BILL ANALYSIS �
AB 1725
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Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 1725 (Maienschein) - As Introduced: February 14, 2014
SUBJECT : Mental health: conservatorship hearings for the
gravely disabled.
SUMMARY : Allows family members or interested persons to
petition for mental health conservatorship under the
Lanterman-Petris-Short (LPS) Act; allows courts to recommend LPS
conservatorship when a probate conservatorship has already been
established; and allows LPS conservatorship to be recommended
for individuals who are gravely disabled due to substance abuse.
Specifically, this bill :
1)Allows a family member or interested person to petition the
Probate Court for the establishment of a conservatorship,
provided that:
a) A professional person, as specified, has examined and
evaluated the person and determined that he or she is
gravely disabled as a result of a mental disorder or
impairment by chronic alcoholism or substance abuse and is
unwilling to accept, or incapable of accepting, voluntary
treatment;
b) The professional person has recommended a
conservatorship to the officer providing conservatorship
investigation in the county of residence; and,
c) The officer providing conservatorship investigation has
made a report, but declines to initiate conservatorship
proceedings.
2)Adds grave disability due to substance abuse to the criteria
for which LPS conservatorship may be recommended.
3)Allows the court to recommend an LPS conservatorship to the
officer providing conservatorship investigation of the
person's county of residence, based on a determination by the
court that a person for whom a probate conservatorship has
been established may be gravely disabled as a result of a
mental disorder or impairment by chronic alcoholism or
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substance abuse and is unwilling to accept, or incapable of
accepting treatment voluntarily. Requires the investigator to
subsequently file a report making a recommendation within 30
days.
EXISTING LAW :
1)Provides, under the LPS Act, for the involuntary commitment
and treatment of individuals with specified mental disorders
and for the protection of committed individuals, with the
declared goal of ending inappropriate, indefinite, and
involuntary commitment of mentally disordered persons,
developmentally disabled persons, and persons impaired by
chronic alcoholism.
2)Creates, under the LPS Act, a series of processes for
individuals to receive mental health treatment, including:
a) A process for a person to be taken into custody, upon
probable cause that they are a danger to self, a danger to
others, or gravely disabled as a result of a mental health
disorder, for a period of up to 72 hours, as specified;
b) For a person who has been detained for 72 hours, a
process for the person to be detained for up to14 days of
intensive treatment if the person continues to pose a
danger to self or others, or to be gravely disabled, and
the person has been unwilling or unable to accept voluntary
treatment;
c) For a person who has been detained for 14 days of
intensive treatment, a process for the person to be
detained for up to 30 days of intensive treatment if the
person remains gravely disabled and is unwilling or unable
to accept treatment voluntarily, or up to 180 days if the
person presents a demonstrated danger to others;
d) A process for the appointment of a conservator, known as
LPS conservatorship, for a person who is gravely disabled
as a result of a mental disorder or impairment by chronic
alcoholism, to provide individualized treatment,
supervision, and placement.
i) Allows the professional person in charge of a
facility providing 72-hour, 14-day, or 30-day treatment
to recommend conservatorship to the conservatorship
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investigator for a person who is gravely disabled and is
unwilling or unable to accept voluntary treatment;
ii) Requires the conservatorship investigator, if he
or she concurs with the recommendation, to petition the
superior court to establish LPS conservatorship or
temporary (up to 30 days) conservatorship;
iii) Requires the conservatorship investigator to
investigate all available alternatives and recommend
conservatorship only if no suitable alternatives are
available. Requires the investigator to provide a
report to the court that includes all relevant aspects
of the person's medical, psychological, financial,
family, vocational and social condition, and information
obtained from the person's family members, close
friends, and social worker or principal therapist;
iv) Allows the report to recommend for or against
giving the conservatee the right to: obtain a driver's
license; enter into contracts; vote; refuse or consent
to medical treatment; and possess a firearm;
v) Requires LPS conservatorships to terminate after
one year, but allows the conservator, if he or she
determines that conservatorship is still required, to
petition the court for additional one-year periods;
vi) Allows the initiation of LPS conservatorship
proceedings upon the recommendation of the medical
director of a state hospital, a professional person in
charge of a local mental health facility, a local mental
health director, or the Chief Deputy Secretary for
Juvenile Justice, to the conservatorship investigator,
under specified circumstances;
vii) Requires counties to designate the agency or
agencies to provide conservatorship investigation.
