivism among individuals under
probation, parole or post-release supervision.
7)States that its provisions shall not be construed to
independently authorize access to, or possession of,
information from local, state, or federal information systems
or databases that multidisciplinary team members are
authorized to access or possess in the course of their duties.
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8)In each county utilizing a community corrections
multidisciplinary team, the county probation officer, advised
by the local Community Corrections Partnership, shall develop
and implement a memorandum of understanding between the
agencies participating in the community corrections
multidisciplinary team that includes, but is not limited to,
the role of each participating team member and agency, a
description of the types of information and writings that may
be shared between team members, the circumstances under which
the information will be shared, a description of the
information and writings the probation officer will report to
the court, an informed consent policy, and procedures for
administering the informed consent policy.
EXISTING LAW :
1)Creates multidisciplinary teams to provide treatment plans for
juvenile wards of the court who are seriously emotionally
disturbed, have a serious mental disorder, or have a
developmental disability. �Welfare and Institutions Code
(WIC) Section 713.]
2)Creates multidisciplinary teams to provide services to
seriously emotionally disturbed and special needs children and
other county family and children's services programs, as
specified. (WIC Section 18986.40, et seq.)
3)Creates multidisciplinary teams who are trained in the
prevention, identification, management, or treatment of abuse
of elderly or dependent adults. (WIC Section 15610.55, et
seq.)
4)Includes legislative intent that "child abuse and neglect
prevention and intervention programs be encouraged by the
funding of agencies addressing needs of children at high risk
of abuse or neglect and their families." �WIC Section
18960(a).]
5)Includes "multidisciplinary team services" under programs
eligible for funding provided under these provisions. �WIC
Section 18961(a)(4).]
6)Provides that "multidisciplinary personnel" is any team of
three or more persons who are trained in the prevention,
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identification, and treatment of child abuse and neglect cases
and who are qualified to provide a broad range of services
related to child abuse. The team may include, but not be
limited to:
a) Psychiatrists, psychologists, marriage and family
therapists, or other trained counseling personnel.
b) Police officers or other law enforcement agents.
c) Medical personnel with sufficient training to provide
health services.
d) Social workers with experience or training in child
abuse prevention.
e) Any public or private school teacher, administrative
officer, supervisor of child welfare and attendance, or
certificated pupil personnel employee. �WIC Section
18951(d).]
7)Provides that "members of a multidisciplinary personnel team
engaged in the prevention, identification, and treatment of
child abuse may disclose and exchange information and writings
to and with one another relating to any incidents of child
abuse that may also be a part of a juvenile court record or
otherwise designated as confidential under state law if the
member of the team having that information or writing
reasonably believes it is generally relevant to the
prevention, identification, or treatment of child abuse. All
discussions relative to the disclosure or exchange of any such
information or writings during team meetings are confidential
and, notwithstanding any other provision of law, testimony
concerning any such discussion is not admissible in any
criminal, civil, or juvenile court proceeding." (WIC Section
830.) As used in this section, "multidisciplinary personnel
team" means any team of three or more persons, as specified,
the members of which are trained in the prevention,
identification, and treatment of child abuse and are qualified
to provide a broad range of services related to child abuse.
(WIC Section 18951.)
8)Provides that, with respect to applications and records
concerning any form of public social services for which
grants-in-aid, "the activities of a multidisciplinary
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personnel team engaged in the prevention, identification, and
treatment of child abuse or the abuse of elder or dependent
persons are activities performed in the administration of
public social services, and a member of the team may disclose
and exchange any information or writing that also is kept or
maintained in connection with any program of public social
services or otherwise designated as confidential under state
law which he or she reasonably believes is relevant to the
prevention, identification, or treatment of child abuse or the
abuse of elder or dependent persons to other members of the
team. All discussions relative to the disclosure or exchange
of any such information or writing during team meetings are
confidential and, notwithstanding any other provision of law,
testimony concerning any such discussion is not admissible in
any criminal, civil, or juvenile court proceeding. . . . As
used in this section, 'multidisciplinary personnel team' means
any team of three or more persons, as specified, the members
of which are trained in the prevention, identification, and
treatment of child abuse or the abuse of elder or dependent
persons and are qualified to provide a broad range of services
related to child abuse or the abuse of elder or dependent
persons." (WIC Section 10850.1.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 678 seeks to
clarify the probation officer's authority to develop and
implement community corrections programs that incorporate MDT
�multidisciplinary teams]. MDT's bring experts from various
law enforcement agencies and health departments together for
the benefit of helping rehabilitate a criminal offender.
