BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 1960
AUTHOR: Perea
AMENDED: April 21, 2014
HEARING DATE: June 18, 2014
CONSULTANT: Diaz
SUBJECT : State summary criminal history information: state
hospitals.
SUMMARY : Requires a director of a state hospital or a
clinician, as defined, to obtain state summary criminal history
information on patients only to be used for the purposes
specified, including a patient's violence risk and appropriate
treatment planning.
Existing law:
1.Allows the state Department of Justice (DOJ) to furnish state
summary criminal history information (CHI) to specified
entities and, when authorized, federal-level CHI, upon a
showing of a compelling need.
2.Establishes the California Law Enforcement Telecommunications
System (CLETS), whereby qualified law enforcement agencies can
obtain information directly from federal, state, and local
computerized information files.
3.Requires CHI to be furnished by the court to the director of a
state hospital to which a person: is committed for treatment
after he or she pleads not guilty by reason of insanity (NGI);
is found mentally incompetent to stand trial (IST); is found
to be, as a result of mental disorder or impairment by chronic
alcoholism, gravely disabled or a danger to himself, herself,
or others; has attempted or inflicted physical harm to another
person or has made a serious threat of substantial harm
against another person, as a result of mental disorder or
defect while committed for treatment; or is a mentally
disordered sex offender, as specified. Requires inclusion of
the request for evaluation or the order committing the person
to a treatment facility. Allows the director of a state
hospital to receive the CHI from the law enforcement agency
that referred the person for evaluation and treatment, as
specified. Provides that CHI obtained under this provision is
not to be included in any document that will become part of a
Continued---
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public record.
4.Punishes as a misdemeanor any person authorized by law to
receive CHI who knowingly furnishes CHI to a person who is not
authorized by law to receive it.
This bill:
1.Requires a director of a state hospital or a clinician to
obtain CHI for a patient committed to a state hospital.
Defines "clinician" as a state-licensed mental health
professional working within the Department of State Hospitals
(DSH) who has received, and is current in, CLETS training as
required by DOJ, as specified.
2.Allows CHI to be obtained through CLETS by a law enforcement
officer. Requires law enforcement to cooperate with requests
for CHI and requires the CHI to be provided to the requesting
entity in a timely manner. Allows DSH law enforcement
personnel to act as law enforcement personnel allowed to
obtain CHI through CLETS.
3.Requires CHI obtained through CLETS to be used to assess the
violence risk of a patient, to assess the appropriate
placement of a patient; for treatment purposes of a patient;
for use in preparing periodic reports to courts as required by
statute; or, to determine a patient's progress or fitness for
release.
4.Requires CHI to be placed in a patient's confidential file, to
be accessed only by a director of a state hospital or a
clinician, and to be removed from the file and destroyed
within 30 days of a patient's discharge from a state hospital.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, negligible cost to DSH, as a CLETS terminal used by
DSH police is proximate, and in minor, absorbable costs for
clinician CLETS training.
PRIOR VOTES :
Assembly Public Safety:7- 0
Assembly Appropriations:17- 0
Assembly Floor: 74- 2
COMMENTS :
1.Author's statement. According to the author, even though more
than 96 percent of new admissions are committed via the
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criminal justice system, currently DSH clinicians do not have
comprehensive access to up-to-date criminal history
information for all of these patients. This bill will provide
properly licensed and trained clinicians at state hospitals
with the information necessary to perform accurate violence
risk assessments; place patients appropriately within the
system; create better patient treatment plans; and, provide
reports to the court on the patient's progress or fitness for
release. This bill will help decrease the level of violence in
state hospitals, as well as create better treatment outcomes
for patients.
2.Background. According to DSH, the state hospital patient
population has shifted over the past 20 years, from a 20
percent forensic population in 1994 to the current 96 percent.
Forensic patients are committed for a variety of reasons,
including: IST; NGI; mentally disordered offenders (MDO); and,
sexually violent predators (SVP). There are 4,967 patients at
Atascadero, Coalinga, Metropolitan, Napa, and Patton state
hospitals comprising 1,350 NGI; 1,283 IST; 1,154 MDO; 897 SVP;
258 mentally ill California Department of Corrections and
Rehabilitation commitments; and 25 mentally disordered sex
offenders.
DSH states that despite the significant change, there is no
current legal, regulatory, or physical infrastructure in place
for state hospitals to effectively and safely treat patients
who have demonstrated severe psychiatric instability or
extremely aggressive behavior. DSH also states that currently
state hospitals are authorized to receive CHI for patients
committed as IST and NGI. However, the information must be
forwarded by the courts and is only obtained about 60 percent
of the time, is often not updated, and cannot be shared with
clinicians, who perform assessments for patient treatment,
placement, and violence risk.