Allows counties to designate that conservatorship
services be provided by the public guardian or agency
providing public guardian services;
viii) Gives the person for whom conservatorship is
sought the right to demand a court or jury trial on the
issue of whether he or she is gravely disabled;
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ix) Provides that a person cannot be appointed an LPS
conservator if the person can survive safely with the
help of responsible family, friends, or others who
indicate in writing that they are willing and able to
help provide food, clothing, or shelter; and,
x) Requires the facility treating a person for whom
LPS conservatorship is sought to advise the person that
he or she may request that information about the time
and place of the conservatorship hearing not be given to
family members, in those circumstances where the
proposed conservator is not a family member.
3)Establishes Laura's Law, which allows county boards of
supervisors, by resolution, to authorize court-ordered
assisted outpatient treatment for a person with a mental
illness who has a history of noncompliance with treatment and
who is likely to be a danger to self or others, or gravely
disabled, without treatment.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, probate courts
today are hampered in their ability to ensure proper care and
treatment of conservatees who suffer from a mental illness,
and there currently are a significant number of people who are
not getting the care and treatment they need. Under the LPS
Act, the individuals authorized to initiate conservatorship
proceedings do not include probate judges or family members.
The author contends that some counties are becoming more and
more reluctant to initiate necessary conservatorship
proceedings. This becomes an even greater issue with gravely
disabled homeless persons who have no additional help or
anyone to be a proponent for their well-being. They are
continually dependent on other services that have limited
availability for their survival and are unable to receive the
assistance they really need.
The author writes that, under current law, only a professional
from the agency or facility providing intensive treatment or
evaluation services may make a recommendation to the
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conservatorship investigator for an LPS conservatorship. At
the same time, the law governing traditional probate
conservatorships, only allows for treatment of a conservatee
in a secured facility, or involuntary administration of
medications for a conservatee who has a diagnosis of dementia,
but not for any mental health diagnosis or issue relating to
substance abuse. The author contends that this creates a gap
in treatment availability, making it harder for individuals
who are not already hospitalized but whose problems stem from
mental illness, alcoholism, or drug abuse, and thus cannot
qualify for treatment under the Probate Code. By allowing
family members and probate judges to initiate LPS
conservatorship proceedings, this bill is intended to remove
obstacles to treatment for these individuals.
2)BACKGROUND .
a) LPS conservatorship process. The LPS Act creates a
series of processes for the involuntary treatment of
individuals who are unwilling or unable to accept necessary
mental health treatment, generally conditional upon the
person being gravely disabled or posing a danger to self or
others. An LPS conservatorship, which lasts for a year
before it must be reinitiated and reapproved, is typically
sought after an individual has received 72-hour evaluation
and treatment and 14-day intensive treatment and continues
to be gravely disabled. The process begins when the
professional staff of the psychiatric facility, after
having evaluated and treated the individual, makes a
recommendation of conservatorship to the county
conservatorship investigator (typically designated as an
office in the county, such as the Public Guardian's Office
or the Office of the Public Conservator). The county
conservatorship investigator is then required to conduct a
comprehensive investigation and file a petition for
conservatorship only if, after considering all available
alternatives to conservatorship, there are no suitable
alternatives available.
b) Probate conservatorships. Conservatorships governed by
the Probate Code are the most common type of
conservatorship. Probate conservatorships can be
established for adults who are unable to provide properly
for their personal needs for physical health, food,
clothing, or shelter. These conservatees are often elderly
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people, but can also be seriously impaired younger people.