While there are multiple California statutes authorizing
juvenile justice multi-disciplinary teams as well as MDT's for
child abuse investigations and mental health treatment, there
are no statutes authorizing adult criminal justice
multi-disciplinary teams for the supervision and treatment of
adult probation offenders.
"This was not necessarily a problem under the 'traditional'
approach to adult probation supervision in California.
However, with the development of evidence-based programming,
supervision and treatment models and the requirement that
funding from SB 678 (Leno) of 2010 be spent on evidence-based
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programs, there is a need to clarify the authority for the
probation officer to use MDT's and to hold all members of the
team accountable for keeping specified information
confidential.
"This bill does not change the type of information or degree to
which these MDT's can share information; this information is
still sanctioned by current statute and enforced accordingly.
As such, every member of a MDT who receives that information
or writings is under the same privacy and confidentiality
obligations and subject to the same penalties for violating
those obligations as the person disclosing or providing the
information or writings.
"SB 678 includes additional protections by requiring that each
community corrections MDT develop and maintain an informed
consent policy to inform the probationer of the types of
information and writings that may be shared between members of
the community corrections multidisciplinary team. The bill
also provides the probationer with an opportunity to consult
with an attorney prior to consenting to the release of
information. Further, counties that convene an MDT shall
develop and implement a memorandum of understanding between
the agencies participating in the multidisciplinary team that
includes, but is not limited to, the role of each
participating team member and agency, a description of the
types of information and writings that may be shared between
team members, the circumstances under which the information
will be shared, a description of the information and writings
the probation officer will report to the court, an informed
consent policy, and procedures for administering the informed
consent policy.
"This bill affords greater protection to both the probationer
and the entities participating in the MDT."
2)Multidisciplinary Teams in Other Contexts : Current law grants
authority, and in some cases mandates creation of, MDTs to
deal with complex social issues, including the prevention of
elder (WIC Section 15610.55, et seq.) and child abuse �WIC
Section 18961(a)(4)], dealing with juvenile wards of the court
with serious mental illness (WIC Section 713), and supporting
emotionally disturbed children and their families (WIC Section
18986.40, et seq.). The concept and purpose of MDTs is to
gather the collective knowledge and input of several experts
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specializing in different aspects of a social problem and pool
their knowledge and skills to formulate a comprehensive and
coordinated response to assisting a particularly vulnerable
population.
Clearly, at the core of this enterprise is the sharing of
pertinent information. The statutory provisions listed above
have established specific, highly detailed rules and
parameters for the sharing of information by MDT members in
their specific context, each of whom may have access to
information that the other MDT members may not legally be
permitted to obtain or possess. Under what conditions
information may be shared and for what purposes are issues at
the center of the MDT approach.
A recent report by the California Endowment on the use of MDTs
in juvenile probation cases addressed the prerequisites that
may be necessary to allow information sharing between juvenile
MDT members:
"Even if MOUs are established with providers participating in
MDTs to share information, confidentiality issues including
youths' Health Insurance Portability and Accountability Act
(HIPPA) rights, Family Educational Rights and Privacy (FERPA),
their right to consent to services, juvenile court
confidentiality rights, and parental rights still exist. In
Los Angeles County, consent from youth and parents is needed
first to open the doors for cross-systems information sharing.
Other counties established standing court orders to
facilitate the sharing of information." �Multidisciplinary
Teams, California Endowment (December 2010).]
The sponsors of this bill have had negotiations with the
American Civil Liberties Union (ACLU) and the California
Public Defenders' Association regarding what sort of waivers
their clients might be willing to sign in order to participate
in an MDT. Despite the parties devoting a great deal of time
to these negotiations, staff was informed that they could not
reach agreement on the nature and scope of any such waivers.
It is not clear to what extent this bill is intended to or
would resolve those issues.