According to DSH, in 2013, there were a total of 3,344
patient-on-patient assaults and 2,586 patient-on-staff
assaults at state hospitals. Of the total patient population,
62 percent are non-violent offenders, 36 percent committed 10
or fewer violent acts, and two percent committed 10 or more
violent acts. Of all the violent acts committed, 65 percent
are committed by those with 10 or fewer violent acts, and 35
percent are committed by those with 10 or more violent acts. A
small subset of the population, 116 people, commit the
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majority of aggressive acts. DSH states that the best
indicator of future behavior is past behavior; therefore, a
patient's CHI would enable them to properly assess violence
risk.
3.CHI. According to DOJ, state and local summary CHI is
confidential and access is strictly regulated by statute. DOJ
provides an automated service for CHI checks that may be
required as a condition of such things as employment,
licensing, and certification. Digitally scanned fingerprints
and related information can be submitted electronically to DOJ
within a matter of minutes and allows CHI to be processed
usually within 72 hours, according to DOJ's Web site. DOJ's
record retention policy is to maintain CHI until the subject
reaches 100 years of age. State summary CHI contains the
identification and criminal history of a person, such as name,
date of birth, physical description, fingerprints,
photographs, arrests, dispositions, and similar data.
4.CLETS. CLETS provides law enforcement and criminal justice
agencies access to various databases and the ability to
transmit and receive point-to-point administrative messages to
other agencies within California or via the National Law
Enforcement Telecommunications System. The CLETS Policies,
Practices, and Procedures document states that agencies
desiring to obtain access the system must submit an
application to the CLETS Executive Secretary for approval by
the CLETS Advisory Committee. All agencies must file a
subscriber agreement, which must be updated every three years,
when the head of an agency changes, or immediately upon
request from the CLETS Executive Secretary. Each subscribing
agency must designate an Agency Terminal Coordinator as the
key person to coordinate with DOJ on matters pertaining to
DOJ's criminal justice databases. Agencies must also designate
a Security Point of Contact, who is the key person to
coordinate with DOJ on security matters pertaining to DOJ's
criminal justice databases. Only authorized law enforcement,
criminal justice personnel, or their lawfully authorized
designees can use CLETS, and any information is confidential
and for official use only.
5.Effect of CHI on patient care. While this bill includes
specific uses for, limits the access to, and requires the
timely destruction of CHI, DSH should ensure that the CHI does
not negatively influence patient treatment. One study
published in March 2014, Discrimination based on criminal
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record and healthcare utilization among men recently released
from prison: a descriptive study (Frank et al), found that
among 172 male participants, 42 percent reported a history of
criminal record discrimination by health care workers. Even
though this study is specific to recently released prisoners,
it cites the possibility of discrimination while receiving
care in a correctional setting.
6.Double referral. This bill has been double referred. Should it
pass out of this committee, it will be referred to the Senate
Public Safety Committee.
7.Related legislation. AB 1511 (Gaines), would authorize DOJ
and local criminal justice agencies to provide state and local
summary CHI to an animal control officer employed by a city,
county, or city and county for the purposes of performing his
or her duties.
SB 1136 (Huff), would require DOJ to provide county child
welfare agency personnel state summary CHI to monitor the
health and safety of persons receiving care, treatment, or
services from state-licensed foster homes, foster family
agencies, and group homes.
8.Previous legislation. AB 2222 (Block), Chapter 84, Statutes of
2012, provides that a public prosecutor is not prohibited from
accessing and obtaining information from the public
prosecutor's case management database to respond to a request
for information that can be disclosed to the public under the
California Public Records Act.
SB 1417 (Cox), Chapter 652, Statutes of 2010, provided access
to CHI to humane officers for purposes of performing duties to
prevent animal cruelty.
AB 428 (Fletcher), Chapter 441, Statutes of 2009, provided
access to CHI to any foreign government as necessary for a
person's application to adopt a child from the foreign nation.
9.Support. The sponsor and other supporters of the bill argue
that in order to conduct accurate assessments on a patient to
ensure proper placement, treatment planning, and violence
risk, as well as to ensure the safety of both patients and
staff, state hospital directors and clinicians must have
access to patients' CHI.
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10.Opposition. The California Attorneys for Criminal Justice
(CACJ) oppose this bill because it will increase the
likelihood of a medical determination being influenced by a
prior arrest record, even if the facts of the case do not
provide any insight into the medical condition of the patient.
CACJ argues that a crime that occurred multiple years ago can
be unnecessarily considered without any reason for violence
risk assessment.
SUPPORT AND OPPOSITION :
Support: California Department of State Hospitals (sponsor)
California Association of Psychiatric Technicians
California Council of Community Mental Health Agencies
California Statewide Law Enforcement Association
California State Sheriff's Association
Los Angeles County Sheriff's Department
Mental Health America of California
Union of American Physicians and Dentists/AFSCME-Local
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Oppose: California Attorneys for Criminal Justice
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