A petition for probate conservatorship can be filed by a
spouse, domestic partner, or family member of the proposed
conservatee, any interested state or local agency, the
conservatee himself or herself, or any other interested
person or friend. Current law contains provisions related
to conservatees who are unable to give informed consent for
medical treatment and gives the conservator the exclusive
authority to make health care decisions for the
conservatee, including requiring the conservatee to receive
health care, whether or not the conservatee objects. For
conservatees with dementia, current law allows the
conservator to place the conservatee in a locked nursing or
residential care facility and authorize the administration
of medications to treat dementia, provided that the court
makes specified findings. However, current law does not
contain provisions that allow a probate conservator to
place a conservatee in a locked facility for any reason
other than dementia, including mental illness.
3)MENTAL HEALTH NEEDS ASSESSMENT . In February 2012 the
Department of Health Care Services commissioned a Mental
Health and Substance Use System Needs Assessment
to satisfy federal requirements as part of California's
Section 1115 Bridge to Reform waiver approval. The report
finds that there is an inadequate supply and a
mal-distribution of inpatient psychiatric beds and of
psychiatrists in the state. The report notes that a workforce
needs assessment from 2009 indicated that an additional 336
general psychiatrist full time equivalent (FTE) positions, 241
child/adolescent psychiatrist FTE positions, and 112 geriatric
psychiatrist FTE positions were needed at that time in order
to meet demand in the public mental health system. The report
further notes that rural or frontier areas of the state are
mostly devoid of psychiatric beds: 26 counties have no
inpatient psychiatric services of any kind. The report
further notes that 27 psychiatric facilities located in 12 of
the 58 counties are considered institutions for mental
diseases and therefore cannot bill Medi-Cal for inpatient
psychiatric services provided to their beneficiaries, further
limiting access. In addition, the report notes that data
provided by the federal Health Resources and Services
Administration on mental health professional shortage areas
indicates that approximately 3.8 million people, or 10.2% of
the population of California, lives in one of the mental
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health professional shortage areas.
4)OPPOSITION . Disability Rights California, in opposition,
writes that the bill's expansion of involuntary treatment is a
superficial way to approach the problem and completely
disregards the fact that the proposal results in a deprivation
of liberty. Disability Rights supports the proposal that
allows a probate court to recommend conservatorship for
gravely disabled proposed conservatees, but recommends an
amendment that allows the conservatee to be present at the
hearing with a right to attorney. Disability Rights argues,
however, that it is problematic to allow a petition for
conservatorship to be filed when the conservatorship
investigator does not recommend conservatorship. Disability
Rights also believes it is troubling to allow family members
to petition for LPS conservatorship, as too often they have
seen situations where people have been committed by their
families when other less restrictive alternatives work better
and encourage recovery. Finally, Disability Rights argues it
is unnecessary to expand LPS conservatorship to include
individuals with substance abuse disorders because those
individuals are already subject to probate conservatorship,
and holding these individuals in mental health treatment
facilities is inappropriate, as there is a separate treatment
system for substance use disorders.
The California State Association of Counties (CSAC), also in
opposition, argues that the currently required participation
of a medical professional is an important check to ensure that
the needs and desires of the proposed conservatee are properly
balanced against the impact on themselves and those around
them. CSAC asserts that although this bill may increase the
number of conservatees, it will not change the current lack of
capacity and funding for effective treatment services
statewide.
5)RELATED LEGISLATION .
a) AB 1265 (Conway), which failed passage in the Assembly
Judiciary Committee, would have increased the maximum
period of imposed treatment under Laura's Law from six
months to one year.
b) AB 1367 (Mansoor), which died without a hearing in the
Assembly Health Committee, would have allowed Mental Health
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Services Act (MHSA) funding for Laura's Law treatment for
training for local educational agencies to identify
students with mental health issues that may result in a
threat to themselves or others.
c) AB 2266 (Waldron), which is pending in the Assembly
Judiciary Committee, increases the maximum period of
imposed treatment under Laura's Law from six months to one
year and allows professional staff of 72-hour and 14-day
treatment facilities to request that an individual be
subject Laura's Law treatment.
d) AB 987 (Maienschein), which died without a hearing in
the Assembly Health Committee, would have required the
conservatorship investigator to petition for
conservatorship if specified professional staff of a
treatment facility recommends conservatorship, thereby
eliminating the conservatorship investigator's discretion
to not concur with the professional staff's recommendation.