3)Amended after Senate Public Safety to Remove Non-Privileged
Information : Originally, this bill limited the information
shared between MDT members to non-privileged information. The
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Senate Public Safety Committee suggested that the sharing of
privileged information, such as medical information, would be
beneficial to the treatment of probationers. However, the
Senate Public Safety Committee also suggested that the author
amend this bill to include a prohibition on the use of
privileged information in criminal settings. After this bill
passed the Senate Public Safety Committee, this bill was
amended to include the sharing privileged information;
however, the use immunity provision, which would prevent the
use of privileged information in criminal proceedings, was not
included.
4)Privilege in Criminal Proceedings : Privileges give special
treatment to certain relationships in which society has deemed
that the relationship is so important that communication must
be honest and forthright. Such relationships include
attorney/client, husband/wife, priest/penitent,
doctor/patient, and therapist/patient. Information conveyed
in a privileged communication cannot be used in court
proceedings against the holder of the privilege. The holder
of privilege may waive the privilege, but the
therapist/doctor/priest/attorney cannot disclose that
information without the consent of the holder.
a) Physician/Patient Privilege : Out of respect for the
intimacy of the typical relationships between doctors and
patients, the law treats statements made by patients to
their doctors as privileged.
b) Therapist/Patient Privilege : Related to the
physician/patient privilege is the psychotherapist/patient
privilege, recognized in all states. This privilege has a
broader application than the physician/patient privilege
because it covers statements made to therapists who are not
physicians. The privilege has been adopted by judicial
decision and by legislation because of the beliefs that
psychotherapy is valuable to individuals and society, and
that it cannot be performed effectively unless a patient is
assured that statements to the therapist will be
confidential.
5)The Elimination of Privileged Communications to MDT Members :
In general, therapy and medical practices are most effective
when they encourage frank and honest conversations between
doctors and patients, this bill eliminates that protection.
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This bill permits MDT members to share privileged information
about persons on probation and under the supervision of MDT
members. In certain contexts, the sharing of privileged
information seems rational and helpful. For instance, the
sharing of some basic medical information between drug
treatment providers and medical professionals assists in the
treatment and rehabilitation of a probationer. However, there
are serious constitutional concerns when the area of criminal
privilege is compromised. For instance, if a probationer
tells a mental health professional that he or she has
committed a criminal offense and that information is relayed
to law enforcement or probation (who are also MDT members),
the probationer's psychotherapist-patient privilege has been
compromised.
6)Use Immunity Provision : The Senate Public Safety Committee,
the ACLU, and the Public Defenders' Association have all
suggested inserting a use immunity provision. This provision
would preserve the ability of the MDT to share necessary
privileged information, but a use immunity provision would
preserve the probationer's privilege in criminal matters,
thereby encouraging the probationer to be forthright, honest,
and clear with treatment providers and encouraging more
effective rehabilitation. The Senate Public Safety Committee
suggested the following amendment:
"Information obtained in connection with a community corrections
MDT shall not be admissible in any criminal, civil, or
juvenile court proceeding."
The author's office chose not to amend this bill as suggested by
Senate Public Safety and, instead, amended the bill after it
passed Senate Public Safety to remove the original language
which only permitted the sharing of non-privileged information
between MDT members to permit the sharing of privileged
information.
This bill's sponsors do not wish to include the use immunity
provision because they believe that if a probationer admits
that he or she committed a heinous crime in the presence of a
MDT member, which is privileged information, that the MDT
members should be able to communicate that information amongst
each other and that information should be used in a
prosecution and/or a probation revocation proceeding.
However, under existing law, MDT members would not be able to
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use that information if it is privileged. The use immunity
provision only preserves CURRENT LAW as it applies to the use
of privileged information. This bill expands the exceptions
to privileged information in criminal proceedings, thereby
undercutting the therapeutic and rehabilitative benefits of
sharing honest information in a confidential manner with
doctors and treatment providers.
7)Existing Exception to Therapist/Patient Privilege for Imminent
Threats of Danger : Tarasoff v. Regents of the University of
California, 17 Cal.3d 425 (1976), was a case in which the
Supreme Court of California held that a mental health
professional has a duty to protect an individual being
threatened with bodily harm by a patient. The original 1974
decision mandated warning the threatened individual, but a
1976 rehearing of the case by the California Supreme Court
called for a "duty to protect" the intended victim. The
professional may discharge the duty in several ways, including
notifying police, warning the intended victim, and/or taking
other reasonable steps to protect the threatened individual.
Even with the use immunity provision proposed by this bill's
opponents and the Senate Public Safety Committee, this
exception applies to MDT members providing therapy to the
probationer.
8)Encourages Ineffective Treatment and Rehabilitation : The
provisions of this bill, by allowing information told to
doctors and therapists to be shared with law enforcement and
probation officers, actually encourage patients and
probationers to lie to treatment providers. For instance,
nothing in this bill stops a treatment provider from sharing
with law enforcement or probation that a probationer has
relapsed and is using drugs. Would not treatment be more
effective if a drug addict were able to be honest with
therapists about the motivations and reasons behind their drug
addiction, rather than lying to their therapist about their
drug use because they are afraid they will be sent to jail?
9)Informed Consent : This bill provides for persons granted
probation to sign away their rights to privileged information
and participate in a MDT probation program. Additionally,
this bill provides for the prospective probationer to be given
the opportunity to consult an attorney and/or have an attorney
present at the time he or she signs the waiver. Public
defenders do not have the time or finances to accompany their
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clients to probation intakes.
Furthermore, this bill states that persons shall not be denied
probation SOLELY on the refusal to sign up for the MDT. This
means that the refusal to participate in an MDT may be used as
a factor for the denial of probation or conceivably the
revocation of probation. Potential probationers may be
violated or refused probation for choosing not to sign away
their rights to have privileged information told to doctors
and therapists used against them in a court of law.
Additionally, this bill does not require that counties
maintain probation supervision that does not require
participants sign away their rights to have privileged
communications with doctors and therapists. Prospective
probationers and probationers should not have to sign away
these rights to participate in probation.
10)Argument in Support : The American Federation of State,
County and Municipal Employees states, "SB 678 would authorize
counties, for the purposes of providing evidence-based
practices and supervision, to convene community corrections
multidisciplinary teams engaged in providing community
corrections supervision and evidence-based rehabilitation
programs. Under this bill, each community corrections
multidisciplinary team would maintain an informed consent
policy in order to authorize the sharing of confidential,
privileged, or protected information. Moreover, the county
probation officer in each county utilizing a team would be
required to develop and implement a memorandum of
understanding between the agencies participating in the team.
The bill also provides that every member of the MDT would be
subject to the same privacy and confidentiality obligations,
and penalties for violation thereof, as the person who
discloses the information to them."
11)Argument in Opposition : The American Civil Liberties Union
states, "SB 678 would authorize counties to create 'community
corrections multidisciplinary teams' for the purpose of
'providing evidence-based practices and supervision.' We
appreciate many of the amendments taken in the Senate to
require an informed consent policy and memorandums of
understanding among the agencies participating in community
corrections for people placed on probation. However, we
continue to be troubled by a few issues:
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a) "While we have asked for evidence of the 'need' for this
legislation we have not been provided that information.
Nor have we been provided with information that this
community corrections approach actually works.
b) "We strongly urge the author and committee to consider
language to ensure that probationers who refuse to consent
to sharing of their information or refuse to agree to
participate in the community corrections model are not
penalized. Draft language for your consideration:
"The probationer cannot be denied probation or penalized for
not agreeing to provide consent to the release of
information or writings or for not agreeing to participate
in the community corrections multidisciplinary team
process.
c) "Further, we strongly urge the author and committee to
consider language that would prohibit the admissibility of
information obtained from the probationer to non-law
enforcement multidisciplinary team members, unless
otherwise required by law. We are concerned that
probationers should be able to talk freely with social
workers or education professionals etc. without that
information being used against them in a legal proceeding.
Draft language for your consideration:
"Information provided to non-law enforcement personnel by the
probationer in connection with the community corrections
multidisciplinary team process shall not be admissible in
any criminal, civil, or juvenile court proceeding, unless
otherwise required by law or the probationer gives
affirmative written consent for the use in the specific
proceeding."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal Employees
California Probation Parole and Correctional Association
Chief Probation Officers of California
Opposition
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American Civil Liberties Union
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744