e) SB 364 (Steinberg), Chapter 567, Statutes of 2013,
broadens the types of facilities that can be used for
purposes of a 72-hour treatment and evaluation under the
LPS Act and permits county mental health directors to
develop procedures for the designation and training of
professionals that carry out functions related to 72-hour
holds.
f) SB 585 (Steinberg and Correa), Chapter 288, Statutes of
2013, clarifies that MHSA funds and various County
Realignment accounts may be used to provide mental health
services under Laura's Law and allows counties to opt to
implement Laura's Law through the county budget process.
6)PREVIOUS LEGISLATION .
a) SB 665 (Petris), Chapter 681, Statutes of 1991,
establishes the right, under the LPS Act, to refuse
antipsychotic medication and establishes hearing procedures
to determine a person's capacity to refuse treatment with
antipsychotic medication.
b) AB 2541 (Bronzan and Mojonnier), Chapter 1286, Statutes
of 1985, authorizes county mental health programs to
initiate services to various target populations, requires
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various studies and planning activities, and prohibits
mental health personnel from instructing law enforcement
personnel to take individuals detained for mental health
evaluations to jail solely due to the unavailability of a
mental health facility bed.
c) AB 1424 (Thomson), Chapter 506, Statutes of 2001, makes
various changes to the LPS Act to: increase the involvement
of family members in commitment hearings for the mentally
ill; require more use of a patient's medical and
psychiatric records in these hearings; and prohibit health
plans and insurers from using the commitment status of a
mentally ill person to determine eligibility for claim
reimbursement.
d) SB 677 (Lanterman, Petris, and Short), Chapter 1667,
Statutes of 1967, enacts the LPS Act, which governs
involuntary civil commitment for individuals with mental
illness, with the intent to end inappropriate, indefinite,
and involuntary commitment and provide for prompt
evaluation and treatment.
7)DOUBLE REFERRAL . This bill is double referred. Should this
bill pass out of this committee, it will be referred to the
Assembly Committee on Judiciary.
8)POLICY COMMENTS .
a) This bill contains three proposals: i) allow family
members and other interested persons to petition for
conservatorship; ii) make grave disability resulting from
substance abuse acceptable grounds for a recommendation of
conservatorship; and iii) allow probate courts to initiate
conservatorship proceedings. The author has indicated
that, in response to objections of opponents, he intends to
remove the first two proposals from this bill. The third
proposal, which addresses referral by probate courts, will
be considered in more detail in the Assembly Judiciary
Committee.
b) Under current law, the LPS conservatorship process is
initiated by a health care provider who makes a
recommendation for LPS conservatorship to the county
conservatorship investigator. This bill, by allowing the
initial recommendation to come from a probate court,
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bypasses the provider, creating subsequent gaps in the
protections that currently exist in the LPS conservatorship
process. Because there would be no health care provider,
known in law as the professional person, or facility at the
start of the process, the bill should be amended to specify
who will be responsible for the following requirements: i)
a professional person must examine and evaluate the person
and determine that he or she is gravely disabled prior to
initiating the conservatorship process; ii) the facility
providing treatment to the individual must disclose any
records or information to facilitate the investigation;
iii) the recommendation and records of a professional
person concerning the mental condition and treatment of the
conservatee or proposed conservatee must be received in
evidence if that person's presence at a hearing is waived;
iv) the investigator is required to base his or her
recommendation about what legal rights the conservatee
should be denied based on the professional person's
determination; v) the investigator is required to consult
with the initiating professional person in his
recommendation about the conservator's special powers; vi)
the facility treating the individual is required to advise
the person of his right to request that family not be
present at the hearing, as specified. The author has
agreed to amend the bill to fill these gaps in the Assembly
Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
Opposition
Disability Rights California
California State Association of Counties
California Association of Public Administrators, Public
Guardians, and Public Conservators
California Mental Health Director's Association
San Joaquin County Health Care Services Agency
Analysis Prepared by : Ben Russell / HEALTH / (916) 319-2097
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